(no subject)

[heidi]

Required reading for the HP fandom, these days.

Especially you, tabithajones! She says, btw, that her 1997 article is outdated. Can you squee?

Comments

[ex-ajhalluk585.livejournal.com]

Well, I've posted my comments in the forum. I personally agree that the corporations would be stupid to sue slashers, and would be very far from certain to win if they did, but there's nothing like the power of a bad idea whose time has come, and populist politicians, threats to children, and the Evil Internet Out There are all powerful ingredients in a nasty potions mix.

But the other issue I'd like to soap box on is the appalling European Court judgment in relation to Arsenal supporters club merchandise. The court threw out the finding of the English judge that the purpose of a scarf with "Arsenal" on was not to act as a badge of origin of the scarf, but as a badge of allegiance with the club (and that therefore plainly "unofficial" Arsenal merchandise which had been being sold at the club gates over a twenty year period by the same trader could not now be prevented by Arsenal having got up off its - um - backside and registered a whole bunch of trade marks including (of course) the club name). They said that to infringe use did not have to be "in a trade mark sense" but simply had to be the use of the registered sign for goods or services not those of the trade mark proprietor. It seems to me that a registration for Class 16, stationery, and TM owners can pretty much prevent adverse comment provided that the argument can be made that use of the mark is "in the course of trade". Unfortunately, "course of trade" includes "any business or profession" so while it shouldn't be a threat to the purely amateur site, it could be levelled at the ISPs (no common carrier defence - Godfrey v. Demon) and has I believe in the past been used in respect of political parties and charities as regards their trading activities (though would value cites here). No idea about whether advertising supported sites could be alleged to be trading. Anyway, it's a terrible decision and should be opposed on all fronts.

[ex-ajhalluk585.livejournal.com]

Sorry - not at my most coherent there. To clarify, the English judge found for the trader, a finding I applauded, the European Court overturned Laddie and found against him.

[heidi8.livejournal.com]

That sort of decision would never make it in the US because of the laches issue - does it not work the same way in the EC? Here, if you didn't take action for 20 years, and you *knew* about the infringer (or even should have known) you wouldn't be able to make that sort of a claim. One vaguely recent and easily googleable example:

Hubbard Feeds Inc. (Hubbard) owns an incontestable trademark for the configuration of a half-barrel container used to package its animal block feed products. When Hubbard realized Animal Feed Supplement Inc. (AFS) continued to sell animal block feed in half-barrel containers after expiration of a license between the parties, it waited over four years before bringing suit. The U.S. Court of Appeals for the Eighth Circuit held that four years is sufficient for laches and that Hubbard was not likely to succeed on its infringement claim because: (1) it presented no evidence of actual confusion, (2) AFS places a large label on its barrels, and (3) paints them a different color. Hubbard Feeds Inc. v. Animal Feed Supplement Inc., 182 F.3d 598 (8th Cir. 1999).

[ex-ajhalluk585.livejournal.com]

No, laches almost never works in English trade mark law, and, in fact, in a 15 year long career in intellectual property law I can hardly ever remember it being raised as a defence. It might work in the law of passing off, but four years would be way too short.

[heidi8.livejournal.com]

It's 'cause your country is older :)

Actually, that's really interesting to know! Cool! (and no wonder it wouldn't likely be factoring into Neil Blair's take on HP fansites...)

[frances-potter.livejournal.com]

Thanks for the link, Heidi, it was very interesting to read. I wonder what the views of places like Yahoo might be if they were threatened legally for carrying slash on their servers?

[heidi8.livejournal.com]

They're located in Sunnyvale, California - I don't know what that city's laws on discrimination based on sexual orientation are, though.

John?

[ex-ajhalluk585.livejournal.com]

Well, presumably they wouldn't be threatened for carrying slash explicitly, they would be threatened for carrying material in breach of trade mark/copyright and the least meritorious examples would be cited as reasons why the total set of "infringements" could not be justified under any fair dealing usage. This would neatly sidestep the whole question of sexual orientation discrimination (which, incidently, definitely gives people no rights in the UK, if a cause of action can be brought there)

[hermorrine.livejournal.com]

Sunnydale is in the Bay Area (San Francisco for those that don't know), and that entire area is extremely liberal and queer-supportive, so I doubt that would be an issue.

[queerasjohn.livejournal.com]

That's my best answer, Heidster. :) AFAIK www.ageofconsent.org has some resources, but I don't at the moment have a comprehensive list. It's more a "places I'd be willing to live" sort of thing :D

--J

[tabithajones.livejournal.com]

*blinks* Wow. I'm thinking I need to email her.

[heidi8.livejournal.com]

You do that. Embrace your inner fangirl.

[rivkat.livejournal.com]

Sure, email away! Though I feel I've stepped into a conversation in the middle. I'm RivkaT@aol.com -- but there's really no need, if I've made you feel weird.

[heidi8.livejournal.com]

Aaaaaaaaaand you've found a way to see a variety of HP fandom responses to the recent Scotsman article. Just go onto my Friends page and read down it - or go right to the LJs of IvyBlossom, VanityFair, Kissaki, SnitchFiction and QueerAsJohn, where the posts and responses are interesting.

The laches defense comes into the HP fandom in a way that is less-than-obvious. Back in May, when FictionAlley.org was written up in the New York Times in an article that mentioned, with praise, one of the slash fics on our site, WB's shop got in touch with us about our becoming an affiliate of the WB Store. We did, and we've worked well with them ever since. I know that goes beyond laches, but it's a starting point in explaining the argument.

If it's ok, I'll be emailing (or even AIMing) you shortly (but after I go pick up my 3 year old...)

[rivkat.livejournal.com]

Great, I'll take a look at those pages. And that's neat news about FictionAlley.org. I have yet to use AIM successfully, but I try once in a while; I'm RivkaT, as you might have guessed.

[ex-ajhalluk585.livejournal.com]

That doesn't sound like laches, ma'am, that sounds like acquiescence.

We do have that in English law.