Stop Calling Yourselves Criminals!
A.k.a. "legalities and fanfiction." Disclaimer: I am not a lawyer. I am not a paralegal, nor a legal secretary. My experience with law is pretty much limited to essays on the web, and scanning depositions for law firms. I'm comfortable with legalese, but I'm aware that I don't understand the fine nuances. This is not legal advice; it's an essay
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Disney defends its trademarks viciously because trademark law requires it. (The fact that they claimed--and got!--trademark on what were otherwise merely copyrightable works of art is another sticky mess altogether.) If you don't prosecute trademark infringement, you lose rights to the mark. That's why Xerox ran all those ads in the 80s and 90s about how you "can't make a xerox of a xerox on a xerox." Copyright law doesn't require the same fangs and growl approach that trademark does, because the laws are intended to do very different things.
The theoretical basis for copyright law is that society benefits from authors/creators sharing their works, and so in order to receive that benefit society allows them a specified bundle of rights regarding that work for a limited period of time. It's all about protecting the author's ability to exploit the work.
The theoretical basis for trademark law, however, is consumer protection. (Yeah, yeah, I can see you rolling your eyes--and I get it--don't shoot the messenger and all. Again, reality and theory don't always mesh.)
Anyway, Disney has bigger fish to fry than fanfic or sororities printing Nemo and Mickey on their homecoming t-shirts. The resources required to win (and Disney could win, since they can buy the best lawyers they can find and/or have all the other good ones conflicted out) are not worth the outcome.
I'm not arguing that anything that falls under "fanfic" is automatically infringing. In most cases, the lines are quite a bit more clear than most fanfic writers are making them out to be, or at least based on past infringement cases the authors have a very good chance of winning (on principle, since they sure aren't going to make any money).
(Depending on what people wanted to do with their notes from the seminars, they could theoretically be infringing copyright. Assuming that the seminars themselves met the requirement of having "fixed" form. The smart author would not rely on copyright law, but instead make a contract between him and seminar attendees--that would guarantee a win on his part.)
The word "crime" is usually used to talk about breaking a criminal law. You don't become a criminal by breaking a legal contract, for example, or inadvertently creating an attractive nuisance (my favorite tort), or otherwise violating someone's rights that are not covered by a criminal law. I suppose this is debatable, and since I can't go dig out both my Black's and my OED and compare, I'm not willing to stand on this as an absolute rule. (Also, we are pretty sloppy with our use of language in this country, and we tend to play fast and loose with anything we stole from the English that they stole from the French/had imposed on them by the French, which is just about every law-related term in common usage.)
Copyright law has been a huge messy mess for quite some time. The main problems are that technology moves faster than the law (and porn drives technology, so that makes "fast" a nice play on words, tee hee), and the law tries to be broad enough to include things while not adequately addressing them. I'm not sure we need copyright law as the incentive to share that it was intended to be, and I also think the US should shut up and adopt some of the European moral rights w/r/t sculpture and objets d'art. Work-for-hire doctrine needs a massive overhaul as well, but that tends to contradict our (English-stole-it-from-the-Romans) love of the ability of man to freely engage in contracts.
At least the laws now recognize that to use software, you have to make a copy. Small steps man, but we have to start somewhere.
The impetus to rearrange the Bern provisions is going to have to come from outside the US. The MPAA and movie studios, musicians and record labels, video game companies, all stand to loose too much (think piracy in China) if the overhaul stars here.
I do predict that within my lifetime, all of intellectual property law--including patent law and trade dress--will see some VERY interesting changes.
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I firmly believe (in my nonlawyerish head) that they did this because they wanted to be able prosecute unauthorized use of those materials--and knew that copyright law wouldn't stretch nearly as far as they wanted it to.
Depending on what people wanted to do with their notes from the seminars, they could theoretically be infringing copyright.
I'm thinking of Gabriel. I don't know how much of the background you're familiar with--but he tried to claim "copyright infringement" even in cases where someone else handed off their original notes from his classes. And while he was a particularly clueless example, there are authors who believe "everything remotely possibly connected to my creation is covered by my copyright, and is a violation if I say it is." (And the law is big and blurry, and publishers encourage that kind of thinking.)
I do have to wonder how fanfic connects with RPGs and other games, legally... for example, I have a Harry Potter video game. I can play it at will. It'd be... odd, at best... to insist that a description of the game I played ("first Harry defeated the bats, then he went to the Hogwarts great hall and met Hermione, who gave him a book...") is a violation of copyright. And the ones that have actually licensed tabletop RPGs have their own psychotic intersection with copyright laws.
In most cases, the lines are quite a bit more clear than most fanfic writers are making them out to be
Can you point to examples?
Parody is one *huge* fair use gap--and defining "parody" is many lawyers' nightmare. (Is erotic HP fic automatically a parody? Many people react with shock or giggles when they first meet the concept--exactly the reaction that parody expects to receive.)
You don't become a criminal by breaking a legal contract, for example...
I was under the impression that all violations of (for example) California Law would be "crimes," and those crimes are divided among penal violations, civil violations and so on. If not... what's the term for "a violation of civil code" that equates to "crime=violation of penal code?"
(This is a linguistic question, and I'm fully aware it's got nothing to do with copyright law issues. And if the answer is "I dunno exactly; I remember there's a difference but geeze, second year of law school was quite a while ago," that's fine too.)
I do predict that within my lifetime, all of intellectual property law--including patent law and trade dress--will see some VERY interesting changes.
Yep. 'Cos right now, there's loopholes you can drive a truck through, and psychotic rulings that only stand because the victims are too poor to keep dragging it upward to a higher court. But yes, the MPAA and RIAA are going to fight tooth and nail to keep it from changing, because none of the potential changes are going to be in their favor.
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I believe the term you're looking for is "tort". I'm not aware of a form of the word that would equate as criminal does to crime... although in my head I frequently use "tart", but that's because my business law professor had almost as twisted sense of humor as I do, and there was this long shaggy-dog story that I don't remember all of...
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If I break a contract, I have committed a ________; I am a __________.
Does "tort" fits in either of those blanks?
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Erm. Probably not. Does English have a word for "person found guilty of a tort?"
So... I gather that, unlike "crimes," there is no requirement to prosecute torts? That they are not a concern of the State, unless some specific department of the State is directly involved?
(I know all about the dead trees aspect; I scan that paperwork, convert it to tifs & PDFs, and attempt to politely explain to paralegals that no, you cannot have a "text-searchable tif;" there is no such thing, any more than there is a "printed MP3," and I don't care what your software package convinced you about it.)
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In general, the State's major concern for civil law (other than family law, although it applies there, too) is to provide a framework for folks to work out their civil disagreements without having to resort to criminal acts. They want you to sue the partner who screwed up your business instead of getting a gun or a good hitman.
But if your business partner screws you over and you don't go after him for it, the State doesn't really care. (Unless, of course, criminal laws were also broken in said screwing over. Then they get interested.)
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Interesting discussion. My dissatisfaction with current copyright is the practise of enforcing it by physical and electronic means which will still be there when the copyright has expired. Well, if they weren't hacked they would be.
Here via metafandom
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Paper books were never published with a single key given to the buyer, who was warning against criminal (tortuous?) penalties if he loaned it to someone else. (At least, not on a standard basis.)
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I'll see if I can dig out my copyright law casebook (which is now a bit out of date, at least where the DMCA is concerned...I ought to find a newer one on ebay someday) and find the parody cases and those relating to partial use of the work of another. There are no fanfic cases, of course, but there are cases that would be considered controlling precedent.
As for the linguistics--and I'm speaking from memory here, so don't hold me to the infallibility standard--civil law and criminal law are separate entities. (In some states, they even have completely separate courts.) The main differences... First, in civil law, there is never the possibility of the penalty of going to jail or prison as a result of breaking the law. The defendant may have to pay a fine, or stop doing something, or return property, or comply with a court order, but won't "do time." Second, to the best of my knowledge and understanding, civil violations also do not result in a criminal record, and are inapplicable for purposes of "three strikes laws" and such. Third, criminal cases can only be brought by a government representative (district attorney, prosecutor, etc.) because they are considered acts that harm society as a whole. Civil cases can be filed by anyone, and are considered acts that harm individuals (in the case of mass torts, groups of individuals). This gets confusing at a point though, since some actions may violate both civil and criminal laws.
I was thinking about this conversation last night, and one of the things I kept coming back to is this: in any dealing among humans, there will always be some degree of indeterminacy that will make at least some people unhappy, and there will always be some things people cannot agree on. The example I usually use is murder. We can all agree, in big broad brushstrokes, that killing people is bad, not something we want perpetuated in society. But it is not an absolute rule--we have exceptions for self-defense, for example, and reduced penalties for accidentally killing someone versus doing it on purpose. In Oregon it is legal to help someone kill themselves under certain circumstances in accord with the Death With Dignity Act, while in most states this is murder. Some people argue that abortion is murder, withholding medical treatment for religious reasons is murder...anyway, you get the point (and I'm pretty sure we come out the same on the murder issues).
So in the ideal world, in which you get to write the best possible laws about fanfic, what would you have the laws be? (I'm not looking to start a fight, this is genuine nerdy curiosity.)
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I have spent some time thinking about "what I think the laws should be," and I keep coming up with MURK. They'd involve a total rehash of IP laws, and I'm not sure I can even imagine in that direction well enough to extrapolate. I'm brainstorming here--no guarantee these ideas will withstand real scrutiny.
I expect I'd like a fairly short limit on automatic copyright protection, and a requirement to register for longer... 14-20 years first run, renewable for the same length for a fee, renewable longer for a *big* fee (presumably, to offset the economic value of the creative works not being made because of the restrictions). I'm basing this one off the works of lawyers who've studied it a lot more than I have; I understand (and agree with) their basic premises, but can't defend the fine details.
I'd also like something like Creative Commons to become standardized, so you have to choose a set of rights when publishing... and some kind of incentives to choose the less restrictive forms. (Like, it costs more to register for complete restrictions after that first batch of years. Or tax breaks for publications that allow derivative works, or something like that.)
I'd like a nice solid list of what's *not* covered by copyright without registering it, and what can't be copyrighted... like maybe certain business documents, and anything that's required to be in the public record. (Right now, as I understand it, job applications are copyrighted. As in, they can't copy the one I fill out to give to both the HR department & staffing, without my permission. Which is insane.)
I'd probably lean towards not-for-profit, no-economic-disad-to-original variants being legal. That strikes me as hideously hard to prove in some cases.
I'd want a clarification of "publishing." Does it, or does it not, include webpages? (I've heard it doesn't, and they are instead "public display." Does it include "making a printout so I can read it easier?"
Also want a clarification of fair use, and how that ties to copies or transformations for personal use. Right now, I only assume that it's okay for me to take a web page, copy & paste it in Word, add palm markup tags, put it in Notepad & save as .txt, then convert to .pdb to read on my Clie. I do this *often.*
(And I'm gonna go get lunch now, rather than continue to ramble about what I think copyright law should be changed to deal with.)
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I do have to wonder how fanfic connects with RPGs and other games, legally... for example, I have a Harry Potter video game. I can play it at will. It'd be... odd, at best... to insist that a description of the game I played ("first Harry defeated the bats, then he went to the Hogwarts great hall and met Hermione, who gave him a book...") is a violation of copyright. And the ones that have actually licensed tabletop RPGs have their own psychotic intersection with copyright laws.
I've wondered about this with regard to fanfic based on Roger Zelazny's Amber series. The tabletop system he licensed based on the books allows for playing characters from canon and encourages in-character journaling and game logs by awarding points for them.
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Call of Cthulhu's got its own little industry going.
Amber, Elfquest, Dr. Who, Empire of the Petal Throne (damn, I have some obscure RPGs), Midnight at the Well of Souls, Lord of the Rings, Star Trek, Star Wars, Wizards, Serenity, Robotech, Babylon Project, Dune, DC Heroes, Marvel Superheroes, plenty of others...
I have no idea how the original copyright holders deal with either stories of game sessions, or stories & artwork inspired by them.
I know that TSR tried to shut down several online D&D-oriented websites. (I note that, not much later, TSR was sold to WotC, which quickly added the OGL to their standard licensing. I'm not sure what TSR was thinking... "play our game, but don't talk about it?")
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I'm not sure what TSR was thinking... "play our game, but don't talk about it?"
It does bring up a fine paradox for IP holders with RPGs, doesn't it?
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