In some ways, I can't believe that more than 15 years after the first evidence that the Internet can be eternal, we're still fighting this fight
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Oooh, lovely. (Here from Metafandom, in case this is coming out of nowhere.) Copyright law is all crunchy and complex and online fandom needs more general awareness of it (especially 'cos, in less than a decade, barring bizarre acts of disneytude, we'll start getting new toys to play with, including The Mouse Himself).
Currently, with the public domain set at Life+70, it looks like such a long stretch that nobody has to think about it. But it's still there--and nothing prevents congress from shortening copyright; they could decide to go back to 26+26 years. (I'm not expecting it. But there's no meta-law that requires copyrights to only get longer, or to not retroactively change--or else they couldn't have been extended for existing works.) And along with changing copyright lengths, there's the issue of why copyright ends at all--which is so that material *does* enter the public domain, so there *is* an expectation that, once people have a legit copy, they can keep it, and make that copy available to other people.
With digital copies, that's a bit difficult without making an extra (unauthorized) copy, but there are some ways to do so (loan my ebook reader to a friend; have a legit collection of fanfic on a flash drive, etc.), but it's possible that future tech will include cloud/terminal access ability that doesn't make a copy on the reader's computer. (Fanfic authors don't have to worry about trying to block that one; the RIAA is *all over* those software improvements.)
There are weirdnesses about "publishing" that copyright law hasn't sorted out... if fic is only available on a locked LJ post and in a password-protected archive, has it been "published?" If membership is restricted by some criteria, was it "published?" (I tend to think publication to a select group is still publication, but I could see an argument otherwise. It's not like copyright lawsuits haven't been filed on ridiculous claims.)
For the purposes of this post, I was mentally putting "protected" fan fiction into the category of maybe-not-published. At my heart, I think from the standpoint of a publicly accessible fan fiction archive, since that's what I've always run.
I think of selective-membership locked content as probably-not-published. (It may count as published; if you make 40 copies of a chapbook of poetry to distribute to the guests at an invite-only wedding, that may be publishing.) I grant that that particular aspect isn't likely to be important to the discussions; for the most part, we're talking about stuff that was viewable by anyone with an internet connection.
One of the key bits of copyright infringement that doesn't come up in fanfic discussions: rulings are strongly based on marketing effects. Whether a use is "fair" depends on more than just proving that someone copied it--libraries are allowed to make copies for archiving & research purposes; individuals are allowed to make copies for educational use. Claiming that a copy was sent around w/o the author's permission "in order to create a strong networked archive, in the hopes that one or more copies will survive until this work enters the public domain" might be a viable argument in court.
Which leads to the next issue: copyright isn't easily upheld by individuals. It's expensive to prosecute. It's not designed for individuals to go after other individuals; it's designed to be aimed at corporations, either by other corps, or people they've screwed over, who can convince a lawyer to work on contingency.
The social side of fandom has a much better chance of influencing people's behavior than calling on the law. Saying "people who share authors' works after they've removed them are asshats who deserve to be shunned" can be a reasonable & effective statement; saying "people who ... because copyright law forbids it," are lacking some awareness of how copyright law actually works. It's designed to allow rather a lot of casual, low-level, noncommercial infringement.
Quoting a song w/o permission at the start of each chapter of your published book: infringement likely to get you sued. Quoting a song at the top of your local knitting club's free newsletter: much less likely. Quoting a song in a letter to your sister: impossible to discover unless you mention it--and the idea that Bob Dylan would come after people for putting verses--or whole lyrics--in private correspondence, would strike people as ridiculous.
The social side of fandom has a much better chance of influencing people's behavior than calling on the law. Saying "people who share authors' works after they've removed them are asshats who deserve to be shunned" can be a reasonable & effective statement; saying "people who ... because copyright law forbids it," are lacking some awareness of how copyright law actually works. It's designed to allow rather a lot of casual, low-level, noncommercial infringement.
Yet the social beliefs of fandom do differ widely from fandom-to-fandom, which is why we end up with discussions like the one about passing around deleted or lost fiction. They also tend to change over the course of the history of the particular fandom.
I kind of have a horse in the race here, because weeks (months?) ago, I was the the one who suggested that the person who proposed the "lost/removed story" group take a look at the ones that exist for many older fandoms and perhaps model something on that basis. In all the fandoms I've been in long-term, that type of public discussion of removed/deleted fiction, in fact to he point of sometimes keeping lists of who can be asked for what story, is acceptable and non-controversial.
Agree 100%. Fandom social standards are slippery and diverse and complex, but that doesn't mean there's no templates to work from.
I can understand people wanting to fall back on something as stable as copyright law instead of the vagaries of social groups that shift over time and vary widely by fandom, but it just isn't built for what a lot of authors seem to want. Even if fans are totally, 100% compliant with copyright law, and never ever email a copy of fic to a friend, someone can have an external drive where they archived the entire collection of Fandom X's Fic Site before it was pulled, and bring it to a convention and allow people to read the fic on their laptop. If they do it with certain types of software, it doesn't even leave a trail on the hard drive; the viewing copy is on the portable drive. (Which is, on the one hand, kinda silly to think about. On the other, copyright law is *such* an inefficient, clunky tool for managing fanfic sharing permissions. It never worked well for small, limited publications, and it works less well for content released widely for free.)
I would love to see less wanky discussion about "which fandoms, what types of removed content, are available to be shared with whom & under what conditions."
If it vanished when Geocities went under and the author hasn't reposted it, does that mean she wants it gone--or she's moved on and doesn't think there's an interest, and just doesn't care to put effort into making stuff available? If it was pulled because she sold a version of the story professionally and was required by contract to pull it, does she *actually* care if it's shared, or does she just want to cover herself legally with authorial DADT? If she pulled it because it got replies she didn't like, does fandom have an obligation to respect her wishes? (Fandom_wank is perfectly willing to post screencaps of formerly-public meta; are they just as willing to post screencaps of formerly-public fic?) None of this is going to be easy-and-obvious, but it doesn't get easier by pretending that copyright law will cover the issues.
None of this is going to be easy-and-obvious, but it doesn't get easier by pretending that copyright law will cover the issues.
A very good summary of the point I was trying to head towards in a roundabout way. I have a further post on this that then talks about social standards in fandom, but it's nowhere near ready for public consumption yet. Kind of view this as Part 1: why screaming IT'S ABOUT COPYRIGHT!! isn't going to cut it. ;)
Claiming that a copy was sent around w/o the author's permission "in order to create a strong networked archive, in the hopes that one or more copies will survive until this work enters the public domain" might be a viable argument in court.
I'm more attaching this to the post for my own future reference, although it's an interesting aside ... it is also legal, in the US, for a library or archive to make available one copy per requestee, in full, of any work in its collection which is not otherwise available (at a fair price). What I wonder on is the definition of library or archive in the above to take advantage of that protection.
There's no official, legal definition of "library"--but it needs to be accessible to the public. A digital library with free access to anyone is arguably more legal than a private researchers' library with a closed membership. (Which has some rather terrifying implications for fandom.)
Copyright law is designed to encourage distribution, not profits--those are the carrot, not the destination.
Encourage distribution, but the example of the digital library brings us right back into the tangle of what the control of distribution rights means, since each access is in reality a separate distribution of a copy. Thus far, online, that's basically been interpreted to mean "you stop allowing access when I tell you to stop". Unlike a library with a real bound copy, which has the legal right to allow that bound copy to continue to circulate since they own something physical.
Ah, you must have gotten here from delicious. I was like, ah, great, metafandom must have updated! And I am already all warmed up for a copyright discussion tonight due to something else.
(I dropped the link to metafandom myself. Sometimes I can be a bit masochistic.)
This is of course an entirely different thing, but according to German law, publications means "theoretically anyone has the chance to look at it". So a speech at a wedding with only invited guests or a lecture in front of students enrolled at some university doesn't count as publication, no matter how large the audience. According to that, I'd say posting to a password-protected archive counts as published because anyone could sign up if they only bothered, but and flocked entry doesn't as the author manually selects their friends.
But then, according to German law, the whole debate is a bit moot as fanfic is clearly an infringement of author's rights...
Heh. German law isn't moot because fanfic is an infringement; it's moot because LJ's servers are in the US, as are fanfiction.net's and AO3's and most other fanfic repositories.
Putting content up publicly at LJ is publishing it in the US. The author may also be dealing with German copyright law, but the readers aren't, unless they're in Germany.
In the US, a speech isn't publication no matter who was or could be present, unless it was recorded or written out first. Gotta be "in a fixed form" to be covered by copyright law, and speaking isn't. (Which means that if someone records a spontaneous lecture or speech, the recorder, not the speaker, owns copyright.)
It's not moot for those of us sitting in Germany. While for now it doesn't matter with fanfic, we're seeing a huge impact on fanvids here. If your vid contains *anything* under license from a major label (which is the case for a lot of vids, because a lot of songs are distributed via major labels), youtube will automatically block it in Germany. It's become so bad, it's a major surprise when I can watch anything other than Japanese cat videos!
And it's getting worse, as now they're pushing for legislation that would force anyone to pay for quoting a "snippet" from a publication (basically aimed at getting $$ from google every time a newspaper article shows up in a search). Soon, all of google will be plastered with "This search result is not available in your country. Sorry about that :\", which really, no contrite smiley can make better. I can of course hope that no fanfic will include quotes from works published via a publishing house, and that the algorithm google uses to detect quotes is accurate enough not to flag any fanfic as a false positive, but it sucks balls.
On the other hand, the AO3 would be a publisher too, no? It would be a wonderful troll to sign up for google ad dollars every time a fic on AO3 appears in a search listing... (but again, considering that there is no fair use here, allowing us to access fics in German on the AO3 is making the OTW liable for assistance in copyright infringement in the first place.)
Ah, what the hell, this shit has got to implode soon, it's untenable.
Currently, with the public domain set at Life+70, it looks like such a long stretch that nobody has to think about it. But it's still there--and nothing prevents congress from shortening copyright; they could decide to go back to 26+26 years. (I'm not expecting it. But there's no meta-law that requires copyrights to only get longer, or to not retroactively change--or else they couldn't have been extended for existing works.) And along with changing copyright lengths, there's the issue of why copyright ends at all--which is so that material *does* enter the public domain, so there *is* an expectation that, once people have a legit copy, they can keep it, and make that copy available to other people.
With digital copies, that's a bit difficult without making an extra (unauthorized) copy, but there are some ways to do so (loan my ebook reader to a friend; have a legit collection of fanfic on a flash drive, etc.), but it's possible that future tech will include cloud/terminal access ability that doesn't make a copy on the reader's computer. (Fanfic authors don't have to worry about trying to block that one; the RIAA is *all over* those software improvements.)
There are weirdnesses about "publishing" that copyright law hasn't sorted out... if fic is only available on a locked LJ post and in a password-protected archive, has it been "published?" If membership is restricted by some criteria, was it "published?" (I tend to think publication to a select group is still publication, but I could see an argument otherwise. It's not like copyright lawsuits haven't been filed on ridiculous claims.)
Ooh, so much to think about.
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One of the key bits of copyright infringement that doesn't come up in fanfic discussions: rulings are strongly based on marketing effects. Whether a use is "fair" depends on more than just proving that someone copied it--libraries are allowed to make copies for archiving & research purposes; individuals are allowed to make copies for educational use. Claiming that a copy was sent around w/o the author's permission "in order to create a strong networked archive, in the hopes that one or more copies will survive until this work enters the public domain" might be a viable argument in court.
Which leads to the next issue: copyright isn't easily upheld by individuals. It's expensive to prosecute. It's not designed for individuals to go after other individuals; it's designed to be aimed at corporations, either by other corps, or people they've screwed over, who can convince a lawyer to work on contingency.
The social side of fandom has a much better chance of influencing people's behavior than calling on the law. Saying "people who share authors' works after they've removed them are asshats who deserve to be shunned" can be a reasonable & effective statement; saying "people who ... because copyright law forbids it," are lacking some awareness of how copyright law actually works. It's designed to allow rather a lot of casual, low-level, noncommercial infringement.
Quoting a song w/o permission at the start of each chapter of your published book: infringement likely to get you sued. Quoting a song at the top of your local knitting club's free newsletter: much less likely. Quoting a song in a letter to your sister: impossible to discover unless you mention it--and the idea that Bob Dylan would come after people for putting verses--or whole lyrics--in private correspondence, would strike people as ridiculous.
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Yet the social beliefs of fandom do differ widely from fandom-to-fandom, which is why we end up with discussions like the one about passing around deleted or lost fiction. They also tend to change over the course of the history of the particular fandom.
I kind of have a horse in the race here, because weeks (months?) ago, I was the the one who suggested that the person who proposed the "lost/removed story" group take a look at the ones that exist for many older fandoms and perhaps model something on that basis. In all the fandoms I've been in long-term, that type of public discussion of removed/deleted fiction, in fact to he point of sometimes keeping lists of who can be asked for what story, is acceptable and non-controversial.
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I can understand people wanting to fall back on something as stable as copyright law instead of the vagaries of social groups that shift over time and vary widely by fandom, but it just isn't built for what a lot of authors seem to want. Even if fans are totally, 100% compliant with copyright law, and never ever email a copy of fic to a friend, someone can have an external drive where they archived the entire collection of Fandom X's Fic Site before it was pulled, and bring it to a convention and allow people to read the fic on their laptop. If they do it with certain types of software, it doesn't even leave a trail on the hard drive; the viewing copy is on the portable drive. (Which is, on the one hand, kinda silly to think about. On the other, copyright law is *such* an inefficient, clunky tool for managing fanfic sharing permissions. It never worked well for small, limited publications, and it works less well for content released widely for free.)
I would love to see less wanky discussion about "which fandoms, what types of removed content, are available to be shared with whom & under what conditions."
If it vanished when Geocities went under and the author hasn't reposted it, does that mean she wants it gone--or she's moved on and doesn't think there's an interest, and just doesn't care to put effort into making stuff available? If it was pulled because she sold a version of the story professionally and was required by contract to pull it, does she *actually* care if it's shared, or does she just want to cover herself legally with authorial DADT? If she pulled it because it got replies she didn't like, does fandom have an obligation to respect her wishes? (Fandom_wank is perfectly willing to post screencaps of formerly-public meta; are they just as willing to post screencaps of formerly-public fic?) None of this is going to be easy-and-obvious, but it doesn't get easier by pretending that copyright law will cover the issues.
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A very good summary of the point I was trying to head towards in a roundabout way. I have a further post on this that then talks about social standards in fandom, but it's nowhere near ready for public consumption yet. Kind of view this as Part 1: why screaming IT'S ABOUT COPYRIGHT!! isn't going to cut it. ;)
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I'm more attaching this to the post for my own future reference, although it's an interesting aside ... it is also legal, in the US, for a library or archive to make available one copy per requestee, in full, of any work in its collection which is not otherwise available (at a fair price). What I wonder on is the definition of library or archive in the above to take advantage of that protection.
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Copyright law is designed to encourage distribution, not profits--those are the carrot, not the destination.
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(I dropped the link to metafandom myself. Sometimes I can be a bit masochistic.)
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But then, according to German law, the whole debate is a bit moot as fanfic is clearly an infringement of author's rights...
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Putting content up publicly at LJ is publishing it in the US. The author may also be dealing with German copyright law, but the readers aren't, unless they're in Germany.
In the US, a speech isn't publication no matter who was or could be present, unless it was recorded or written out first. Gotta be "in a fixed form" to be covered by copyright law, and speaking isn't. (Which means that if someone records a spontaneous lecture or speech, the recorder, not the speaker, owns copyright.)
Is big mess.
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And it's getting worse, as now they're pushing for legislation that would force anyone to pay for quoting a "snippet" from a publication (basically aimed at getting $$ from google every time a newspaper article shows up in a search). Soon, all of google will be plastered with "This search result is not available in your country. Sorry about that :\", which really, no contrite smiley can make better. I can of course hope that no fanfic will include quotes from works published via a publishing house, and that the algorithm google uses to detect quotes is accurate enough not to flag any fanfic as a false positive, but it sucks balls.
On the other hand, the AO3 would be a publisher too, no? It would be a wonderful troll to sign up for google ad dollars every time a fic on AO3 appears in a search listing... (but again, considering that there is no fair use here, allowing us to access fics in German on the AO3 is making the OTW liable for assistance in copyright infringement in the first place.)
Ah, what the hell, this shit has got to implode soon, it's untenable.
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