Same Shit, Different Day
Apr. 19th, 2003 08:50 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
maygraWhen I first got on line and stumbled over the thing we now ubiquitously call "media fandom", the huge brouhaha at the time in HL fandom was a disagreement some fans had with a single individual who had compiled a massive amount of links, trying to bring a central location to all of the HL sites from archives to script transcripts sites and everything in between, including a lot of people's individual sites and homepages.
Now, while online fandom had come into being and was steadily growing, there was still a lot of nervousness by fans who came in from off-line fandom who had been involved in or witnessed any number of unpleasant examples of TPTB flexing their muscle a bit. Or who had only heard about them -- friend of a friend of a friend was C&D'd and dire consequences awaited them.
It was scary stuff. It still is. Not so much because of the (mostly) idle threat of having your site (or your press) shut down, or the fear of actual court litigation, but in terms of exposure and potential liability, most fans reacted with a certain amount of skittishness. Being sued is absolutely a possibility. It doesn't seem to happen very often -- even for people who are C&D'd in the case of Trademark violation. (Which, from a legal standpoint, is a highly tetchy issue (because unlike copyright -- in the abstract -- Trademark *does* have to be defended over and over, or you do lose your right to sole use of the Trademark. Copyright cannot be lost -- however, it is possible for an artist to lose the sole exclusive right to make a profit on their work in some cases -- it's a sticky wicket to be sure.) However, (and any legal eagles feel free to correct me,) violation of copyright is a civil action, not a criminal one. Financial damages can be assessed against an infringer, but actual jail time isn't really an issue.
Back to the King of Links. A lot of people objected to this, because he would include links without permission. And upon being requested to remove a link, he would refuse. Threats were made, arguments were voiced, flame wars erupted, and the King of Links held fast. There was nothing, nothing anyone could legally do to enforce their will on him. He baited and dared people to take him to court. He posted his own legal defenses comments on the then very sketchy approach to copyright, privacy and the internet.
It went on for months. Eventually people lost interest, or he did, and as far as I know, the link page is still there but most, if not all, the links are worthless. I doubt seriously that anyone ever took him up on his invitation to court. And shortly thereafter, Geocities appeared on the scene and a few other free hosting services and on-line fandom pretty much exploded across the internet.
But his argument then boiled down to something that still holds true. If you put it on the net, and someone can find it, be it a homepage, a picture, artwork, vids, stories or your personal resume, you have pretty much lost the ability to maintain control over that bit of data You can put up all the warnings and pleas you like, you can password protect your site, you can make it unsearchable by search engines and robots, but if one person posts that picture elsewhere, or that story, or that password…you've lost the battle. Oh, you can take your stuff and move it. You can scream and shout and stomp your feet and threaten to have them TOS'd by their ISP's. You can defame their name from here until kingdom come. But in reality, your methods of control are limited and rarely infallible.
To some extent, however, you can rely on the integrity of other fans to respect what boundaries you set. But that only goes so far. One fan who has no respect for anyone's boundaries, whose focus is entirely fixated on what they want and how best to get it, is all it takes to undo the good intentions of a thousand other fans. It doesn’t matter if you are right or wrong. The deed is done.
And in the nether gray world of fanfiction, fan art and fan vids, of thousands of faceless, pseudonymed participants in the hundred-plus areas of interest that is online fandom, those few people make all the difference. You can't trust them. You can't reason with them. You can't protect yourself from them and still participate on every level in every area you would like to. You can't depend on them to use common sense or common courtesy in dealing with material that is already dancing the thin wire between illegality and fair-use. They will take your work and post it elsewhere. They will take your stories and put their names on them and cry foul when you cry plagiarism -- because you, of course, don't have any legal claim to the source material either, so how can it be yours?
You cannot expect that everyone will share your ethical boundaries. While there are most certainly a lot of people who will join you in the sandbox and happily share your toys with you, there are those who will take your toys and run away with them.
And there is not, realistically, one damn thing you can do about it, except to do your very best to minimize your risk.
For most of my fannish life, my concerns have been primarily focused on not bringing enough attention to myself (or my fandom) to make the TPTB look around and notice. They seem, for the most part, willing and able to ignore me and mine as long as I don't try to make them look like idiots or fools, or try to somehow capitalize monetarily from my ill-gotten gains and hours of source material.
But the new boogey-man isn't really Fox networks, or Mutant Enemy, or George Lucas, or Anne Rice. And this boogey-man really isn't new. He/she is just an email address away, or on the next LJ or one of the people on your favorite mailing lists. He/she really isn't so much out to get *you* as he/she is out for him/herself. The boogey-man is the fan right next to you.
Some people call this boogey-man a sense of entitlement -- I've used the term myself. But even in doing so, I'm admitting that there are people out there whose ethical choices don't mesh with mine, whose rationale is so far afield from mine I can't even fathom it. We have nothing in common save for the one thing above all -- fandom.
So, the choices presented to any fan are pretty limited. And honestly, as in the movie Wargames, the only real way to win is not to play.
But if you play, be very careful about what you risk. The actual risk of losing control of your fannish output, of your creativity is pretty small in the grand percentages of these things, but it only has to happen once for you to feel violated and betrayed. If you don't want people to steal your vids, don't leave them up on your servers for long if at all. Password your site. If you don't want your stories to be taken and plagiarized don't archive them from here to everywhere. Change your URLS frequently. Be paranoid.
Or not. Raise the hue and cry if you are violated and pray that some of your basic ethical standards will be recognized. Defy the odds, and leave yourself wide open, your work available, and your creative output undaunted.
Or find someplace in the middle. Know that it can happen to you. Know that while Public Domain really isn't a status associated with every bit of data out on the internet, public access is. Trust your friends, but know that not everyone on the internet is your friend or even friendly.
And when some asshat claims that because you're already infringing on copyright, that you have no control and no right to control your output or what happens to it -- be aware that he/she is correct. You have no *legal* right to claim ownership (you know, until some fan actually gets taken to court and *wins*.)
Fandom has no Geneva Convention. Fandom has no SEC dictate or court appointed jurisdiction to enforce ethical standards. There is no fandom police. Fandom has…fans.
And lest you think I'm fortelling doom in the manner of the three witches of Macbeth -- I'm not. I have some six sites with fiction, artwork, archives, journals, blogs, rants, raves, and resumes scattered about on the World Wide Web. One of them is passworded -- with a flimsy system at best meant primarily to ensure people read the disclaimers and understand what they are about to see and read, as opposed to try and protect myself from TPTB or protect myself from content theft by other fans. And the site is virtually mirrored elsewhere with no password. I rarely allow archiving, but I do allow links. I even occasionally change those links. I have no idea, really, how many people hit my sites in any given month. For all I know, no one is and few are reading. I don't make vids, but if I did, I probably wouldn't have them on the net, or if I did, I would have them password protected (and that really would be more in response to the RIAA's rather aggressive hunt & prosecution of copyright violaters of music and lyrics, than to save myself from TPTB of major television studios.)
I don't think fandom is an evil place. I don't think the majority of fans are anything but fairly reasonable, rational, and for the most part, respectful of the rights of ownership and fannish creativity as it applies to their fellow fen (even when they may be ripping said fan a new one, or disemboweling their latest story.)
But I do think some fans, possibly even the majority of fans, are being dangerously naïve if they think that all fen are created equal, or that the only threat to their continued enjoyment is TPTB.
The Powers That Be don't need to hunt us down or look for us. We have fellow fen who quite blithely point out our caves and cliff-dwellings, slums and condos with prideful glee at how clever we all are. Who mistakenly believe that physical, tangible proof of the adoration of fans will somehow be received gratefully and thrillingly by those same powers.
There are fans who view fannish output as common property, who believe they have the absolute right to take anything they find on the internet and put it toward their own use. They don't care what you think, what your friends think, or what other fans think. To them, your fannish output is merely an extension of the source material and since the use of that is already in legal question, they are in no further violation, or in any worse violation, of claiming or using or posting your work than they are of using the original source material. If you aren't respecting that very valid legal right, why should they be in any way concerned with your incredibly nebulous and grey right to your own derivative works?
Be really clear: I don't agree with this stance. I am a firm believer that fans have to police themselves, that it is possibly more important to respect one another and extend common courtesy if only because there is no other recourse once that unspoken agreement is breached. Someone else said it far better, (SilviaKundera said it best: " If you alienate the people who go about creating these things you love... you won't have any more. It's not terribly complicated logic."
At the same time, it's easy to forget that in the fast paced life we know as on-line fandom. It's easy to drop your guard. It's easy to forget people like the King of Links. Today's battleground is the next minute's old news. So, the pattern repeats itself.
Over and over.
And at the root of it all, is the same thorny problem: fans do what fans want to get more of what they want, when and how they want it. It's true of the fic writers posting to a half dozen lists and equally as many archives. It true of the screen cappers and the vidders and the artists. They want to create, they want to share, they want to hear back from the people enjoying the fruits of their labors or there would be no real reason to make any of it available in the public access forum that is the internet. The same is true of those whose "lack of respect" drives so many of us batshit or into temporary exile. They want to create, to be seen, to share, to get accolades. The motives are the same.
But the devil, as they say, is in the details. Your sense of entitlement to create or enjoy derivative works in the way you like is not a singly-defined, universally accepted standard.
Keep it in mind the next time you put something of "yours" out there for "them".
Now, while online fandom had come into being and was steadily growing, there was still a lot of nervousness by fans who came in from off-line fandom who had been involved in or witnessed any number of unpleasant examples of TPTB flexing their muscle a bit. Or who had only heard about them -- friend of a friend of a friend was C&D'd and dire consequences awaited them.
It was scary stuff. It still is. Not so much because of the (mostly) idle threat of having your site (or your press) shut down, or the fear of actual court litigation, but in terms of exposure and potential liability, most fans reacted with a certain amount of skittishness. Being sued is absolutely a possibility. It doesn't seem to happen very often -- even for people who are C&D'd in the case of Trademark violation. (Which, from a legal standpoint, is a highly tetchy issue (because unlike copyright -- in the abstract -- Trademark *does* have to be defended over and over, or you do lose your right to sole use of the Trademark. Copyright cannot be lost -- however, it is possible for an artist to lose the sole exclusive right to make a profit on their work in some cases -- it's a sticky wicket to be sure.) However, (and any legal eagles feel free to correct me,) violation of copyright is a civil action, not a criminal one. Financial damages can be assessed against an infringer, but actual jail time isn't really an issue.
Back to the King of Links. A lot of people objected to this, because he would include links without permission. And upon being requested to remove a link, he would refuse. Threats were made, arguments were voiced, flame wars erupted, and the King of Links held fast. There was nothing, nothing anyone could legally do to enforce their will on him. He baited and dared people to take him to court. He posted his own legal defenses comments on the then very sketchy approach to copyright, privacy and the internet.
It went on for months. Eventually people lost interest, or he did, and as far as I know, the link page is still there but most, if not all, the links are worthless. I doubt seriously that anyone ever took him up on his invitation to court. And shortly thereafter, Geocities appeared on the scene and a few other free hosting services and on-line fandom pretty much exploded across the internet.
But his argument then boiled down to something that still holds true. If you put it on the net, and someone can find it, be it a homepage, a picture, artwork, vids, stories or your personal resume, you have pretty much lost the ability to maintain control over that bit of data You can put up all the warnings and pleas you like, you can password protect your site, you can make it unsearchable by search engines and robots, but if one person posts that picture elsewhere, or that story, or that password…you've lost the battle. Oh, you can take your stuff and move it. You can scream and shout and stomp your feet and threaten to have them TOS'd by their ISP's. You can defame their name from here until kingdom come. But in reality, your methods of control are limited and rarely infallible.
To some extent, however, you can rely on the integrity of other fans to respect what boundaries you set. But that only goes so far. One fan who has no respect for anyone's boundaries, whose focus is entirely fixated on what they want and how best to get it, is all it takes to undo the good intentions of a thousand other fans. It doesn’t matter if you are right or wrong. The deed is done.
And in the nether gray world of fanfiction, fan art and fan vids, of thousands of faceless, pseudonymed participants in the hundred-plus areas of interest that is online fandom, those few people make all the difference. You can't trust them. You can't reason with them. You can't protect yourself from them and still participate on every level in every area you would like to. You can't depend on them to use common sense or common courtesy in dealing with material that is already dancing the thin wire between illegality and fair-use. They will take your work and post it elsewhere. They will take your stories and put their names on them and cry foul when you cry plagiarism -- because you, of course, don't have any legal claim to the source material either, so how can it be yours?
You cannot expect that everyone will share your ethical boundaries. While there are most certainly a lot of people who will join you in the sandbox and happily share your toys with you, there are those who will take your toys and run away with them.
And there is not, realistically, one damn thing you can do about it, except to do your very best to minimize your risk.
For most of my fannish life, my concerns have been primarily focused on not bringing enough attention to myself (or my fandom) to make the TPTB look around and notice. They seem, for the most part, willing and able to ignore me and mine as long as I don't try to make them look like idiots or fools, or try to somehow capitalize monetarily from my ill-gotten gains and hours of source material.
But the new boogey-man isn't really Fox networks, or Mutant Enemy, or George Lucas, or Anne Rice. And this boogey-man really isn't new. He/she is just an email address away, or on the next LJ or one of the people on your favorite mailing lists. He/she really isn't so much out to get *you* as he/she is out for him/herself. The boogey-man is the fan right next to you.
Some people call this boogey-man a sense of entitlement -- I've used the term myself. But even in doing so, I'm admitting that there are people out there whose ethical choices don't mesh with mine, whose rationale is so far afield from mine I can't even fathom it. We have nothing in common save for the one thing above all -- fandom.
So, the choices presented to any fan are pretty limited. And honestly, as in the movie Wargames, the only real way to win is not to play.
But if you play, be very careful about what you risk. The actual risk of losing control of your fannish output, of your creativity is pretty small in the grand percentages of these things, but it only has to happen once for you to feel violated and betrayed. If you don't want people to steal your vids, don't leave them up on your servers for long if at all. Password your site. If you don't want your stories to be taken and plagiarized don't archive them from here to everywhere. Change your URLS frequently. Be paranoid.
Or not. Raise the hue and cry if you are violated and pray that some of your basic ethical standards will be recognized. Defy the odds, and leave yourself wide open, your work available, and your creative output undaunted.
Or find someplace in the middle. Know that it can happen to you. Know that while Public Domain really isn't a status associated with every bit of data out on the internet, public access is. Trust your friends, but know that not everyone on the internet is your friend or even friendly.
And when some asshat claims that because you're already infringing on copyright, that you have no control and no right to control your output or what happens to it -- be aware that he/she is correct. You have no *legal* right to claim ownership (you know, until some fan actually gets taken to court and *wins*.)
Fandom has no Geneva Convention. Fandom has no SEC dictate or court appointed jurisdiction to enforce ethical standards. There is no fandom police. Fandom has…fans.
And lest you think I'm fortelling doom in the manner of the three witches of Macbeth -- I'm not. I have some six sites with fiction, artwork, archives, journals, blogs, rants, raves, and resumes scattered about on the World Wide Web. One of them is passworded -- with a flimsy system at best meant primarily to ensure people read the disclaimers and understand what they are about to see and read, as opposed to try and protect myself from TPTB or protect myself from content theft by other fans. And the site is virtually mirrored elsewhere with no password. I rarely allow archiving, but I do allow links. I even occasionally change those links. I have no idea, really, how many people hit my sites in any given month. For all I know, no one is and few are reading. I don't make vids, but if I did, I probably wouldn't have them on the net, or if I did, I would have them password protected (and that really would be more in response to the RIAA's rather aggressive hunt & prosecution of copyright violaters of music and lyrics, than to save myself from TPTB of major television studios.)
I don't think fandom is an evil place. I don't think the majority of fans are anything but fairly reasonable, rational, and for the most part, respectful of the rights of ownership and fannish creativity as it applies to their fellow fen (even when they may be ripping said fan a new one, or disemboweling their latest story.)
But I do think some fans, possibly even the majority of fans, are being dangerously naïve if they think that all fen are created equal, or that the only threat to their continued enjoyment is TPTB.
The Powers That Be don't need to hunt us down or look for us. We have fellow fen who quite blithely point out our caves and cliff-dwellings, slums and condos with prideful glee at how clever we all are. Who mistakenly believe that physical, tangible proof of the adoration of fans will somehow be received gratefully and thrillingly by those same powers.
There are fans who view fannish output as common property, who believe they have the absolute right to take anything they find on the internet and put it toward their own use. They don't care what you think, what your friends think, or what other fans think. To them, your fannish output is merely an extension of the source material and since the use of that is already in legal question, they are in no further violation, or in any worse violation, of claiming or using or posting your work than they are of using the original source material. If you aren't respecting that very valid legal right, why should they be in any way concerned with your incredibly nebulous and grey right to your own derivative works?
Be really clear: I don't agree with this stance. I am a firm believer that fans have to police themselves, that it is possibly more important to respect one another and extend common courtesy if only because there is no other recourse once that unspoken agreement is breached. Someone else said it far better, (SilviaKundera said it best: " If you alienate the people who go about creating these things you love... you won't have any more. It's not terribly complicated logic."
At the same time, it's easy to forget that in the fast paced life we know as on-line fandom. It's easy to drop your guard. It's easy to forget people like the King of Links. Today's battleground is the next minute's old news. So, the pattern repeats itself.
Over and over.
And at the root of it all, is the same thorny problem: fans do what fans want to get more of what they want, when and how they want it. It's true of the fic writers posting to a half dozen lists and equally as many archives. It true of the screen cappers and the vidders and the artists. They want to create, they want to share, they want to hear back from the people enjoying the fruits of their labors or there would be no real reason to make any of it available in the public access forum that is the internet. The same is true of those whose "lack of respect" drives so many of us batshit or into temporary exile. They want to create, to be seen, to share, to get accolades. The motives are the same.
But the devil, as they say, is in the details. Your sense of entitlement to create or enjoy derivative works in the way you like is not a singly-defined, universally accepted standard.
Keep it in mind the next time you put something of "yours" out there for "them".
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
Re: Just to clarify
Date: 2003-04-20 02:35 pm (UTC)Ah, yeah, sorry. Once a lawyer sees something that she thinks isn't quite 100% accurate, it's an irresistable invitation for quibbling. *g*
No disagreement that fans, all of us in the Western world anyway, swim in murky waters when it comes to copyright. And you're right that so far there has not been a test case, or at least none in any jurisdiction of which I'm aware.
I think that in the UK it's not likely that a copyright holder would put its copyright to the test vis a vis fannish derivative works because in monetary terms is just isn't worth it. Part of this is because of the costs rules in the English & Welsh jurisdiction means that even if they win they're likely to be substantially out of pocket. Unless the fan in question is wealthy, which is not likely.
Also the damages they'd likely be awarded would be peanuts and then there'd be the loss of fannish goodwill. Not to mention the fact that under UK law they're not onto a dead cert anyway.
The damages argument, I suspect, would also apply in the US, although I can't say that for certain (you guys have some damages awards that are mind-bogglingly huge by British standards). But in the end it would also probably come down to money in the US as well.
However, all that being said I can quite understand why no fan would want to be the test case. I wouldn't want it to be me, for example.
But I wasn't making the point about the legalities of the situation with a view to someone going out and actually testing it. I wrote as I did because I see a lot of misinformation posted online. In the case of your excellent post I just thought I'd clear up the particular point re the holding of copyright in derivative works because I've seen comments to the effect that violation of copyright is theft and if you do it you've got no rights at all to any derivative work you produce.
Which feeds into the sense of fannish entitlement and 'I can do what the hell I like because you're nothing but a thief' etc. So I just wanted to clear up that this argument is, well, pretty crappy, really. Certainly, at the end of the day fans mostly have to rely on the morals and ethics of other fans but at least we should be able to prevent them trotting out that particular specious argument when they've engaged in some reprehensible behaviour themselves.
Re: Just to clarify
Date: 2003-04-20 03:41 pm (UTC)Okay, gotcha. And I think, (without actually going back and reading it) I was presenting probably two thoughts slammed together regarding creative rights. One) that, as you pointed out, there is the perception that fan fic creators have absolutely no rights to their work, because it's theft. But that is the perception, even if it's wrong. And 2) that, while there may be an argument on paper for the rights as a creator of derivative works, it's not iron-clad and unless you are totally willing to commit your life, if not your finances, to proving that right in court, a fan really doesn't have any recourse -- and (I could stretch the point) no real "right" at this point in time, because that "right" theoretical or implied, has never been tested in court that I know of.
I don't actually think we disagree and you were totally within your right (gack!) to clarify the point, and I appreciate it.
I have to admit that I don't think of infringement and theft in the same lines, and while I'm sure I've used the phrase "Stealing someone else's ideas/character/situations...) I, personally don't view fan fic, or fan vids, or fan anything much, as theft the way I do, say, Plagiarism. Theft implies the taking of something and treating it as if it were your own and it's your "right" to maintain possession -- be it candy from a store, money from a bank, or someone else's creative output. Infringement is more like...uhm, party crashing. You know it's not your house, not your party, not your beer and chips, but you partake anyway and kind of hope the host won't mind too much as long as you don't walk off with the silver punchbowl and try to sell it, or try to usurp his place as host in the eyes of his guests.
In terms of fan to fan transaction, I think that still holds true. Yes, we often share the same love of source, both parties acknowledging it isn't our personal, original work, but there is a sense of ownership of the context in which we take those similar characters and situations. Context that once again, can be infringed upon, and should be accorded the same crediting of source as the original media source. That there's a hierarchy among some fans to the way people think about who should be due that kind of credit for source, makes my head hurt. I don't often feel put upon to actually even ask permission of another fan although more often I do for courtesy's sake, but I do think acknowledging my source, be it amateur or pro, individual or corporation, is the minimal amount of what I *can* do to make sure everyone knows I actually am fully aware that I'm borrowing without asking.
Which when I look at it written out like that seems pretty silly -- but it does kind of cover my own rationale. Yes, I am borrowing your stuff and yes, I know you may not really like it, and no, I promise I won't make any money off it but seriously, it's sitting on your shelf and you have more than one and well...I mean if you're not going to use it in this way, I'm thinking, that it really isn't a big deal.
Of course that's assuming that the whole branching off of conceptual and contextual paths takes off in so many directions and interpretations that a single person or even a single company couldn't explore them all in a hundred years. Kind of like having a warehouse filled top to bottom with toilet paper, but designating it all for a single toilet. I mean sure, if you can afford to do that, it's fine, but it's kind of ridiculous.
Okay, that was a scary metaphor {g}. I think I need coffee. Or a beer.
Re: Just to clarify
Date: 2003-04-21 11:17 am (UTC)And legally you're quite right not to do so. It irritates the hell out of me every time I see copyright infringement referred to as 'theft' because theft in a legal sense has a very tightly defined meaning, which is:
Clearly a fanfiction writer, vidder or fan-artist does not and cannot 'appropriate' the copyright holder's property, nor do they act dishonestly (no one's attempting to claim that the original show, film, book etc is theirs), nor are they depriving the copyright owner of their own rights to their own copyright.
I mean, there's a reason why it's called copyright infringement and not theft, you know! *g* I realise that some lay-people might argue that it's all a question of semantics but legally it very clearly isn't - there's a huge difference between theft and copyright infringement. Not least that theft is always a crime and copyright infringement is pretty much always a civil matter only. So, yes, I'm completely in agreement with you on this point and I love your very cool analogies. Plagiarism (can be) theft, copyright infringement is never 'theft'.
Some great ideas in the rest of your comments, to which I'll refrain from saying 'word' (although that's pretty much what I mean *g*).
Re: Just to clarify
Date: 2005-09-15 11:42 pm (UTC)