Finding Evility in the FanLib TOS??? Not likely.
EDIT: I feel compelled, with the various misunderstandings and tangents that the comments have, to preface this post with one fact: I am not defending FanLib in the slightest. I think the fact that they are marketing fanfic as if it is a-ok and legal when the law still says "maybe" is irresponsible and disgusting.
I fully plan on this post being woefully unpopular here, but I stand by it. So, here goes:
The business world can be a dastardly place, indeed, especially when it comes to corporations who have made billions and want to make more billions.
The RIAA connection is FanLib is questionable at best, shady at worst.
But if you guys think that are going to find evility™ in their TOS, you're fooling yourselves.
If you think you hadn't already agreed to similar terms with Livejournal, ff.net, or any of the other countless major journal/fanfic archives, then you're sadly mistaken.
The TOS is designed solely to protect the business. Period. LJ's is no different.
The idea that a website would say "hey, it's not OUR fault user so-and-so infringed on the intellectual property rights of JK Rowling" isn't new and FanLib didn't create it. Here's something from LJ's TOS:
Within the confines of international and local law, LiveJournal will generally not place a limit on the type or appropriateness of user content within journals. Those users posting material not suitable for all audiences must agree that they are fully responsible for all the Content they have posted anywhere on the Service. Should Content be deemed illegal by such law having jurisdiction over the user, you agree that LiveJournal may submit all necessary information to, and cooperate with, the proper authorities;
Devising a structure of 'immunity from prosecution by copyright holders' isn't unique to [potentially shady] businesses who only want to screw communities. Every company will it, or something similar.
LJs:
You agree to indemnify and hold LiveJournal, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any alleged claim or demand, including reasonable attorney fees, made by any third party due to or arising out of your Content, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another, whether you are a registered user or not. The user is solely responsible for his or her actions when using the Service, including, but not limited to, costs incurred for Internet access.
Myspace has it.
Facebook has it.
Google has it. <-- hell, how many @gmail.com do I see from LJ users?? Tonnes. AND THEY ARCHIVE EMAILS!!!!!
Everything, you send, receive, save is on a server. And, guess what, you've agreed to it by agreeing to their TOS, which has everything FanLib's has plus a couple extra things specific to their business needs. Now, so far Google has been pretty 'fuck you' to FBI and CIA when it comes to handing over records. That's a fact that has helped public opinion, but don't think in a way that, should their policy change, you'll be able to sue or protected from it or whatever... you won't be.
Now, that's not to say not to keep looking...
But, if you think that FanLib with its 'intellectual might' would put something blatantly in print that proves that they are evil Evil EVIL, you'll be looking for a long time. TOSs are about as neutral as possible they are designed to be, they NEED to be.
My opinion on their intentions is that they would like to throw fees on fanfiction. Publishers and authors will sign up for PIAA or something (change 'recording' to 'publishing') and publishers will sign up for it, much like labels do. Then, in order to write fanfiction, you'll have to have a license (sign-up fee at FanLib will probably give you a license). Publishers can't afford to go after every fanfic archive spot, just like labels couldn't. But PIAA would be able to... just like RIAA was. Publishers agree to some system of payment with the service fees FanLib will start charging and will have to be happy with that.
And they will be.
Because $1000 a year for 'fanfic fees' is better than nothing, after all.
Let's take the ASCAP and BMI thing as an example.
Jukeboxes became big. Radio started sprouting up everywhere. Dancehalls. Speakeasies. Concert halls.
All of these places where music was being heard and played, but aside from the Dj or owner buying the material, no fees where taken. Somehow, someone got Congress (always bastions of intelligence) to believe that if I as a concert hall owner have a dance and charge -- or don't charge -- then I, as the concert hall owner should pay a fee for the music -- again.
But how to deal with the accounting madness!!! Surely it'd cost too much to even deal with the nightmare!!!
In comes ASCAP/BMI. They'll handle it on behalf of the artists. Artist signs up, pays an annual fee (of course), and receives a check, their portion of the big pool of fees collected.
Okay, that problem is solved. But, how to make sure concert halls, dancehalls, juke-joints, et. al. pay these fees?
That's where county, city, state, and federal law comes in.
You want to open a concert hall? You have to have the right licenses. Of them include either ASCAP and/or BMI fees. Viola.
Of course there was resistance.
Guess who won?
It only makes sense that they [the evil 'they'] go after words. If they can go after the internet (and they will most likely win that, too) then they'll go after words. And, much like music, it'll take probably 20 years for the public at large to think nothing of it.
And, indulge in my paranoia a bit, if they can go after words, then thoughts aren't far behind.
Am I paranoid? Sure.
I've decades of reasons to be paranoid. The government has proven that, when in doubt, they'll default to the businesses. The business, as expected, will default to their pocketbooks.
But this sort of attack (and I do consider this an attack) isn't going to be written out in a TOS. In fact, the ultimate goal of a TOS is that it is translatable under any law. They won't define 'copyright infringement', they'll let the laws do that. They won't define 'child pornography', they'll let the laws do that. Their intentions, no matter how clever or dastardly or against the grain of democracy, won't be spelled out in their TOS.
The best thing to do is to pay attention to any proposed changes of law, Congress, blogs dealing with the FanLib subject, and especially anything that has to do with someone challenging them to an interview (and their acceptance). Our time and energy shouldn't be wasted picking apart their TOS, especially when we freely use a service with a much similar one.
ADDENDUM-1: synecdochic does a wonderful analysis of LJ's ToS and FanLib's. The post can be found here. And I -- as well as others -- thank her (?) for the time taken to do this. However, one of the main issues that synecdochic has is the clause in FanLib's 'indemnity'.
You agree to defend, indemnify and hold harmless FanLib,
Basically, via 'defend', the clause allows FanLib to pass on any court case/fees to you, the author. When it was brought up that LJ could do similar by suing authors for 'breach of contract', synecdochic points out that they wouldn't because of the CDA, DMCA, and the 'safe harbour'. S/he then goes on to say:
(I know how LJ enforces things. I don't know how FanLib plans to.)
Which is well and good to know, but the fact that s/he had to pull information and add 2 and 2 from other sources other than the ToS merely proves my point: that you cannot determine intentions or 'evility' of a company by their ToS. You simply cannot. S/he's even had to pull information from outside the ToS to illustrate why s/he knows that LJ would never sue someone. But someone reading their ToS would not know this unless they were versed in the DMCA and what safe harbor means and she admits that she's worked 5 years in the industry. 98% have not.
The other issue that she had was with the difference between LJ's 'asking you to edit material' or FanLib having the right to 'remove your material without warning'.
Again, this is a cosmetic difference, and should definitely be a determining factor in whether or not you chose to host your fic there. But, it's not proof of shade, people. It's just how they'll handle fics that start to cause them problems. Apparently, there was a similar hooplah over ff.net when people found their fics suddenly gone... But again, this isn't unique. Myspace has this. We agree to this all the time. I count count how many times I logged on to Myspace to find a picture in my profile removed. Of course, they sent me an email saying why, which was nice of them, but they let it be known that they didn't have to even do that.
The reason why I make this addendum is because even now, people are pointing to her post as proof of Evility. They're practically saying "See? FanLib's ToS isn't the same as LJ's! EVIL!!!!" And, of course, that's a fallacy. LJ's ToS is different because: a) they're a different service and have different needs and b) they have other protections afforded to them from other documentations that are not provided by their ToS or even really mentioned. Regardless, their ToS acts like everyone else's ToS - THEIR PROTECTION. Not yours.
The ToS proves only that FanLib isn't the best place to host your fics and you shouldn't sign up for it. It proves nothing else. No evil plot, no dastardly deeds (tho' I do think there's something shady going on in the Publishing/screenplay/scriptwriting world... but it's not because of any I see in FanLib's ToS)
The point of this post wasn't to go tit-for-tat on LJs ToS versus FanLib's ToS. It was to prove that their ToS is pretty standard (it is) and nothing too unusual (it isn't).
That isn't to say I like 'em. I don't. Even if they were angels, there were no ulterior motives, and they didn't have the former president of RIAA as one of their top dogs, I would still prefer to host my fic here on LJ and other standard places where they're already at rather than host it at FanLib.
If this post has done anything, I hope it's gotten you to at least realise that you need to READ -- REALLY READ -- the ToS for everything: free webservice, Myspaces, Bulletin Boards, etc. Because that tells you where your protections END. [end addendum]