Critical Essay—Harry Potter and the Neoliberal Hallows: Copyright, Counterpublics and 2.0 Fan Fiction

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Liberty Kohn, Winona State University



Many critical theorists argue for the public sphere’s basis in neoliberal discourses and logics. These theorists suggest that the operations of the public sphere are dictated by the economic logic of the free market, not the discourses of social justice and democracy (Giroux 2007; McLaren 2005). However, Henry Jenkins (2006), contends that web 2.0 convergence culture can offer challenges to normative discourses through it flow across multiple media. Yet Jenkins also acknowledges that 2.0 production can easily be absorbed by commerce for market-based circulation.

This article examines two cases of Harry Potter fan fiction that were threatened with copyright infringement litigation. Close comparison of these two cases suggests that Warner Brothers can selectively apply copyright infringement litigation to alter the circulation of fan fiction that threatens franchise loyalty and emotional attachment to the original Potter series, while fan fiction that reinforces franchise loyalty and emotional attachment has been allowed to increase and circulate despite clear copyright infringement. This article examines satire, a mode legally defined as a new work of political statement, that has been targeted for prosecution because of satire’s potential ridicule of beloved fan texts whose reputation is of great economic value to copyright holders. The prosecution of satire through copyright infringement places commerce and free speech in opposition in the public sphere.

Lastly, this article situates these cases of fan fiction in public sphere and counterpublic theory, which suggests that if fan communities are allowed to circulate their writing because of its economic potential to the copyright holder, then these communities and their writing cannot be viewed as a “critical” counterpublic (Asen 2009). This lack of critical-ness suggests rhetoricians must analyze the web 2.0 public sphere for neoliberal sovereignty and its effects upon the uses, circulation, and critical values allowed in fan fiction.



Pundits and scholars predicted that Web 2.0’s user-friendly technology would provide new forms of access to and participation in the public sphere. However, bright utopian visions often give way to the reality of older, adjusting, institutional forces. Erin Dietel-McLaughlin posits in a 2009 special edition of Computers and Composition Online that Web 2.0’s promise of facilitating greater participation is under threat of compromise. She reports that

[a]s social networking sites and other Web 2.0 incarnations continue to grow, national media outlets, major corporations, and political figures seek ways to capitalize upon and control the public discourse within these highly networked Web spaces. Ironically, the involvement of these formal institutions threatens to undermine that which has made the Web 2.0 movement so exciting in the first place. (web)

As 2.0 evolves, its usages and interested discourse communities continue to texture and retexture its functions, and this retexturing involves a variety of new economies and attendant psychologies. Paul Booth has identified the digi-gratis market of 2.0, which is based in a gift economy. Money is not exchanged, but the digi-gratis “retains elements of a market structure” in the exchange of services and digital gifts (24). Lawrence Lessig has argued that the web can offer sharing and commercial economies simultaneously (Remix 119), and Booth suggests that the Web Commons “is a mind-set, not a specific form of technology” (23). However, the public sphere’s historical texture is created not only by new forms of political participation and cultural capital, but by traditional economic interests, market economies, and legal traditions. In our current historical moment, which combines advances in 2.0 technology with greater neoliberal market intrusions into all social structures, academia should not only expect, but must analyze intrusions by traditional markets and spheres into the new historical texturing of the 2.0 era.

This article will contrast two examples of Harry Potter fan fiction, including one from the world of 2.0 fan fiction that softened Warner Brothers’ approach to legal prosecution of copyright infringement. This article argues that a contrast of the cases of teen fan fiction writer and web editor Heather Lawver and adult satire artist Brad Neely suggests a new 2.0-era concept of fan fiction and copyright. This new concept is one in which satire’s historical and legal status as protected political speech can be overridden, at least in cases of fan fiction, by the economic and legal sovereignty of corporations that own and selectively apply copyrights.

Importantly, the new copyright model matches the basic role of consumerism in the neoliberal public sphere as defined by Henry Giroux, wherein citizens who show no promise of being good consumers are punished, while citizens whose behaviors and material circumstances are oriented toward consumerism are rewarded (23-24). In comparing the cases of Lawver and Neely, one sees that writers or communities such as teen Lawver’s fan community are exempted from legal prosecution and remain free to increase production and circulation of their writing on the web despite producing fan fiction en masse that infringes upon Warner Brothers copyrights.

Why is Lawver’s fan fiction not prosecuted when Warner Brothers has in the past threatened to prosecute all communities of fan fiction? Analysis suggests that Lawver’s fan fiction does not subvert a reader’s emotional attachment to a copyrighted text; nor does the fan fiction necessarily alter the intent, mode, trope, or affect of the original copyrighted franchise’s literature or movie (e.g., the Harry Potter movies). The same cannot necessarily be said of satire. Neely’s low-quality, low-art, pseudo-satire fan fiction challenges the copyrighted literature’s intent and purpose, and Neely’s (or any) satire challenges an audience member’s emotional attachment to the characters and to the Potter imaginative enterprise. Neely’s Wizard People, Dear Reader potentially subverts the original artistic and market-driven purposes of the copyrighted literature or movie, and fan fiction like Wizard People, Dear Reader, with such purposeful distance from the original text, threatens franchise loyalty and potential future consumption of goods related to the original copyrighted text. Based upon the case outcomes of Neely and Lawver, corporate copyright holders may be more apt to take legal action against cases like Neely’s, but not Lawver’s.

As I’ll detail, highly visible 2.0 fan communities have power, and corporations soften prosecution of large fan communities to avoid angering large consumer groups. However, corporations may still selectively prosecute fan communities that subvert rhetorical purpose or that do not have significant numbers or voice in the public sphere to turn their potential consumer capital into political capital. Thus, while web 2.0 offers power to amass through participation, this 2.0-based agency is contingent upon the economic and legal forces of corporations, ownership, and traditional copyrights. What is at stake, of course, is a change in the conceptualization and methods of fair use, creativity, and their relationship to ownership of digital productions, both professional and fan-based. The status of fan literature, particularly satire, as a form of political traffic in the public sphere is threatened because its existence as a political statement is shaped by the commercial sphere as much as the public sphere, of which the line between the two is increasingly blurred.

This article will contrast Lawver’s and Neely’s cases through a lens of neoliberal economic policy and copyright models in the public sphere. I will suggest that a change in copyright prosecution—when and what groups corporations prosecute—forces reconsideration of how counterpublics are defined and function. Craig Warner suggests that counterpublics are based upon attention and circulation to a text and are formed through mutual interest. However, Robert Asen has recently argued that Warner’s definition of a counterpublic doesn’t allow for a critical or dialogic component to counterpublic theory. In the latter view, political critical-ness and public dialogism are two criteria to evaluate the current health of 2.0 fan fiction in the public sphere, and this article closes by addressing the Warner-Asen debate through the concepts of neoliberalism and copyright. I argue that counterpublics’ consumer-oriented power as producers and consumers of copyrighted literature in the 2.0 market place diminishes the critical theoretical value of their literature and fan community’s activities. In short, the commercial framework of their borrowed literary productions has strong influence over the potential political-ness of these same literary productions.

A History of the Public Sphere

Before addressing the current debate between traditional copyright and creative commons sharing, especially as it pertains to the public sphere in the early 21st century, I’d like to position the history of the public sphere for the purposes of my argument. Jurgen Habermas’ The Structural Transformation of the Public Sphere details the development of a “public sphere” in the seventeenth and eighteenth centuries through the rise of salons, coffeehouses, social organizations, periodicals, and other cultural developments that came to form a conceptual space unidentifiable with traditional governmental and cultural institutions. This change created a new space between the spheres of the private and the state. According to Habermas, the development of the public sphere created a

sphere of private people coming together as a public; they soon claimed the public sphere regulated from above against the public authorities themselves, to engage them in a debate over the general rules governing relations in the basically privatized but publicly relevant sphere of commodity exchange and social labor. (27)

Before the rise of the public sphere, private citizens were only offered representative publicness through local noblemen. “The prince and the estates were not the empowered agents of the people […]. Rather, the prince and the estates were the living embodiment of the country” (M. Rose 69).  By theorizing the rise of a public sphere, Habermas attempts to formulate a new space in which private bourgeois citizens can negotiate the definitions, values, and parameters of a common or “public” good in a free, unconstrained manner that is without threat of retaliation from traditional seats of power.

Reflecting upon original forms of cultural and political capital, Craig Calhoun argues that two processes

helped to institutionalize the public sphere as it developed out of court society and urban corporations in the early modern era. First, the family was reconstituted as an intimate sphere that grounded both the evaluative affirmation of ordinary life and of economic activity […].  Second, the public sphere was initially constituted in the world of letters, which paved the way for that oriented to politics. The two processes were intertwined. (10)

Yet the rise of the public sphere was never based solely in cultural or political capital.  Economic interests were also a contributing factor; indeed, they were and are the basis for recognizing differences between competing discourse communities’ cultural and political capital. As Christian Weisser asserts, “The concept [of the public sphere] is derived from a concrete historical situation: capitalism” (66), which has links to the rise of mercantilism. By the mid-seventeenth century, 

le public comprised members of the newly formed upper-middle class, members who had not necessarily been born to wealth and affluence but who had very often risen in status and wealth through capitalistic ventures [that allowed them to] promote interactions with the aristocracy” (Weisser 62)

While capitalism and mercantilism may be the original instigators of the public sphere, the world of letters did help contribute to ongoing shifts in the public sphere during the eighteenth century. The novel—a literary form coeval with the rise of the public sphere—is one particular literary form dedicated to the public sphere’s concept of the “private,” which came to represent not only the experiences of the home, family, and friends, but the cultural, political, and economic values and experience of bourgeois society. The eighteenth and nineteenth century novel is a genre groomed to document and detail the existence of the new bourgeois life both psychologically and socially. The novel is also a prime location to examine this developing class’s struggles with external, non-bourgeois institutions and values. As Glenn Heddler argues, “The experience of sympathetic identification characteristic of the sentimental novel, an act that often took place in the intimate realm of the nuclear family, functioned as a psychological preparation for readers’ participation in not only the reading public, but also the political public” (22). The genre of the novel, along with other art of this long period, incubated in the public sphere, and art, like public life, was no longer dependent on the former powers of church or state for either its patrons or its subject matter.

The Hollowing Out of the Public Sphere

Over the eighteenth and early nineteenth centuries, a growing middle class expanded the legitimacy and routinized the concept of the public sphere as a mediator for private and public rights. However, Richard Sennett argues that by the late-nineteenth century, the public had moved toward a more passive spectatorship that emphasized “personalities” (196) of aspiring politicians over rigorous, participatory debate amongst the bourgeois population.

Habermas suggests a “hollowing out” of the public sphere coeval to Sennett’s during the late nineteenth centuries for two reasons separate from Sennett. First, the state took greater control of social welfare. This blurred the lines between the public and state spheres. Second, private ownership of the press increased, which lessened vigorous dialogic, bipartisan debate as newspapers became the mouthpieces for political sloganeering and commercial profit.

Despite the “hollowing out” of the public sphere, the historical processes of letters, politics, and participation remain ongoing informants of the public sphere today. Challenges to Habermas’ formulation of the public sphere have arisen. Some reformulations are based upon his perceived exclusions of social groups from the public sphere (Frazer, Felski, Warner). Others are based upon Habermas’ conception of the public sphere as class-based, instead of issue- and rhetoric-based (Hauser). Still, the public sphere remains a lynchpin in discussing the access and the possibility of democracy between the institutions of home life and governance.

In Blogging America: The New Public Sphere, Aaron Barlow preserves Habermas’ basic conceptual relationships of the web 2.0 public sphere to the state and private spheres. Barlow explains that the “public sphere exists within a tension between what might be called ‘private’ or ‘familial’ or ‘personal’ authority […]—once the private has gained a certain parity with the public. It covers matters of politics, the arts, and commerce” (2). Barlow, amongst other theorists of the 2.0 public sphere, notes that the public sphere remains unprotected by any legal or governmental institutions. Barlow reports that the public sphere is protected “only by the will of the public” in arenas “that might fall under the rubric ‘culture’” and notes that this location “is where, today, the blogs reside” (2).

Barlow’s subject matter, blogging as a public sphere activity, is an activity Barlow views as representative of web 2.0’s ability to democratize and reinvigorate the public sphere through massive online participation. These activities enhance the public sphere’s dialogic discourses because blogging itself is a dialogic form similar to the original sites of the public sphere such as the literary salon, coffeehouse, newspaper, pamphlet, or periodical. Because of these participatory and dialogic online communications, web 2.0 has often been viewed as the reinvigoration of the public sphere, a reversal of the “hollowing out” due to spectatorship and corporate conglomeration of media that has plagued the public sphere since the late nineteenth century; simultaneously, web 2.0 has also been viewed as a “free zone” or utopia where corporate or institutional agendas cannot intrude upon democratic dialogue and principles. However, as Dietel-McLaughlin points out, corporations and institutions are interested in limiting the discursivity the 2.0 public sphere offers. Paul Booth shifts his observations from 2.0 blogging to 2.0 fan fiction. He argues that “fan fiction is itself a way of ‘playing’ at professional writing, or playfully subverting the copyright of a commercial product for noncommercial fun” (70). While this is true, Booth focuses on the act of play and doesn’t treat fan fiction as overtly political. To his credit, Booth does acknowledge the ability of fan fiction to create the social reversal inherent in the Bakhtinian carnivalesque. However, many modes of fan fiction exist, and literary modes each have a unique political history. Thus, we must consider how non-satire and satire are received differently in the increasingly neoliberal public sphere. Rebecca Tushnet has commented on humankind’s ongoing need, but limited ability due to copyright, to tell stories in our modern era, “Because of social and economic changes during the past few hundred years, however, most readily available and widely known characters are now corporate creatures” (“Legal Fictions” 652). With corporate ownership a norm, the potential effects of corporate ownership and copyright on the carnivalesque and political-ness of texts and storytelling deserve a reassessment.

In the following sections, I shall detail the rise of copyright in the public sphere to suggest that fan fiction made possible by web 2.0 is influenced by neoliberal economic policy and that corporate copyright holders may be withholding their prosecution of web 2.0 fan fiction writers not because of democratic or open source ideals, but to cultivate franchise loyalty in potential high consumption 2.0 fan communities. This commercial economic criterion limits the discursivity of fan literature in 2.0 environments, whether the writers continue writing or are effectively stopped by legal threats or action. Both the cases of Lawver and Neely are cases in which the circulation of a text and the agency of a community was altered due to corporate practice and its concomitant economic and legal power, with Neely’s situation representing a potential change in how copyright is exercised as well as a change to satire’s status as protected political free speech.

The Public Sphere: Literature, Copyright, and Economics

The rise of the printing press and the earliest distribution of political press coincides roughly with the rise of mercantilism and the public sphere. Thus, the concept of the “public good” coincides with copyright usage. Theron Howard reports on the sustained practices of copyright over its history, saying that

class="blockquote">[a]lthough Mary Tudor, Parliament, and the U.S. Congress probably had very different views of the desirability of censorship and book burning, the same principle of privilege that Mary established in the Stationers’ charter [1556] can be found in Parliament’s 1709 passage of the Statute of Anne, the status which in turn provided the basis for article I, Section 8 of the Constitution. (255)

Both the public sphere and copyright are birthed from the working and middle class’s abilities to avoid censorship through slowly developed legal protections based upon the growing power of the public sphere. Avoiding censorship further promulgated the legal, political, and economic capital of the growing middle class in the public sphere. As Mark Rose opines, “The active development of the public sphere provided the context for the lack of [state-sponsored book] licensing” (82), which allowed the free spread of ideas in opposition to governmental power and regulation.  

However, by the eighteenth century a battle between the commercial and public spheres was underway. The “battle of the booksellers” pitted authors, publishers, and the reading public against each other in a match for both rights and money. “The eighteenth century debates thus exposed a tension between property and discourse—or more precisely, between commerce and discourse that had been implicit since at least the 1640s” (Rose 84).

By the mid-nineteenth century, a push coeval with the hollowing out of the public sphere, a push for international copyright protection, was under way. During this push, the long process ended with “the final version of the 1862 Act to guard against potential ‘misconduct’ on the part of the artistic community” (Deazley 311). Yet the push had a second, hidden interest. As Ronan Deazley has argued, “securing the economic concerns of the purchasers and publishers, is of some interest” (311). Karl-Nikoluas Peifer suggests that “[t]he publishing and entertainment industries have always used, and still use author-centric arguments to campaign for economic interests” (350). Rose frames the eighteenth century copyright battles, saying that “it was precisely the public domain that came under challenge” (85) as the rights to information, particularly literature, belonged to commerce, not authors.

Despite copyright being viewed as a form of protection for the public sphere, the legal development of copyright clearly introduced competition between individual expression and the public sphere’s use, where previously little had existed. Although this historical period of copyright creates rights for the author expecting remuneration, the winners were commerce, not authors (Peifer 350). Peifer suggests that the idea of author-based rights is best represented by the concept of plagiarism, which is “not necessarily an economically relevant offence” because copyright infringement best represents not authorial, but commercial rights (355). The entrance of this new legal concept, copyright, into the public sphere potentially reversed the dynamics of the public sphere. Political and cultural capital could now be translated into economic capital not for the author, but for commercial and, eventually, corporate interests. Copyright, much like the private ownership and conglomeration of news media ownership, is informed by economics. Even in its inception, copyright offered the potential to hollow out for commercial reasons the public sphere.

Neoliberalism: A New Economic Order Enters the Public Sphere

To best reconcile changes to the concepts of literary originality and authorship in the twenty and twenty-first centuries with copyright in the nineteenth-century public sphere, one must first reconcile the history of the public sphere with the influence of late-twentieth century neoliberal economic policy.

While the concept of neoliberalism has its roots in mercantilism and the industrial revolution, David Harvey’s A Brief History of Neoliberalism points to 1978-80 as the beginning years in which the global order, including the U.S., moved economically toward market-based, neoliberal economic policies that favor deregulation and private ownership over public ownership or management (1). Yet economic change also foments changes in social and political capital, and economists note the concomitant change in U.S. and Western social policy because free market policy eroded the state’s funding of public services (Harvey 3; Dumenil and Levy 44-50) and moved Western democracies and their citizens closer to a rhetoric and economic rationale of privatization (Klein 389, 397-99; Giroux 17; Chang 77-78).

One of the hallmarks of neoliberal policy is the creation of new consumer markets to forward the business of not only commerce, but the state, whose social, political, and economic policies have become inseparable in a neoliberal state (Harvey 37; McLaren 23). In neoliberal economies, political and social markets are dependent upon success in economic markets (Harvey 2) and increased consumer identification and consumption (Giroux 35). This confluence of economic and cultural markets promotes a state-conceptualized social and political justice, which alters the relationship between the traditional post-Enlightenment public and state spheres.

As a response to the growth of late twentieth century consumerism, James Berlin constructed a writing pedagogy for college students around responsible consumerism, asking students to investigate the relationship of social and economic power (116-19). Henry Giroux questions directly the neoliberal strategies informing state management and curriculum in K-12 schooling, which he argues distributes differing educational environments based upon populations of students that will or will not be good consumers (23). Carl Boggs echoes Giroux, suggesting that in the twenty-first century,

capital and class relations come to so thoroughly reshape every dimension of human activity, where the commodity penetrates into the deepest workings of the individual psyche that even education is co-opted by corporate and commodity desires. (xi)

The introduction of neoliberalism into late-twentieth century social policy favors market creation, scarcity, and citizens whose primary purpose and identify is registered through consumption. As Michael Hardt and Antonio Negri point out, 2.0’s ideal of shared knowledge and information is challenged not only by neoliberalism, but by the conception of the public sphere. The pair suggest that “[i]n the legal realm, especially in the Anglo-American tradition, the concept of the common has long been hidden by the notions of public and private” (202).  Hardt and Negri suggest that a public sphere not receptive to neoliberal intrusion would require “an alternative legal strategy and framework: a conception of privacy that expresses the singularity of social subjectivities (not private property) and a conception of the public based on the common (not state control) […]” (204). Thus, the current conception of the public sphere, or its very real practice in twenty-first century democracies, guarantees neoliberal, consumer-based identity because current conceptions of the state--the guarantor or private rights and identity--is complicit in the reproduction of market creation. Citizens’ social and political capital in addition to their agency are dependent upon their ability to demonstrate their consumer potential. In the world of sovereign neoliberalism, social and cultural communities function primarily as available demographic markets.

To what degree economic and legal power has reach into discourse communities and agency is always open to critique. Scholarship in the humanities could be seen as constructing critique through our abiding scholarly interest in agency, as well as our belief in agency, during the late 20th and early 21st century. However, our abiding interest in agency has decreased our attention and analysis on how sovereign forces such as neoliberalism can hamper agency or reformulate it. As John Schilb argues, many disciplines study sovereignty, but “we scholars of rhetoric and composition can’t put ourselves on this list. We don’t seem to be writing much at all about sovereignty” (web). Schilb argues that rhetoric’s Foucaultian turn has framed power as “a tacit and widespread ensemble of forces” that has made agency “our field’s current mantra” (web). Schilb asks if “whether we take Foucault’s notion of power too much for granted. […] Explorations of sovereign power would provide us with more of an impetus to write about government-sponsored political rhetoric than all our conniptions about agency” (web). With this spirit in mind, I’d like to turn my attention to fans’ use of copyrighted material, the intrusions of sovereign economic and legal force, and the limits of or reformulations of agency.

Literary Copyright Before 2.0: Defining Literary Piracy

Literature has always presented unique challenges to the identification of a text’s copyrighted, unborrowable characteristics. In Adaptation and Appropriation, Julie Sanders outlines the case of contemporary British novelist Graham Swift’s novel Last Orders, which upon winning the prestigious Booker Prize in 1996, found Swift accused of copying William Faulkner’s As I Lay Dying. As Pamela Cooper reports, John Flow of the University in Queensland publically proclaimed the existence of “some very close similarities in structure and subject-matter, including a monologue given to the dead person, a monologue consisting of numbered points, and a monologue made up of a single sentence” (Cooper qtd in Sanders 33). While Swift acknowledges his art’s debt to Faulkner, Swift and the award committee saw only literary influence or similarity where others such as John Flow saw unethical borrowing.

Sanders suggests that the twentieth century, based in a pre-2.0 commons philosophy, utilizes a model of literary influence quite different than pre-copyright eras. Sanders argues, for example, that Shakespeare’s “examinations of sources or creative borrowings” (34), or “sustained appropriations” (32) of myth, legend, history, plot, characters, and other literary concepts from both past writers and his contemporaries did in no way find him accused of plagiarism or unacceptable literary borrowing. Comparatively, the twentieth century has increased the idea of originality in literature. Expert literary critics familiar with both Shakespeare, Faulkner, and Graham Swift ignore Shakespeare’s borrowing, but may find Graham Swift’s immoral and potentially unlawful to some degree.

Thus, the twentieth century operates upon the idea of individual authorship and ownership. Sanders suggests that in pre-capitalist societies, the conceptual distances between expression, originality, and borrowing was much smaller than in today’s capitalist society (34, 47-48). This enhanced post-capitalist idea of authorial originality is based upon the idea of textual and creative ownership of one’s artistic productions, and it coincides with the public sphere’s legal development of copyright as defined through a “piracy model” wherein an author’s original ideas are pirated by infringers.

Since the inception of copyright and plagiarism, literary production has been based upon a piracy model. Tanya Alpin suggests that reuse of text in conjunction with a textual piracy model shapes legal questions. Alpert reports that

assuming large scale digital piracy of literary works becomes problematic, will the automated measurement models […] have a role to play? […] Should a copyright owner then decide to pursue infringement proceedings, the model/s may have a role to play in proving infringement. (268)

It is this very “piracy model” of copyright that is challenged by 2.0 fan fiction.  Michael Hardt and Antonio Negri attribute this piracy model to the concept of private property and material ownership. In discussing similar social or “commons” sharing in Napster, the pair argue that, due to Napster,

recorded music no longer functioned as private property in that it became common. This is an extension well beyond the traditional conceptions of theft or piracy in the sense that it is not merely the transfer of property from one owner to another but a violation of the private character of the property itself […]. (181)

Similar to Napster, copyrighted literature, using a private property and piracy model, is on a collision course with 2.0 open source fan fiction. According to Josh McHugh, Web 2.0-influenced corporations such as Yahoo and Google “have thus far taken a mostly nonproprietary stance toward their data” (McHugh qtd in Ballentine, web) and foregone the piracy model of knowledge ownership. Ballentine suggests that it is

the unregulated treatment of data that fuels both commercial and noncommercial innovation in this arena. […] Web 2.0 has ratcheted-up the sensitivity levels by enabling a larger group of users to engage with more data and test the limits of how and how much of that data is used. (web)

If 2.0 information is defined by its “unregulated” treatment—the ability to share and borrow at will without fear of repercussion, then we see a potential decrease in the idea of copyright and ownership of information. Theoretically, we also see a decrease of individuals or corporations desiring economic gain for expression, which is a return to a more open, pre-copyright law public sphere. Peifer argues that 2.0 open source material is a return to the origins of the pre-eighteenth century public sphere, saying

The recent history of copyright law arguably has been shaped by an Anglo-American understanding of copyright as property. [T]he ‘return to the commons’ has a credible source in the history of copyright itself […] as the heart of a copyright theory rooted in the Enlightenment. (347)

Such openness and lack of concern for copyright in the 2.0 era opposes the trend in twentieth century literary copyright, wherein the concepts of originality and ownership were on the increase (e.g., the example of Graham Swift and William Faulkner); instead, originality, ownership, and the “piracy model” of copyright are giving way to principles of borrowing, culmination, and communal ownership and usage.

However, I would argue that the piracy model can be inverted and used to enforce “proper” fan fiction. While I certainly agree with Tushnet that “noncommercial fan fiction deserves the protection of the law” (“Legal Fictions” 654), fan fiction’s circulation and political status is threated by corporate power. Tushnet points out that “fans are at the mercy of corporations and internet service providers that fear copyright infringement lawsuits” (653). Lawrence Lessig similarly suggests that “you either pay a lawyer to defend your fair use rights or pay a lawyer to track down permissions so you don’t have to rely upon fair use rights. Either way, the creative process is a process of paying lawyers” (107).

The application of the piracy model equates to a corporation’s rights to their property. To secure franchise loyalty, corporations will police for properly pirated fan fiction that suits their franchise and marketing needs, and they may prosecute only pirated fan fiction that distorts the copyrighted text and threatens franchise loyalty. In this process, we see that 2.0 fan communities’ creativity becomes not acts of production, but potentially a node on a continuum of consumer acts. As Robert Wilkie argues in The Digital Condition, “Because knowledge is represented as an inexhaustible resource that cannot be owned in the traditional sense of private property, it is posited that what defines an individual’s social status is not production but consumption” (129). Wilkie comments directly on how lessened ideas of originality in creative productions in 2.0 may move us into a consumer orientation, which can then be exploited by public sphere neoliberal influences edging us toward franchise loyalty. As Zizi Papacharissi argues “the dominant economic system of capitalism prioritized the commodification of information. […] Convergent technologies, regardless of how democratizing, social, or innovative they may be, are rooted in the logic of commodification” (55). This commodification places fan texts as political, legal, commercial and public objects circulating in the public sphere.

In the case of Lawver and her teen fan community’s production of non-satirical fan texts, their creative products continue to exist and evolve endlessly in cyberspace; however, the creative process of extending the Harry Potter saga through fan fiction potentially becomes another form of “consuming” the Potter brand—one time through writing a fan text and perhaps another time through outright purchase of Potter goods. This fan community’s creativity remains in cyberspace ultimately not by the community’s will, but by Warner Brothers’ will and their leniency toward certain piracies that benefit their commerce. Warner Brothers allows the fan community to produce, but uses the fan fiction to keep interest in the Potter saga high. In this way, the fan community can be viewed as tantamount to free, affective labor and new product for Warner Brothers’ PR machine and Potter franchise, which is made possible by Warner Brothers’ non-prosecutorial stance toward the fan community. Such free and affective labor is the basis of neoliberal philosophy, particularly that of Negri and Hardt, as presented earlier.

2.0 and Neoliberalism: Two Views of Information in the Public Sphere

I opened this article by framing the intrusion of the commerce and business spheres into the web 2.0 public sphere, which is typically conceived of as a sharing, commons sphere. Aaron Barlow reports the very recent uptick in commerce’s interest in 2.0 technologies, noting that before a watershed 2005 Business Weekly article, “there seemed little to be gained for a business in the blogosphere. But individual entrepreneuers were quick to catch on that something unusual was happening, and the corporate world was not far behind” (29). Thus, early 2.0 had little traditional corporate intrusion into the public sphere. But the close of the first decade of the twenty-first century saw a return to the traditional intrusion of commerce in the public sphere.

Henry Jenkins adequately captures this slippery slope between participation and commerce when suggesting that 2.0 is defined by convergence culture and participatory culture, wherein “[c]onsumers are learning how to use these different media technologies […] and are fighting for the right to participate more fully in their culture” (18). However, Jenkins suggests that

[t]he American media environment is now being shaped by two seemingly contradictory trends: […] new media technologies have lowered production and distribution costs, […] and enabled consumers to archive, annotate, appropriate, and recirculate media content in powerful new ways. At the same time, there has been an alarming concentration of the ownership of mainstream commercial media, with a small handful of multinational media conglomerates dominating all sectors of the entertainment industry. […] These newly empowered consumers in contradictory ways, sometimes encouraging change, sometimes resisting what they see as renegade behavior. (18-19)

Jenkins identifies the locations where industries capitalize upon 2.0 networking and information sharing to build consumer markets. He lists the following:

“extension” [which is industries’] efforts to expand the potential markets by moving content across different delivery systems, “synergy” [which refers] to the economic opportunities represented by their ability to own and control all of those manifestations, and “franchise” [which refers] to their coordinated effort to brand and market fictional content under these new conditions. (19)

Jenkins notes that these market-driven efforts to control 2.0 entertainment for economic gain splice together the media of books, movies, television, and computer games; these strategies are being used to monopolize some of the biggest entertainment franchises in the U.S., such as American Idol, Star Wars, The Matrix, the Harry Potter films, and similar pop culture phenomena (19). Yet it is not only these products and their multimedia distribution that are monopolized. Corporations seek to build long-term affect, and corporations seek “to blur the line between entertainment content and brand messages. According to affective economics, the ideal consumer is active, emotionally engaged, and socially networked” (20).   

This attempt of the entertainment industry to commodify the activities and emotions of people is referred to by Hardt and Negri as biopolitics “a geneaology of resistances and struggles [that] presuppose the political nature of social life” (78). Neoliberalism’s interest in the biopolitical is based upon immaterial labor. Hardt and Negri divide immaterial labor into two forms.

The first form refers to labor that is primarily intellectual or linguistic, such as problem solving, symbolic and analytical tasks, and linguistic expressions. […] We call the other principle form of immaterial labor “affective labor.” Unlike emotions, which are mental phenomena, affects refer equally to body and mind.  […] Affective labor, then, is labor that produces or manipulates affects such as feeling at ease, well-being, satisfaction, excitement, or passion. […]; the media must create affects and forms of life. (108)

Whether through neoliberal history or the market’s production of consumer affect, the production and commodification of affect is operative in 2.0 communities, and Jenkins’ identification of franchise loyalty in fan communities presents indications of how and in what forms commerce allows fan communities to continue their reading and writing.

This latest intrusion of franchising into the public sphere is, however, adumbrated; copyright has been a tool of commerce since at least the eighteenth century, if not earlier. But we must keep in mind that the public sphere is always newly textured by historical change, and the effects of corporate interest and changing economic systems, such as the turn toward neoliberalism, alter the public sphere. As Lessig argues, copyright history has three basic historical stages of protection: first, the protection of the throne, then the protection of the public from publishers cornering the information market, and now the protection of “entertainment corporations” (120). The matrix of identity, affect, and politics-realized-as-consumption in matters of entertainment becomes a primary site of critical inquiry as 2.0 fan fiction writers find themselves potentially prosecuted (or not) depending upon how well they’ve pirated the original text for the potential franchise loyalty of the fan community, not necessarily for expressive, creative, or political reasons (i.e. Neely’s loss of political free speech through satire) available to them as individuals, or even communities, should a small community threaten the loyalty or integrity of larger fan communities’ brand loyalty. The ability to continue or not continue production and circulation of fan literature in the 2.0 public sphere illustrates that discursive space in the public sphere can easily be limited or shifted by commerce.

A Tale of Two Fan Communities: Franchise Loyalty, Corporate Reversals, and Public Writing

One location where the merging of 2.0 open source or “commons” approaches to borrowing information clashes with Henry Jenkins’ emerging and merged concepts of “extension,” “synergy” and “franchise” is in Jenkins’ retelling of 14-year-old Heather Lawver’s story in Convergence Culture. Lawver’s story has been recorded in a variety of scholarly books (Green 2010; Lessig 2009; Whited 2004; Jenkins 2006). I will reframe Jenkins’ analysis of Lawver’s case in particular to demonstrate a lack of prosecution of non-satirical, copyrighted fictional material in comparison to Neely’s Wizard People, Dear Reader.

The home-schooled Lawver began The Daily Prophet to build an online replacement for a school newspaper. Her enterprise grew over time to have 102 adolescent writers from around the world. As the site grew, Lawver took on the role of managing editor, “hiring columnists who covered their own ‘beats’ on a weekly basis—everything from the latest quiddich matches to muggle cuisine” (Jenkins 178). Lawver made no money from the webpage, although she did accept donations from her contributors to cover the expenses of The Daily Prophet’s maintenance.

Although Potter author J.K. Rowling supported early fan fiction, movie studio Warner Brothers “felt it had a legal obligation to police sites that emerged around their properties” (Jenkins 194). Warner Brothers retained this stance, viewing copyright through a piracy model (Jenkins 189) identical to traditional twentieth century copyright models discussed earlier. As Warner Brothers began to issue citations to cease operations against sites, Lawver used her larger, global fanzine to protect smaller fan fiction websites. Not only did then 16-year-old Lawver debate Warner Brothers representatives, she formed Defense of the Dark Arts, whose purpose was to help mount legal defenses against Warner Brothers and produced a petition of 1500 signatures over just several weeks time. According to Lawver, 

Warner was very clever about who they attacked … They attacked a whole bunch of kids in Poland. […] They went after the twelve- and fifteen-year-olds with the rinky-dink sites. They underestimated how interconnected our fandom was. They underestimated the fact that we knew those kids in Poland and we knew the rinky dink sites and we cared about them. (as qtd by Jenkins 195)

Lawver successfully negotiated the continuance of her site. Warner Brothers representatives labeled their initial copyright-based response “naïve.” Jenkins’ interview with Diane Nelson, the Vice President for Global Brand Management found Nelson claiming “We didn’t know what we had on our hand early in with Harry Potter. We did what we would normally do in the protection of our intellectual property” (Jenkins 196). However, Lana A. Whited records Warner Brothers’ stoppage of the prosecution of Potter fan fiction websites at this time. Although “Warner Brothers announced that it would take no further action against […] anyone who had received a letter […], Warner Brothers did not expediently clarify this position to all the young webmasters they had previously targeted and one young man who had permanently lost his domain name” (11). Warner Brothers relinquishing of the pirate model of copyright can easily be viewed as a victory for 2.0 “commons” ideas of ownership and licensing. However, Warner Brothers lack of clarification in their response suggests that potential boycotts and damage to their Potter franchise are equally responsible for a change in their prosecutorial mindset. Both the public and scholarship should be wary of easy explanation crediting fan agency as a reason for the victory.

In Rhetoric Online, Barbara Warnick concludes that a variety of case studies similar to Lawvery’s suggest that

when the object of protest is a major corporation, the threat of extensive, negative coverage can effectively cause the corporate entity to modify its behavior. Also, when a community of supporters already exists online, they can be mobilized quickly to apply public pressure in an issue controversy. (16)

However, the victory of fan communities over copyright is not of certain terms. As argued earlier, copyright battles are costly and not possible for most artists and fan communities. While agency can be found through fan networking, boycotts, and similar political actions, the high cost of arguing for or asking for fair use limits fans’ agency. While corporations may be happy to oblige fan texts that aid the copyrighted franchises, copyright holders also reserve the right to prosecute undesirable forms of their copyrighted material such as satire.

Clearly, Warner Brothers ultimately retains the right to prosecute or allow “commons” borrowing of their material, as with their final decision to allow The Daily Prophet to pirate the Potter brand. This sovereignty to prosecute or not prosecute parallels neoliberal philosophy, in which culture and communities become potential markets. This sovereignty also changes the ability to have a predictable regulating of fan-based text creation and free speech. One such case of prosecution for piracy in which creativity and satire-as-free-speech are regulated through copyright law is the case of satire artist Brad Neely.

Neely’s 2004 Wizard People, Dear Reader is an audio soundtrack that syncs to the original Potter movie. While it is hard to know exactly what is threatening about Neely’s Wizard People, Dear Reader, I suggest it is the satirical quality and change in rhetorical purpose and audience from the original Potter texts. Neely’s alternative narrative is read in readily definable gamer or sci-fi “geek” voice, which may itself be a form of ridicule of the typical “geek” fan of a fan community. The major Potter child characters, recast through Neely’s novel dialogue, are sometimes sarcastic or simply cruel to each other. They comment negatively on each other’s class origins or physical appearance. The characters are renamed absurd names that may change slightly from scene to scene, as if Neely didn’t care to construct a linear or unified text. The audio is of purposeful low quality: Neely’s reading contains mistakes, awkward pauses, and audible paper rustling as he turns the pages of his script. Main character Harry Potter is a machismo-laden version of the copyrighted character who often refers to himself as “Harry Fuckin’ Potter.” The retelling takes the original film into “darkly comic, pop-culture-savvy territory” (Werde, web). Neely, who has gained fame for other online satire such as George Washington and The Professor Brothers, clearly intends Wizard People, Dear Reader for an adult artsy, postmodern ironic audience; in fact, Wizard People, Dear Reader received a standing ovation at the 2004 New York Underground Festival. After this 2004 movement into underground notoriety, Wizard People grew in underground prominence, and viewings of the film with Neely’s alternative soundtrack, or with Neely himself reading live while the film played, were booked in a small number of venues across the country.

However, Warner Brothers quickly shut down Neely’s live and prerecorded performances. Warner Brothers did so not by contacting Neely, but by contacting the scheduled performance venues and threatening to stop the lending of Warner Brothers films (J. Rose, web). We see in Warner Brothers intolerance for Wizard People an adherence to the older pirate model, not the commons model, of information. Lawver’s fan community experienced only temporary legal blockades, but can now freely pirate the Potter texts because of the community’s rhetorical purposes that are congruent with market-based purpose and product. However, Warner Brothers’ clearly utilized the piracy model to silence Neely, whose fan fiction subverts the young adult literature and young adult audience, or at best satirizes the very community in which it participates, therein threatening brand franchising and consumer identification of those who do not get the joke. All of this is to say, of course, that the power of Warner Brothers’ to choose when to apply the piracy model of copyright suggests that neoliberal values are, at least in cases of fan fiction, sovereign over 2.0 commons conceptions of information because of their ability to choose when to use their massive financial resources to employ copyright’s legal sovereignty over fan texts.

Neoliberalism: Fan Fiction and Changes in Satire’s Political Status

Before franchise loyalty and neoliberalism’s marriage of the public and the private in both definitions of the private (non-public home life and economic privatization), prosecution through the piracy model was typically applied to non-satirical versions of literature or fan literature. The twentieth century’s cultural adoption of these values can be seen in Graham Swift’s suggested borrowing from Faulkner. However, Warner Brothers’ stoppage of Neely’s satirical fan fiction, but allowance of Lawver’s non-satirical fan fiction, demonstrates that Warner Brothers is reversing one long-standing aspect of the older piracy model of copyright. Satire has been, throughout the piracy model’s history, protected as a critical and political statement, which qualifies a satirical text not as a pirated text, but as a new text of original statement. A National Public Radio report touched on this when defining Neely’s legal options. NPR reported that “to use the film without permission, Neely could argue that his version constitutes a distinct work of art. But he would have to prove that argument in court […]” (J. Rose, web).

Were Neely’s case to go to court, he would wage a major legal battle predicated upon fair use, wherein economic interests of corporations would become protected not by copyright, but by corporations creating insurmountable legal costs in the borrower’s attempt to argue fair use (Tushnet 653; Lessig Free Culture 107). Furthermore, corporations are also protected through claims of moral commonplaces related to taste and aesthetics. In Media, Technology, and Copyright: Integrating Law and Economics, Michael Einhorn defines in theory not only Neely’s Wizard People, Dear Reader, but Warner Brothers’ reaction to rhetorical and aesthetic borrowings that threaten economic commodities. Einhorn states that

Parody or satire, copyright owners can be expected to strongly resist licensing secondary uses involving sexual or lowbrow comedy, political content, artistic style, musical idiom or cultural/historical criticism that they find tasteless, disrespectful, inartistic or impolitic. They may invoke some expanded idea of moral rights beyond the limited rights of attribution and integrity that the copyright statute now extends. (29)

We see commerce’s economic interests surface as a moral argument based upon taste and high culture. It is also worth noting that concepts such as taste, art, and politics are dependent upon a text’s purpose. Satire produces different affect for different communities and their tastes. In neoliberal terms, particular affect toward a literature franchise such as the Potter series is a biopolitical, economic commodity worth protecting, just as satire and its affective resonance is worth protecting as political free speech in other communities.

Satirized copyrighted works are evaluated by two basic categories: infringement and dilution. When comparing Lawver and Neely, Lawver can easily be seen as a case of infringement: Lawver’s The Daily Prophet is not “tasteless, disrespectful, inartistic or impolitic” (Einhorn 29). Thus, Lawver infringes where Neely dilutes to satire through a perhaps disrespectful and inartful, but political, reinscription. As the American Bar Association’s Intellectual Property Litigation Committee ascertains of past legal frameworks for prosecuting satire, “unlike trademark infringement, trademark dilution occurs when consumers are not confused about the source or sponsorship of the product” (Marshall and Siciliano 13). Based upon the New York Times report of Neely’s public viewings or web chatter, no one is attributing Wizard People, Dear Reader to Warner Brothers or the original Potter series. Michael Einhorn suggests

If published, such works would widen consumer choice, contribute to political awareness, and heighten cultural sensibility. Moreover transformative works with new meanings tend to reach largely new audiences, and do not predictably displace sales of primary goods or interfere with later undertakings of derivative licenses. (29)

Einhorn waylays, theoretically, commerce’s market-driven fears. However, as the case of Neely suggests, Warner Brothers fears are real. They are interested in protecting franchise integrity. They apply the piracy model with Neely, but invert the model by allowing Lawver to pirate due to piracy’s potential to extend franchise loyalty with particular fan communities.

This corporate and legal attitude toward satire has been noted elsewhere by Lawrence Lessig. In Remix, Lessig tells the story of a mash up fan video in which Tony Blair and George Bush lip sync to each other Lionel Richie’s “Endless Love.” Lessig argues, “The message couldn’t be more powerful: an emasculated Britain, as captured in the puppy love of its leader for Bush” (74). In his Google talk on copyright that features this video, Lessig adds a fact not in Remix: Lionel Richie’s lawyers requested the video be taken down. When the video was defended for its political message, Richie’s lawyers’ gave a response underscoring the battle over copyright and satire. The lawyers’ response to the Blair-Bush video commented directly on the satirical mode in the public sphere, claiming “It’s not funny” (Lessig, “Google”).

With the potential of silencing of satirical in fan texts, this sovereignty of the piracy model, whether applied or not, is a direct assault on public space. Papacharissi argues that a “privatization of public space and a retreat to home space which is not commodified […] can serve as a non-commercial space” (37). Fan fiction, satirical or not, can serve as this non-commercial space in practice, but the potential of copyright and sovereign neoliberal principles suggest this space is created to be controlled by market forces, not creativity or fan fiction as an act of free speech protected by law. To stop, control, or alter circulation through assertion of copyright is to shape through commercial values the public sphere. Papacharissi comments on the efficacy of satire as a political act on the web, saying

Where blogging provides the pulpit, YouTube provides irreverence, humor, and unpredictability necessary for rejuvenating political conversation trapped in conventional formulas. The prominence of satirical content reveals a playful mood that results in a creative and nonsensical pastiche of content that is befitting of post-modern political tastes and orientations. YouTube content completes the media and news sphere that the monitorial citizen scans while surveying the political environment, by adding various and diverse takes on political reality. (151)

Papacharissi’s claims are based in the history of satire as a legally protected act of freedom of speech. However, the satire mentioned above is based upon political figures, not copyrighted fictional figures. Thus, while the satirization of political figures could lead to accusations of slander, public figures are not copyrighted; thus, they do not operate upon the piracy model of copyright, and we see that satire of copyrighted fictional material is different than other online and fan-based satire. These two different locations for satire keep Neely and other satirists vulnerable through commercial application of copyright, while 2.0 communities satirizing political figures are protected by a different set of free speech tenets.

Are Fan Communities Victims or Heroes?

The effect of neoliberal values on the function of writing in the 2.0 sphere is of great importance to public sphere theory and theories of marginalized counterpublics. What does 2.0 offer the public sphere? Web 2.0 offers immediate construction and networking of fan communities and immediacy of communication and action, as seen through Lawver’s creation of Defense of the Dark Arts. Lawver’s ability to produce a large petition quickly and her ability to defend smaller sites in Poland suggest that fan communities aren’t completely victimized by neoliberalism. It also suggests that 2.0 does help to invigorate the public sphere. In Lawver’s case, this extends directly to curbing some selective applications of the piracy model. To this extent, Lawver’s non-satirical fan fiction can still be seen as fighting against neoliberal and corporate interests, and I do not wish to overlook the political-ness of Lawver and her fan community’s texts. Moreover, as in many contrastive situations, the media and materials Lawver and her community borrows and produces (the Potter book series, for instance) are different than those Neely borrows and produces (the Potter film). Thus, the application of the piracy model is dependent upon a number of variables, which also includes whether or not a text appears to be the work of a large community, as with Lawver, whether it can be framed as the production of a lone writer for readers, as with Neely, and who owns the copyright to which media. Also, the degree and form of satire would certainly make a difference in any potential corporate legal action. Thus, the application of copyright and its analysis relies upon a number of factors not easily controlled for comparison, and the silencing of satire I’ve highlighted thus far is not always a given, but is always a possibility in a commercialized public sphere where the relationship between market forces and free speech are fluid and responsive to power.

Reading the political-ness of fan fiction through this lens, we can conceive commerce as equal to, rather than sovereign to, the public sphere. James Paul Gee, Glynda Hull, and Colin Lankshear suggest that the concept of “New Capitalism” places knowledge at a premium, and both business and non-business communities “compete, rather, on the basis of how much learning and knowledge they can use as leverage in order to expeditiously invent, produce, distribute and market their goods and services, as well as to innovatively vary and customize them” (5). From this perspective, both Warner Brothers and The Daily Prophet partake in the market rituals of the new capitalism. However, even through the lens of new capitalism, the 2.0 world still includes traditional copyright practices that potentially inhibit literature as a political act. As Lessig argues, a past pattern of deference to technologies in copyright history “has now changed with the rise of the Internet. […] [B]oth the courts and Congress have imposed legal restrictions that will have the effect of smothering the new to benefit the old” (Free Culture 194). While Lessig’s concerns center around the spread of culture and creativity, my focus on satire adds literature as political speech to the list of new things potentially smothered to benefit corporate commercial interests in the 2.0 public sphere.

To return to the subject of the potential sovereignty of commerce, Papacharissi has argued that “[w]hile commodification does not preclude non-commercial uses of information technologies, it is also not inherently suggestive of them” (55). If both Lawver’s fan community and the smaller, defended fan sites are allowed to exist because of Warner Brothers’ interest in franchise loyalty, then all Harry Potter fan fiction can be commodified by the greater market interests of Warner Brothers and the capitalist enterprise in general. It is true that Lawver and her fan community can be considered a rogue counterpublic because of their textual piracy and creativity. However, Warner Brothers has well-documented economic reasons for its selective, case-by-case change from the traditional piracy model to a 2.0 commons model to absorb the fan community’s economic, political, and social capital into their own profit motives and affective economics—their desire to solidify brand loyalty. Thus, The Daily Prophet’s status as a counterpublic dissipates as its writing is absorbed into the market-driven structures of the public sphere, which limits its ability to assert its political agency as a counterpublic. This is not to say that the act of writing becomes non-expressive or is completely inscribed by consumption to a point where no creative production remains; it is to say that the ways in which fans can borrow, write, and circulate texts can be controlled by the massive, sovereign economic and legal power that copyright owners wield over texts many find important in their lives.

Critical Theory: Neoliberalism, Circulation, and Counterpublics

To conclude this article, I would like to suggest that my argument reformulates a current debate in the definition of counterpublics, which are competing publics in opposition to the hegemony or marginalizing forces of the public sphere. Thus, this final section returns to public sphere theory. I am not seeking to critique all areas of counterpublic theory. Rather, I suggest that market principles and selective copyright prosecution build upon and further define one particular definition of a counterpublic: Robert Asen’s (2009) and Asen and Daniel C. Brouwer’s (2010) definition of a critical counterpublic.

Over the recent history of public sphere theory, a number of challenges to its assumptions have arisen. Some challenges relate to the forms of participation, such as Geoff Eely’s argument that early notions of the public sphere were based on an early logic of “voluntary association” that diminished during the eighteenth century due to greater political events such as the Enlightenment and democratic revolutions (299). Other reformulations are based upon subaltern and critical theories. Nancy Frazer argues that the exclusion of women from the public sphere constitutes a significant oversight. She suggests that Habermas’ public sphere “conflates at least three analytically distinct things: the state, the official economy of paid employment, and arena of public discourse” (75). Furthermore, she critiques Habermas’ original class-based bourgeois public sphere. Concerning women, she states that “private idioms of domesticity and motherhood [were and are] springboards for public activity” (78). Rita Felsky has argued for a “plurality of public spheres” (155), as has Frazer, who uses the concept of counterpublics, which “contested the exclusionary norms” (79) by which bourgeois society marginalizes citizens. Craig Warner also talks of counterpublics, suggesting that “[n]o single history sufficiently explains all the different ways these preconditions come together in practice” (10).   

Of equal importance, Warner connects the modern public and counterpublic into economic and market influences. He posits that “the modern concept of a public seems to have floated free from its original context. Like the market or nation—two cultural forms with which it shares a great deal—it has entered the repertoire of almost every culture” (10). Yet Warner bases his idea of a counterpublic not on critical theory or discourse communities, but on attention to and circulation of texts. Robert Asen has previously argued Warner’s definition is based upon a non-critical foundation of a counterpublic (Asen 268-69).

Warner defines a public as the following: “Neither ‘crowd’ nor  ‘people’ nor ‘group’ will capture the same sense. The difference shows us that the idea of a public unlike a concrete audience or the public of a polity, is text-based” (67).  Additionally, Warner suggests that publics self-organize, and “[w]ithout faith, justified or not, in self-organized publics, […] we would be nothing but the peasants of capital—which, of course, we might be, and some of us more than others” (69). In the latter statement Warner’s inability to engage critically with economic influence upon publics or the organization of publics leaves him theoretically unable to engage in how economics may create or shape counterpublics. Additionally, a text-oriented theory of counterpublics leaves his theory of the public sphere unable to explain the operative effects of neoliberalism upon circulation and exigency of communities in the public sphere, such as Lawver’s or Neely’s. If commerce is able to stop circulation of texts for legal or affective reasons, the public sphere is altered; yet Warner cannot address commerce’s withholding of texts from a reading/writing public due to his text-oriented theory.

Robert Asen has critiqued Warner’s historical basis for counterpublics, surmising that Warner “has articulated a conception of a public that comes into being only in relation to texts and their circulation” (Asen 268). Furthermore, Asen claims that “Warner rejects dialogic models of the public sphere, charging that these approaches place too much weight on ‘argument’ and ‘polemic’” (268-69), and Asen and Brouwer insist that “Warner insists on a conceptual limit to circulation in his dismissal of dialogic models of public” (7). In this view, Warner’s theorization of the public sphere becomes a place where dialogue can be restricted without affecting the operative principles of the public sphere. Asen (2001), as well as Asen and Brouwer (2010), in their inclusion of operative principles, theorize a public sphere that can encompass and define the restriction of public dialogism through copyright and commerce’s sovereignty to apply copyright as it chooses, even if Asen and Brouwer do not explicitly address neoliberalism or the use of copyright law to stop the circulation of satire, as this article has.

Gerard Hauser has forwarded a rhetoric-based theory of the public sphere. Hauser, like Frazer, Eely, Felsky, and Warner, conceptualizes multiple public spheres. This conceptualization “relinquishes the class-based apparatus” (61) of Habermas’ bourgeois sphere. For Hauser, a public sphere is “a discursive space in which individuals and groups associate to discuss matters of mutual interest and, where possible, to reach a common judgment about them” (61). Hauser explains that “a rhetorical model’s critical norms are derived from actual discursive practices. This model replaces the norm of critical rationality with the rhetorical norm of reasonableness” (61). Literary fan communities, by way of their online, non-political nature, fall within the scope of being one public or counterpublic among many. Because these fans are not united through marginalization by traditional political identities such as race, gender, or class, fan fiction seems to clearly be of Hauser’s discursive rhetorical space. Indeed, Hauser includes the concerns of the “literary public sphere” (61) in his rhetoric-based discursive public spheres. However, if rhetoric-based public spheres exist, we must question how this discursive space is shaped by economic influence. In particular, we must ask how fan fiction’s discursive space in the public sphere is shaped by market-driven, neoliberal values that fuse economic, social, and political capital. To wit, we must ask how Warner Brothers’ application or non-application of the piracy model of copyright affects counterpublic status and agency in the larger public sphere.

Counterpublics and Discursive Space

As I argued earlier, Lawver’s fan community and The Daily Prophet exist and circulate their fan fiction only because of Warner Brothers indulgence, an indulgence granted because of franchise loyalty and potential economic benefit. Moreover, if the fan community’s writing and circulation exists as a public only because of and in the network of Potter franchising, then the writing functions as much as an act of consumption as an act of production. Thus, we see that a function of Lawver’s fan community being let alone is based upon the criteria of not being critical of sovereignty in the neoliberal public sphere, whereas Neely’s satire functions as a critique through its change of the Potter series rhetorical, entertainment-based, and affective purpose.

Lawver, her fan community, and all fan communities’ situatedness in the public (or counterpublic) sphere are dependent upon two factors: the ability of the rhetorical community to express itself without economic intrusion, and its ability to critique materiality, power, or sovereignty. As Hauser has argued, “The political sphere is undermined if citizens are guaranteed access only to find it fettered with restraints of law, economics, group psychology, information, or the like” (57). Hauser argues that literature is part of the democratic public sphere, yet I have argued in this article that not all literature is allowed to exist equally. The literary community of Lawver is allowed to exist only by Warner Brothers indulgence. While The Daily Prophet may fit a rhetorical model of literature in a commercial public sphere, Neely’s satire—formerly a political statement—is now under attack. This is one cogent example of the effects of neoliberalism, applied through copyright, which diminishes the act of free speech (satire) in the public sphere.

This is to say that motivations are an important factor in the public sphere. Asen and Brouwer critique Hauser’s idea of a too democratic rhetoric-based public sphere, saying, “Even in a multiple public sphere, participants in particular exchanges sometimes actively work to dismiss or exclude the involvement of others” (6). This is certainly true of Warner Brothers ability to prosecute, or not, counterpublic “pirates”; thus, Hauser’s model doesn’t adequately describe the operative sovereignty of neoliberal pressures that separate Lawver and Neely into two different types of publics or counterpublics despite each writer’s status as a fan fiction producer and member of a fan community. To this extent, we see reflections of Papacharissi’s pronunciation of how a commercialized, neoliberal public sphere limits plurality. Papacharissi states that

plurality is associated with diversity of perspective, which is possible but not guaranteed with inclusion or broad participation. Plurality is premised upon open participation, performed in activities pursued and shared in public, and entails the forgoing of private life and self-interest. In this sense, commercialized public spaces obstruct plurality and displace public activity to private realms where the possibility of potential plurality is also doomed. (40)

Because fan texts and communities exist in a space where political affect and its contingent agency exist only in their potentially subservient relationship to sovereignty and copyright law, fan communities are always under threat of having a limited public-ness that is shaped by copyright. This is certainly true of Brad Neely’s Wizard People, Dear Reader and its community. With the limiting of satire, the criticalness required for a public stance dissipates or disappears entirely.

Robert Asen has argued that the theorization of counterpublics requires a critical component, wherein emancipation from oppression is central in granting counterpublic status, and material privilege denies some communities or publics the status of a counterpublic. Asen critiques early neoliberal rationale for agency, where agency is defined economically, through unfettered choice, not through a discussion of limited opportunities offered to marginalized individuals and communities (278). In this neoliberal market view, communities and the public good do not exist. One community cannot be sovereign to another and counterpublics have no claims toward marginalization or emancipation. Only the individual matters in this conservative formulation of the public sphere. Asen’s critique of this stance defines the ability of market logics to “restrict discursive space by asserting, rather than arguing for, preferred governing philosophy […] which ignored the complexities of a pluralist society” (282). One major factor in assessing counterpublics’ marginalization is the ability to constrain or have constrained one’s discursivity. Asen argues that

the success of pro- and anti-suffrage movements, for example, held decidedly different implications for the expansion and constriction, respectively, of discursive space, offering grounds for differing critical judgements. Taking a progressive stance means invoking a public sphere theory as a critical theory and investigating emancipatory possibilities and oppressive practices in public and counterpublic spheres. (268)

In this argument for a critical counterpublic, Asen connects the basic idea of constrained discursive activity to neoliberal market principles. These principles act as the agent in limiting discursive activity in the public sphere. As I argued previously, Lawver and her fan community have their own writing commodified by Warner Brothers. I would suggest that Lawver’s The Daily Prophet, despite remaining in production and circulation, cannot be seen as having a permanent critical stance; Lawver’s fiction remains in its current public circulation because of a lack of critical-ness, whereas Neely’s satire, potentially defensible as a satirical, political statement, is shut down and has its circulation altered by Warner Brothers because Neely’s work is viewed as a critical statement that threatens Warner Brothers’ market desires.  

This, I suggest, is a new facet of 2.0 literariness in the public sphere, and future critical inquiry into fan fiction in the 2.0 public sphere must also consider who allows the copyrighted material to circulate, for what reasons it is allowed to circulate, what legal models are applied or not (i.e., the piracy model), what similar fan communities are threatened or prosecuted, and how their writing and reading is potentially commodified for market principles. In short, we must ask if fan literature is “dangerous” or not. If we see that fan fiction seeks to ridicule or satirize its copyrighted parent text, then we will have reached a point where neoliberal sovereignty can encourage non-critical texts and slow, if perhaps not stop, texts that can be read as critical of their parent, copyrighted text. Finally, the answers to these questions should be based upon all aspects of publics, counterpublics, and critical inquiry, and neoliberal and market rationale based upon the relationship between commerce and citizen publics must remain a focus of inquiry. Particularly, rhetoricians must continue to investigate 2.0 texts’ limited discursivity through constrained rhetorical purpose or public usage. In connecting discursivity, neoliberalism, commercialism, and/or copyright to public sphere theory, any critical theory must consider economics and market rationales to be a major influence in the circulation of not only literary texts, but all texts and the literary and non-literary publics and counterpublics that participate in public sphere dialogue.



Works Cited



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Asen, Robert. “Ideology, Materiality, and Counterpublicity: William E. Simon and the Rise of a Conservative Counterintelligentsia.” Quarterly Journal of Speech 95.3 (August 2009): 263-88. Print.

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Biography: Liberty Kohn is an assistant professor at Winona State University in Winona, Minnesota. He is the writing center director, WAC coordinator, and co-chair of faculty development. He teaches a variety of public, technical, and digital writing courses, as well as teacher practicum and theories of poetics seminars. His interests are genre theory and public writing. Liberty has published in a variety of journals and collections, including the Journal of Language and Literacy Education, the Journal of Literacy and Technology, and Technology in the Literature Class (Bedford/St. Martin’s, forthcoming). Liberty is also a musician and audiophile who has written national jingles and performs live on guitar.


© 2012 Liberty Kohn, used by permission.


Technoculture Volume 2 (2012)