everything but the girl

I just posted here on fandom_lawyers about this case in which the Northern District of California stated that the Fair Use doctrine "permits limited use of copyright materials without the owner's permission."

A very important case for vidders, ficcers, wrockers, fanartists, teachers, librarians, academics, and basically anyone who creates transformative works of any type.

Well, I thought at least one part of the court's ruling was ( sparkly... )

ETA: Okay, this was really incongruous among all the SGA Is Cancelled and Devon Murray Isn't Coming to Dragon*Con misery on my flist. I don't even have a good LOLcat involving/invoking the court's ruling in the Universal case! But I'd love one!

This is a drive-by posting - I had my 20th high school reunion last night, and ahave two birthday things today (including Catie's 3rd birthday dinner tonight) but I've seen a lot of people on my flist really fretful this weekend about that article about "proposed" "Orphaned Works" legislation, and I'm going to recommend you read this BoingBoing post about it:

There is no such legislation before Congress (there was a bill in 2006, but it was never voted on; Marybeth Peters of the Copyright Office recently spoke before a subcommittee, but that's not a bill), and Simon is flat-out wrong about every concern he raises.

maradydd has an extensive smack-down of the claims in the article here and kynn does a bit of a "follow the money" behind Simon's sources here. Did you know that the person quoted and named as the Copyright Office's General Counsel hasn't held that job since circa 2006?

No actual legal advice in the above, or in the comments. Just an FYI.

Oh, and if this doesn't interest you, check out this article about how fannish behaviours and activities are becoming "glam".

This week, it came to my attention that in February, the Ninth Curcuit Court of Appeals, in Kelly v Arriba Soft Corp., held that under certain circumstances, it was illegal to link from one website to another. The court, not unreasonably, said that Ditto, the directory-site, could not use the fair use exception to justify links to "thumbnail" reproductions of copyrighted images. The court went further, though, and stated that a link to the full-sized image was not permitted if those images were "framed" by the search engine. In other words, while a direct link, like this link to a slightly inaccurate Financial Times article about the case, would be permitted because it would open the article in a new window or at least on a new screen, a link to the image (or an article, or a song) where the image was framed on the page would be a violation of fair use.

To date, various sites in or used by the fandom, including LJs and certain message boards that will remain nameless, have allowed IMG code links which frame pictures, within the context of a post, as avatars, etc. While I still believe that this case does not absolutely bar linking to a full-sized image within a debate, discussion, criticism or for educational purposes, it makes me very uncomfortable about some uses of avatars. Yes, the LOTR people have made pics available for use on websites; the Harry Potter site has done the same. But how should we now enforce linking to pics done by others without their say-so? I did it here, with those Babies pictures - which I am now off to make private until I get affirmative permission. You can presume in a quiz that if you take the code, it's ok, even if a pic is incorporated, but should be responsible if the pic wasn't used with permission in the first place? And what to do about avatars?

Edited to incorporate my thoughts on avatars, and on fanfiction:

I spent lunch rereading the case and the following issues jumped out at me:

The court says that the Ditto use of thumbnails of the full scale images were fair use. The court made this determination because the small change in making the full scale image into a low resolution image was sufficiently transfortmative, and because they served "an entirely different function than" the original image. Not only does this put my mind more at least regarding our avatars, which are either a segment of a larger pic or a low-resolution version of a pic, it is actually excellent caselaw for the presumption that fanfiction is fair use. In other words, if squashing an image makes fair use out of what would otherwise be a copy, then that holding supports an argument that taking a character (or thirty) or a few lines (or paragraphs) from a novel and transforming those lines and/or characters into a fanfic is fair use (for copyright perspective; trademarks are still something else entirely). Certainly, taking a character and putting him or her into an original story is transformative, and this case implies that such transormative action would rise to the standard required for a fair use holding. Fanfiction "serves a different function" than the original work.

The most wonderful thing in the ruling, from a purely conceptual point of view, is that the court found that it was reasonable for Ditto to take the whole of each of the images in light of the way that Ditto used the images. It was necessary for [Ditto] to copy the entire image to allow users to recognize the image and decide whether to pursue more information about the image or the originating web site. The potential impact of that determination on copyright law is staggaring. It also may place a limitation on Napster's holding regarding its database, or on the issue of whether putting a low-quality version of a whole song on a website (where it links to an official site, or a place to purchase the song or album) is a violation of Napster or fair use.
Methinks I like this case, and I want to do more reading about its implications.

Tabs? What say you?

All personal musings...no reflection on my office or FA intended...