Gilly on The Corporate Villainy of Tom Sawyer: Manufactured Scarcity, the Ethics of Attention, and the Literary Prehistory of Dark Patterns

Travis Gilly, Real Safety AI Foundation, has published The Corporate Villainy of Tom Sawyer: Manufactured Scarcity, the Ethics of Attention, and the Literary Prehistory of Dark Patterns. Here is the abstract.

The whitewashing scene in Mark Twain's The Adventures of Tom Sawyer (1876) is conventionally received in one of two ways: as a comic illustration of the malleability of value, the reading made canonical in behavioral economics by Ariely, Loewenstein, and Prelec (2006), or as a celebration of the boyish individualist, the reading carried into popular culture by works such as Rush's 1981 song of the same name. This paper proposes a third reading. It argues that the scene is the earliest structurally complete literary rendering of the design logic now catalogued under the heading of dark patterns: manufactured scarcity, engineered desire, and the extraction of value from a manipulated audience. On this reading Tom is not a charming rascal but the prototype of the engagement designer who optimizes a system against the people inside it. The paper distinguishes two ethics of gamification, the earned, in which an activity is genuinely made worth doing and the designer participates in it, and the engineered, in which desire for access to a hollow good is manufactured and the designer abstains, and it proposes the designer's own abstention, the refusal to consume the product, as a diagnostic of the engineered kind. Locating the reading within the ethics of attention and persuasive design (Fogg, 2003; Verbeek, 2011; Williams, 2018) and the dark patterns literature (Brignull, 2010; Mathur et al., 2019), it contends that the fence is not a quaint antecedent but a working model of contemporary attention capture, and that the uniformly admiring reception of Tom is itself evidence of how thoroughly the culture has naturalized the extractor as hero. It closes on the irony that Twain, who coined the term Gilded Age and named the capitalist as the oppressor, narrated the con as cleverness and never marked it as harm.

Download the paper from SSRN at the link.

Published at ContractsProf Blog: Guest Post by Sid DeLong on Legal Fictions

Sid DeLong on Legal Fictions: A Guest Post. Published at ContractsProf Blog.

McFarlin on A Copyright Ignored: Mark Twain, Mary Ann Cord, and the Meaning of Authorship @CumberlandLaw @TheCSUSA

Timothy McFarlin, Cumberland School of Law, is publishing A Copyright Ignored: Mark Twain, Mary Ann Cord, and the Meaning of Authorship in volume 69 of the Journal of the Copyright Society of the U.S.A. Here is the abstract.

Did Mark Twain and the Atlantic infringe a copyright belonging to Mary Ann Cord in the story of how enslavers tore her family apart and how she was ultimately reunited with her youngest son? If so, might that long-ignored infringement be remedied today? In 1874, Cord told Twain the heartrending and astounding story of how her family had been ripped from her, and how she was liberated years later by her youngest, Henry, who had become a soldier for the Union. Twain proceeded to write Cord’s story down from memory, organizing the events chronologically, editing it, and describing how she told it. Twain published this manuscript in the Atlantic Monthly as “A True Story, Repeated Word for Word as I Heard It,” for money, under his name alone. Analyzing the questions above — Was this infringement? Could it still be remedied? — this project unfolds in two parts. This first part, “A Copyright Ignored,” focuses on the thorny threshold issue of copyrightability, arguing that Cord was indeed an author who had a common-law copyright in the words she spoke to Twain. The second part, “A Copyright Restored,” published in the Wisconsin Law Review, tackles the issues of infringement and remedy, arguing that Twain and the Atlantic likely did violate Cord’s rights and, further, that a claim by her descendants may still exist today. In this way, her case may set a vital precedent for righting other longstanding wrongs, particularly those against the Black community. Cord’s case could set precedent in other ways, as well. The same key which unlocks her rights can help open us to a deeper understanding of authorship in copyright law. The answer to whether Cord — who it’s said could neither read nor write and who never claimed to be an author — qualifies as one should tell us about more than just copyright’s past. Contrary to the views of many courts and scholars, I argue here that “authorship is as it does.” It’s not merely a self-conscious enterprise. It need not be limited to people like Twain, Austen, and Hemingway. It’s for everyone, and the law should recognize that.

Download the article from SSRN at the link.

A New Book on Authors, Copyright, and Celebrity

Mark Rose, University of California, Santa Barbara, has published Authors in Court: Scenes From the Theater of Copyright (Harvard University Press, 2016). Here is a description of the contents from the publisher's website. 

Through a series of vivid case studies, Authors in Court charts the 300-year-long dance between authorship and copyright that has shaped each institution’s response to changing social norms of identity, privacy, and celebrity. Authors’ self-presentations in court are often inflected by prevailing concepts of propriety and respectability. And judges, for their part, have not been immune to the reputation and standing of the authors who have appeared before them in legal dramas.

Some authors strut their roles on the public stage. For example, Napoleon Sarony—the nineteenth-century photographer whose case established that photographs might be protected as works of art—was fond of marching along Broadway dressed in a red fez and high-top campaign boots, proclaiming his special status as a celebrity. Others, such as the reclusive J. D. Salinger, enacted their dramas precisely by shrinking from attention. Mark Rose’s case studies include the flamboyant early modern writer Daniel Defoe; the self-consciously genteel poet Alexander Pope; the nineteenth-century abolitionist Harriet Beecher Stowe; the once-celebrated early twentieth-century dramatist Anne Nichols, author of Abie’s Irish Rose; and the provocative contemporary artist Jeff Koons. These examples suggest not only how social forms such as gender and gentility have influenced the self-presentation of authors in public and in court but also how the personal styles and histories of authors have influenced the development of legal doctrine.

Via @LawandLit and Legal History Blog.

Appropriation, Mark Twain Style

Via @ArsScripta 

Andrew Newman, Stony Brook University, and Brandi So (PhD, Stony Brook, University) have published “It Couldn’t Be Robbery To Steal That”: Artistic Appropriation and Twain's "Jumping Frog."  at 42 College Literature 396 (Summer 2015). Here is the abstract. 

In “The Private History of the ‘Jumping Frog’ Story” (1894), Mark Twain prefaces his account of the provenance of the famous story that launched his career with two anecdotes about artistic theft. Rereading the “Jumping Frog” in light of these anecdotes and the theory of originality Twain espouses in the “Private History,” this essay disputes the widespread interpretation that credits the internal, vernacular narrator, Simon Wheeler, with a subversive deadpan humor. On the contrary, this frame necessarily identifies the fictional Wheeler as a genuine simpleton. Twain similarly framed his historical source for the “Jumping Frog” story; his possession accrued not from exercising artistic originality but through publication and accreditation.

Download the article from Project Muse at the link. Tip of the beret to Simon Stern via @ArsScripta.

Unintended Consequences--Censorship and Humor

Laura E. Little, Temple University School of Law, is publishing Laughing at Censorship in the Yale Journal of Law and the Humanities. Here is the abstract.

Comedians know from experience, and research supports the proposition, that an audience will predictably laugh when observing a censored statement (whether bleeped or otherwise obscured) – at least where the audience has been primed by the context to interpret the statement as comedic. In a society that condemns censorship as the enemy of our cherished right of free expression, one might reasonably ask how this can be: why is censorship funny? This article begins by canvassing the various forms of censorship humor flourishing throughout United States culture in print, film, television, music, and internet entertainment. The article then probes mainstream condemnation of censorship – observing that individuals, law, and society all benefit from line drawing – even in the context of something as special as freedom of communication. Through the lens of interdisciplinary humor studies as well as First Amendment doctrine, the article explores the notion that the laughter emerging from comedy featuring censorship might be a “tell” that exposes this truth. Many censorship jokes simply ridicule the censor. Others, however, are more nuanced, suggesting that censorship humor might provide unique emotional rewards ranging from a spark emitted from the benign danger of a censored joke, the creative enterprise of imagining what message was – to the comfort of mapping the line between the proper and improper. Audience laughter at censorship humor often appears to derive primarily from pleasure. It might also include a measure of anxiety, fear, and anger. That complexity, however, does not mitigate the possibility that humans occasionally see and enjoy some inherent value of censorship as separating “right” from “wrong.”

Download the article from SSRN at the link.

Professor Little's comments on censorship humor remind me of one of my favorite passages from The Innocents Abroad. In it, Mark Twain discusses his visit to the Jardin Mabille and his experience of that scandalous dance, the "can-can."  "The dance had begun, and we adjourned to the temple. Within it was a drinking saloon, and all around it was a broad circular platform for the dancers. I backed up against the wall of the temple, and waited. Twenty sets formed, the music struck up, and then—I placed my hands before my face for very shame. But I looked through my fingers." Mark Twain, The Innocents Abroad (Hartford, CT: American Publishing Co., 1869), Chapter 14.



 

Some New Publications of Interest

William S. Hein & Co. has published Mark Twain vs. Lawyers, Lawmakers and Lawbreakers: Humorous Observations, edited by attorney and author Ken Bresler. The book includes numerous quotations, fully verified, from Twain's writings. Because Twain is one of my favorite writers, I'm looking forward to checking out this new publication. (Full disclosure: Hein is also one of my publishers).

Mr. Bresler is also the author of an article, A Lawyer Looks at Catch-22: The Best Catch There Is Is Not Much of a Catch. While the phrase "Catch-22" has entered the vocabulary, there's not much in the legal literature about the intersection between Heller's novel and the law, so Mr. Bresler's piece is a welcome addition to the scholarship. Here's a link to the work.

New Publications In Iberian and Hispanic Law and Literature

Newly published in the law and literature area:

Jose Calvo Gonzalez, Derecho y Literatura, ad Usum Scholaris Juventutis (con relato implícito), 34 (66) Seqüência: Estudos Jurídicos e Políticos, 15-45 (2013). 

Eddy Chávez Huanta, Don Dimas de la Tijereta: El tinterillo que litigó en el averno, 12 Criterio y Conducta (2013) at pp.313-334.

Amilcar Mendoza, Il postino o la ardiente paciencia de los rectos hombres de leyes, 12 Criterio y Conducta (2013) at pp. 351-361.

André Karam Trindade and Luis Rosenfield, Cervantes, Twain e Lobato: reflexões sobre direito, literatura e censura, Revista de Investigación e Innovación Educativa (June, 2013). Text available here.

More discussion at Professor Gonzalez's excellent blog, Iurisdictio-Lex Malacitana.
Thanks to Professor Calvo for the information about these valuable publications.

Race, Property, and Gambling in Mark Twain

While I was looking for something else on SSRN, I came across this interesting paper by Naomi Reed.

Naomi Reed, Columbia University, The Wagers of Whiteness, The Wagers of Blackness Gambling and Race in Pudd'nhead Wilson . Here is the abstract.

"The Wagers of Whiteness, The Wagers of Blackness" analyzes the late nineteenth-century erosion of African Americans' newly acquired citizenship rights by turning to the relationship between gambling, property, and slavery in Mark Twain's Pudd'nhead Wilson (1894). Tom Driscoll's ever-present gambling debts turn him into a thief, and his thefts not only make him unfit to inherit the Driscoll fortune, but also ultimately unmask him as, in Twain's words, "a negro and a slave." Tom's thefts come to constitute blackness as the theft of whiteness, and the novel thus renders racial difference visible through property relationships. This connection prompts a reinterpretation of Plessy v. Ferguson specifically as a property claim: Homer Plessy argued that segregation deprived him of the property of his reputation of being a white man. Juxtaposing Plessy's denied property claim to the Supreme Court's commitment at the close of the nineteenth century to the protection of property rights, this paper shows how race remained articulated in and through a language of property even as biological discourses about racial difference came to the fore.

Download the paper from SSRN here.

Spiritualists and Copyright

Christine A. Corcos, Louisiana State University Law Center, has published 'Ghostwriters': Spiritualists, Copyright Infringement, and Rights of Publicity, in Law and Magic: A Collection of Essays (Christine A. Corcos, ed.: Durham, NC: Carolina Academic Press, 2009). Here is the abstract.

In 1917, British-born editor and publisher Mitchell Kennerley (1878-1950) offered for sale Jap Herron, a new novel which he implied was written by the eminent Mark Twain. There was no author's name on the title page, but the frontispiece was a portrait of Mark Twain. This book included an introduction by St. Louis journalist and author Emily Grant Hutchings explaining the odd origins of the novel. Indeed, they were odd - Mark Twain, whose real name was Samuel Clemens, had been dead for six years, and the manuscript of Jap Herron was not some old piece of fiction he had left behind in a desk to be discovered after his demise. In her preface, Mrs. Hutchings claimed that Twain, to whom she referred familiarly as Mark, and whom she had met during his life, had dictated the book, as well as two short stories, to her through a Ouija Board, that is, through spirit communication via a board labeled with the alphabet, and with the assistance of a spirit medium, Mrs. Lola V. Hays.