(no subject)

[heidi]

I am very upset, probably more than I should be, by (a) MPAA's letters and emails sent to fanfic website hosts where the ficcers use information culled from the MPAA ratings in rating their stories, (b) the fact that so many people seem to have no idea that a bunch of lawyers with IP and fandom experience have been discussing the issues right here over the last few weeks, and (c) the fact that FFN has decided to be insane and/or stupid about IP law *yet again* and has changed their ratings.

First, a quick FA note - FA has no plans to change our ratings scheme, because our ratings scheme is derived from the British Board of Film Classification as well as the Canadian, Australian and Motion Picture boards, and doesn't mesh 100% with any of them. We have talked about adding a "15" rating, and if we do so, it'll be when our new fic archive system goes live, ideally this summer.

Here are a few of my problems with the MPAA's letters:
1. They claim that they have taken action against other infringers, but the problem for *them* is that they have not, in the last 10+ years, taken action against other alleged infringers who have used the marks they claim ownership in for (1) noncommercial purposes, or for (2) written works in general. I've said elsewhere that I can see this being problematic for vidders, who should probably say that "the motion picture(a) contained in this vid were rated ___ by the MPAA", with a link to IMDB or something else. The reason this is a problem for the MPAA is because a trademark owner can lose its rights to a mark for a certain category of goods or services under the doctrine of laches, without losing all its rights to said mark for ALL goods & services. Or it's possible that they never owned the mark for certain goods & services in the first place.

2. The MPAA letter notes that they are the "owner" of certain ratings marks, but they never say that they are the *exclusive* owner of those marks. In other words, there may be other entitites who can claim ownership in those marks as well. It's sort of like APPLE Computers and APPLE Records - they can co-exist in this world, even though the primary word in each mark is identical. Further, they probably only own the marks for *motion picture certification services*, per their trademark registrations. A mark can only be registered for specific goods and services. The goods and services listed will establish the scope of the applicant's rights in the relevant mark. In other words, noncommercial fanfiction writings are outside the scope of the MPAA's rights in the relevant mark. If they have no rights in the mark, they can't enforce anything, because they have *nothing* to enforce. Here's what the Trademark Manual on Examinaiton Procesure has to say about the recitation of goods/services:

Ordinarily it is only necessary to indicate general kinds of goods and services, such as food, agricultural commodities, electrical products, textile materials, printed material, or insurance agency services, machinery repair, restaurant services. However, if the certification program itself is limited to specific goods or services, for example, wine, wood doors, bakery machinery, then the identification in the application should be more specific.

I'm going to wrap this section up by quoting Judge Posner in the Ty Beanie Babies case:

Although there is a social cost when a mark becomes generic -- the trademark owner has to invest in a new trademark to identify his brand -- there is also a social benefit, namely an addition to ordinary language. An interpretation of antidilution law as arming trademark owners to enjoin uses of their mark that, while not confusing, threaten to render the mark generic may therefore not be in the public interest.

Guys, please, if you get a letter from the MPAA, don't capitulate before talking it over with an attorney who actually has worked on IP law cases before. I know letters from lawyers can be very scary. But the thing is, cease & desist letters aren't written by people with your best interests in mind, and on occasion, they may just not really state the full extent of the legal issues at play. IP and trademark law is a very precise area for arguments, and a random real estate or PI or healthcare lawyer won't necessarily understand the specifics of it, especially in a certification mark situation.

And most importantly, do not panic.

---

ETA:
I just got an email from a FAPer asking:

Fanfiction.net has already changed their ratings to the copyright-free ones used for gaming. I have a link to that somewhere, but since y'all have such a huge website, you're probably already aware of all of this. I just want to know if I need to go back and re-rate all of my chapters, or if they'll be automatically changed as they were on ff.net? Thanks!

And here's what I replied:
FFN has not changed to copyright-free anything. The MPAA ratings are not copyrighted, they are trademarked, and the gaming industry owns trademarks in and to their ratings as well. You can see their informational page at http://www.esrb.org/esrbratings_guide.asp and an example of their "T" rating at http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=75227207 - nowhere do they give the right to just anyone to use them. If FFN fears getting into trouble with the MPAA, then FFN should fear just as much getting into trouble with the ESRB.

Anyone know what FFN is on? Or where this rumor re the ESRB got started?

ETA again.
Thanks to ancarett who discovered that fanficratings.com *is* owned by Xing of FFN, and it was registered in late February, about a week after likebunnies got her C&D.

Comments

[shezan.livejournal.com]

I would like to state here that I MASSIVELY admire your cool and clarity in this. Impressive!

[heidi8.livejournal.com]

Thanks.

: facepalm

: facepalm

: facepalm

Feel like doing a PSA on the fanfic recs list if this crap comes up?

[shezan.livejournal.com]

What's "doing a PSA"?

(Sorry for general cluelessness. Sometimes fandom life is a bit like taking a dip into Niagara Falls...)

[heidi8.livejournal.com]

Public service announcement, ie let people know not to be panicky t00bs.

[likebunnies.livejournal.com]

I go back to work and lose track of everything! What has happened that I missed? Did others get letters or are people just going crazy? I know several sites in fandoms I dabble in have gone off the deep end about this and I keep telling them to not do that until they have to. They don't listen, though.

[heidi8.livejournal.com]

Does anyone read ChillingEffects? Would reading this calm anyone down?

[plaidphoenix.livejournal.com]

I'm not a lawyer, so I won't get into lawyer type stuff except to say Bravo! for explaining things calmly and cooly.

Now I'm going to have to check all my stuff on FFN to see if the new ratings corelate to the ones I chose before they didn't let me know they were switching.

[ancarett]

FFN has taken its rating system from Fiction Ratings which requires registration to use their system. Fiiiiishy?:

http://www.fictionratings.com/

[heidi8.livejournal.com]

Domain Name: FICTIONRATINGS.COM
Registrar: TUCOWS INC.
Whois Server: whois.opensrs.net
Referral URL: http://domainhelp.tucows.com
Name Server: NS1.EASYDNS.COM
Name Server: NS2.EASYDNS.COM
Name Server: REMOTE1.EASYDNS.COM
Name Server: REMOTE2.EASYDNS.COM
Status: REGISTRAR-LOCK
Updated Date: 21-feb-2005
Creation Date: 21-feb-2005
Expiration Date: 21-feb-2006

Not sure what to make of any of this...

[ancarett]

Whois info for, fictionratings.com:

Registrant:
FictionPress LLC
1005 E. Las Tunas Blvd, #207
San Gabriel, CA 91776
US

Domain name: FICTIONRATINGS.COM

Administrative Contact:
Li, Xing xing@mac.com
1005 E. Las Tunas Blvd, #207
San Gabriel, CA 91776
US
+1.6267370410
Technical Contact:
Li, Xing xing@mac.com
1005 E. Las Tunas Blvd, #207
San Gabriel, CA 91776
US
+1.6267370410


Registration Service Provider:
xing@mac.com



Registrar of Record: TUCOWS, INC.
Record last updated on 21-Feb-2005.
Record expires on 21-Feb-2006.
Record created on 21-Feb-2005.

Domain servers in listed order:
NS1.EASYDNS.COM 216.220.40.243
NS2.EASYDNS.COM 205.210.42.20
REMOTE1.EASYDNS.COM 64.39.29.212
REMOTE2.EASYDNS.COM 212.100.224.80


Domain status: REGISTRAR-LOCK

[heidi8.livejournal.com]

Well, that answers that. It's their own scheme, they just want to be all propritary about it. Not that that's a bad thing, but it's a little sneaky.

[ancarett]

I agree -- I find it disappointing that they weren't open with that information, especially as they want everyone who uses this system to register with their rating system site's Terms of Service. Why? I just don't get it.

[lizardlaugh.livejournal.com]

I figured the MPAA didn't have a leg to stand on here, however... it is extremely easy to get intimidated here, and not just because lawyers write scary sounding letters. Consult with an attorney? Well, this is a hobby. It doesn't pay the bills. For most archivists, is it worth the expense of legal representation and a potential court case? Probably not, even if it gets thrown out of court, you've still got to pay your lawyer. If it does go to court, well, that's expensive.

[heidi8.livejournal.com]

For most archivists, is it worth the expense of legal representation and a potential court case? Probably not, even if it gets thrown out of court, you've still got to pay your lawyer. If it does go to court, well, that's expensive.

But that's what legal clinics exist for. That's why ChillingEffects.org was started. That's one of the things that fandom_lawyers has to offer. And the EFF is also very helpful on things like this. Maybe fandom needs a primer on free legal services?

[lizardlaugh.livejournal.com]

Hmmm, I think you are right. I wouldn't have known about any of that.

I don't like ratings to begin with because no where else will you see text rated. I've never been carded in a bookstore or library. I see how ratings are useful, I just think that (aside from the MPAA nonsense) they open us up to more scrutiny.

[ancarett]

Maybe fandom needs a primer on free legal services?

That's not a bad idea, actually -- if it were posted over at the community and put into memories, it would be available for easy reference.

[gorgeousnerd]

I find the entire situation really odd. Why would the MPAA pick on fandom sites about the rating system? That's not anything I would have ever guessed to have any legal implications. In any case, it's good that you've shown that they really have no case, and I hope everything turns out well for whomever may have problems.

Desist letter

[(Anonymous)]

Has anyone pinned down if the letter was legitimate? Has the person who got the letter contacted the MPAA to see if it sent the letter? I've seen comments about how "If it was a hoax it would have come out by now," but nothing that states that the MPAA itself has commented on the legitimacy of the desist order. Just wanted a firm yes or no on this element. Interesting discussion.

[cleverthylacine]

FFN has been on crack ever since they decided to use 'honouring 9/11' as an excuse to change their TOS and drop a lot of bombs on people (huh, maybe that was why).

I know that the reason I stopped using the ratings and took them off LW was that I never liked them.

[no-remorse.livejournal.com]

I thought that one line someone uttered in that fandom_lawyers post worried me. It was something along the line that the MPAA will continue to bully everyone with their C&Ds until one person refuses to be bullied. Considering that they have lawyers and money and resources and commercial interests and we don't that might take a very long time.

[heidi8.livejournal.com]

We don't, but we do have ChillingEffects.org, the EFF, free legal clinics that specialize in IP issues, and fandom_lawyers. If someone would just *talk* with one of those entities, then post about it, it would go a long way to stopping people capitulating over nothing.

[flyby.livejournal.com]

::thumbs up:: I use R-16 rather than NC-17 for my fics, but that's mostly due to personal opinion - since 16 is the age of consent I don't see why sexual content has to be restricted to a higher age group. Also, the vast majority of fanfic that's given NC-17 ratings actually falls far below the standard of graphic/explicitness that gets a film an NC-17 or (18/R-18 over here) rating.

[malsperanza.livejournal.com]

Does anyone know how many C&Ds the MPAA has sent out to fanfic sites and authors? The whole thing seems a bit ludicrous to me--no one can mistake a written text for a movie, so the tarnishment seems dubious at best. And surely the cat has been out of this particular bag for many years? I mean, are they going to try to police every blogger in Cyberspace?

Are any of the law-school clinics with an interest in Internet & IP stuff getting involved? Stanford or Berkman?

[alexandramuses.livejournal.com]

*headdesk*

Not much else to say that'd be intelligent, is there?

[pelirroja-ljc.livejournal.com]

Seems like FA is safe unless the Canadians, Brits, and Aussie's decide to collectively gang up on you. In any case, this is what one of my sites is doing just not to have to deal with this crap. A group of us came up with HP oriented ratings. Anyone is free to use them if they want, modify them, whatever.

http://www.livejournal.com/users/pelirroja_ljc/77604.html?view=222244#t222244

http://www.ravenclaw.us/efiction/index.php