(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.

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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

[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.