everything but the girl

I've been dealing this week with annoying dentistry, weirdly scheduled PTSA meetings, clients whose credit cards are not appreciated by the PTO website and the fun of trying to figure out what type of entity to be for INTA next year, and, of course, re-reading reviews of Philosopher's Stone that were posted in FictionAlley Park a year ago today (well, a year ago this month as some people saw it early) but I needed to take a few minutes today to address the SOPA act that's currently being debated* in committee in Congress, for clients, and in a post that's going up on FictionAlley this afternoon.

This is a slightly revised version of that post (Updated on November 17, 2011):

You may have seen this image on the internet today:

And you may wonder why a site like FictionAlley cares about an act designed to stop piracy; FictionAlley doesn't allow links to downloads of the Harry Potter books or films!

But the thing is, the "Stop Internet Piracy Act" is written in such a way that it gives any owner of any copyright, trademark right, right of publicity or other intellectual property rights the ability to shut down a site's ability to accept donations made via credit card companies, PayPal or Amazon, or bar a site from hosting Google or Groupon ads or being part of the WBShop or Amazon Affiliate programs just because they think that one icon, one User Profile, one piece of fanart, one fanvid or one fanfic infringes on their content - regardless of whether that story, icon, vid or art is transformative, or created pursuant to fair use.

"Fair use is a lawful use of copyright." That's what the Northern District of California said in Lenz v. Universal Music back in 2008. So much of what we do on fansites - from the discussions and reviews to art and fic and vids we host and link to - is fair use, but there's no Fair Use provision in SOPA.

"Think about this for a second: think how many bogus DMCA takedown notices are sent by copyright holders to take down content they don't like," writes TechDirt's Mike Masnick. "With this new bill, should it become law, those same copyright holders will be able to cut off advertising and payment processing to such sites. Without court review."

Donations are vital to fansites; if they can't accept financial support from users and visitors, many will not be able to keep the site online; it costs between $20 and $1000 per month for servers at fansites of various sizes. Ads are vital to other sites - Googleads, the BlogHer network, store associateships, etc.

If SOPA passes, and one copyright-holder who doesn't agree with the law of Fair Use complains to PayPal or Google or Amazon, it is likely that at least some sites will lose the ability to accept donations from users like you, and many will be unable to use ad revenue to keep the sites online.

And fandom-run sites are just a small portion of the internet, in the grand scheme of things. YouTube hosts fanvids, parodies and reviews, Tumblr and LiveJournal host every type of content that can be created, and Google links to everything. One person can choose to abuse the provisions of SOPA and damage each of those sites for everyone - or the sites themselves may curtail certain services, or limit what they allow people to share, discuss and distribute.

That's not an Internet that any of us would recognize.

If you live in the US, please send a letter to your Representative, or click here to visit the EFF's website and have an email automatically sent to your representative.

*Not the right word when only one of the six entities testifying before Congress is an Internet-purposed company!

ETA: More discussion here; this post is also on Tumblr.


Feel free to use any of this on your own LJ/DW/Blog and link back if you wish (but it's not necessary).

I've been dealing this week with annoying dentistry, weirdly scheduled PTSA meetings, clients whose credit cards are not appreciated by the PTO website and the fun of trying to figure out what type of entity to be for INTA next year, and, of course, re-reading reviews of Philosopher's Stone that were posted in FictionAlley Park a year ago today (well, a year ago this month as some people saw it early) but I needed to take a few minutes today to address the SOPA act that's currently being debated* in committee in Congress, for clients, and in a post that's going up on FictionAlley this afternoon.

This is a slightly revised version of that post:

You may have seen this image on the internet today:


And you may wonder why a site like FictionAlley cares about an act designed to stop piracy; FictionAlley doesn't allow links to downloads of the Harry Potter books or films!

But the thing is, the "Stop Internet Piracy Act" is written in such a way that it gives any owner of any copyright, trademark right, right of publicity or other intellectual property rights the ability to shut down a site's ability to accept donations made via credit card companies, PayPal or Amazon, or bar a site from hosting Google or Groupon ads or being part of the WBShop or Amazon Affiliate programs just because they think that one icon, one User Profile, one piece of fanart, one fanvid or one fanfic infringes on their content - regardless of whether that story, icon, vid or art is transformative, or created pursuant to fair use.

"Fair use is a lawful use of copyright." That's what the Northern District of California said in Lenz v. Universal Music back in 2008. So much of what we do on fansites - from the discussions and reviews to art and fic and vids we host and link to - is fair use, but there's no Fair Use provision in SOPA.

"Think about this for a second: think how many bogus DMCA takedown notices are sent by copyright holders to take down content they don't like," writes TechDirt's Mike Masnick. "With this new bill, should it become law, those same copyright holders will be able to cut off advertising and payment processing to such sites. Without court review."

If we can't accept donations from FictionAlley's users and visitors, we won't be able to keep the site online; it costs about $3000 per year to cover our servers, domain names and other related expenses, and we appreciate all the help you give us in covering those costs. If SOPA passes, and one copyright-holder who doesn't agree with the law of Fair Use complains to PayPal or Google or Amazon, we may lose the ability to accept donations from users like you.

And we're just a little site in the grand scheme of things. YouTube hosts fanvids, parodies and reviews, Tumblr and LiveJournal host every type of content that can be created, and Google links to everything. One person can choose to abuse the provisions of SOPA and damage each of those sites for everyone - or the sites themselves may curtail certain services, or limit what they allow people to share, discuss and distribute.

That's not an Internet that any of us would recognize.

If you live in the US, please send a letter to your Representative, or click here to visit the EFF's website and have an email automatically sent to your representative.

*Not the right word when only one of the six entities testifying before Congress is an Internet-purposed company!

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".

Supernatural and (omg what am I doing?) RPS!

Yes, you heard me. AI!RPS at that.

No! Don't run away! There's a reason I'm reccing it!

jlh has recently started posting a set-in-1962 Chris/Blake fic entitled Radio Friendly. Now, those of you who've read this LJ over the last x-number of years know that in my life, I've maybe watched one ep of AI. I only know who Chris and Blake are by reading the LJs of those on my flist who watched AI last year.

But I love stories set at the Brill building - I read my first one back in the 80s and it was a really bad, cheesy novel that I stole from my mom and clearly didn't understand all of, but since then, there's been the film Grace of My Heart and a few nonfiction articles, so it's a setup that I'm naturally drawn to, and it's jlh whose writing I generally enjoy, so sure I'll give this a try.

I'm reading this story as if it's an ebook, without giving much of any thought to the fact that it's actually RPS, and it's off to a terrific start! As jlh's author note says,

Radio Friendly is an AU set in 1962, when New York was the center of pop music and the Brill Building was where it all happened, when a group of talented songwriters and producers crafted perfect pop hits for artists whose every move was controlled by their label.

Basically, Blake and Chris are newly paired writing partners, and the story takes it from there. Even if you never read RPS, even if you never watch AI - this is a good story, and I recommend taking a peek at it.

And the SPN rec - Levels of Achievement by gwendolyngrace (Gen.). Dean Winchester vs the SAT's. Now, I love smart!Dean, and Gwen's done a wonderful job of showcasing this, in tandem with Dean's very mixed up sense of self-esteem and self-worth.

ETA And just after I posted this, sabaceanbabe posted the first part of a long-form Heroes fic that I just had to give a quick squee about because it presupposes a family-relationship theory that I love, regardless of whether it turns out to be Heroes-canon or not. Take a peek at Lord of the Rats.


In non-fiction news, I posted to fandom_lawyers this morning about an interesting article in the NY Times that quoted a VP at Viacom as saying, “Our audiences can creatively mash video from our content as much and as often as they like..." Analysis and discussion of mash, fair use, vidding etc. over on F_L, so please join in!

This is probably
Not what Alex wanted, but
It makes lawyers smile.

---

Discussion topic of the day: Someone posted the images shown ( here ) to HPfGU-OTChatter, so praetorianguard, gwendolyngrace and I started wondering if we could ask the artist to display the little people in the Gallery at Nimbus - 2003 without running afoul of copyright laws. praetorianguard and I both believe that the parody defenses would apply, as the little people do poke fun at both the merchandising of the HP books and the books themselves.

Then, we started talking about trademark. And LEGOs. And genuine fans engaging in commentary about the books by creating and photographing scenes LEGOs engage in interpersonal contact with other LEGOs, and similar commentary and occasionally satire in the form of recording images of HP action figures, similar to the way the courts have allowed parodies of and commentary about the BARBIE product via photos of the dolls in clothing never produced by Mattel.

So now I'm here, wondering whether it's possible to tarnish the VOLDEMORT mark with such artistic expression, even presuming there was a commercial motive twinned with the artistic expression (such as the sale of a book containing the images).

Lawyers o'the fandom? What sayeth you?

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...