Congress to pass S.978, youtube goers outraged

[SpaceMarine93]

Congress is planning to pass a bill which would not only reinforce current Copyright laws, but had an extra note which would make it illegal for people putting up videos of them playing through video games. Let me say it again - CONGRESS IS PLANNING TO BAN PEOPLE FROM MAKING WALKTHROUGHS OF VIDEO GAMES.



Now isn't that an outrage. Online videos of game walkthroughs had been an almost fundamental feature of the gaming community since the dawn of Youtube and other video sharing sites:

- They provide us with information on how to win our own games.

- It allows makers to be creative on the internet by providing their own commentary and adding artistic elements into them that makes them even more fun to watch.

- We people generally watch them for entertainment when we had nothing else to do.

- It could even boost sells of a game by allowing new buyers to see what the new games look like and be encouraged to purchase them.

And as far as it is concerned, each online video walkthrough of a game is a unique creation in itself based on an original content, with players never claiming the original template as their own creation, thereby not violating any copyrights. I mean, people had been writing their own fanfictions about Superman, Warhammer 40000 and Neon Genesis Evangelion for years, many retellings of their original content, and walkthroughs are similar to that. And are those infringements as well? No, they aren't! So why the walkthroughs?

What do YOU think?

[SpaceMarine93]

In addition, if it is possible, I call for an online petition to oppose this bill and prevent its passing at any cost. Write an email to the proposers, tell your friends, put videos in youtube in protest, start picketing, I don't care how. Know that NOTHING related to walkthroughs would be spared by this bill. Anything that's a walkthrough or the all popular 'Let's Play' would be left standing. I doubt even non-video based walkthroughs would survive this purge.

If we don't it would be the end of the Gaming Community as we know it. Who's with me?

[phongn]

In addition, if it is possible, I call for an online petition to oppose this bill and prevent its passing at any cost. Write an email to the proposers, tell your friends, put videos in youtube in protest, start picketing, I don't care how. Know that NOTHING related to walkthroughs would be spared by this bill. Anything that's a walkthrough or the all popular 'Let's Play' would be left standing. I doubt even non-video based walkthroughs would survive this purge.

Online petitions are worthless. Nobody cares about them. You need to write your congressman, and do so in a thoughtful manner.

Congress is planning to pass a bill which would not only reinforce current Copyright laws, but had an extra note which would make it illegal for people putting up videos of them playing through video games. Let me say it again - CONGRESS IS PLANNING TO BAN PEOPLE FROM MAKING WALKTHROUGHS OF VIDEO GAMES.

Do you understand S.978? Or are you just poorly parrotting what someone is telling you? The problem is that the clause is so vaguely worded it could be used in such a fashion and thus should be opposed.

And as far as it is concerned, each online video walkthrough of a game is a unique creation in itself based on an original content, with players never claiming the original template as their own creation, thereby not violating any copyrights. I mean, people had been writing their own fanfictions about Superman, Warhammer 40000 and Neon Genesis Evangelion for years, many retellings of their original content, and walkthroughs are similar to that. And are those infringements as well? No, they aren't! So why the walkthroughs?

Fanfiction is copyright infringement. Copyright holders simply chose not to go after those who write fanfiction (probably because no money is being made and it isn't worth their time).

If we don't it would be the end of the Gaming Community as we know it. Who's with me?

It won't be.

[SpaceMarine93]

Alright, I got the exact details wrong.

[S.978:
Makes unauthorized web streaming of copyrighted content a felony with a possible penalty of up to 5 years in prison. Illegal streaming of copyrighted content is defined in the bill as an offense that "consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works" and has a total economic value, either to the copyright holder or the infringer, of at least $2,500.] Source from OpenCongress.org

It is a new law that would make it illegal for anyone to stream videos that contain copyright material. The effects I mention exists because that would prohibit people's ability to make video walkthroughs because just about everything in a videogame is copyrighted.

Its not really vague in many people's views. Some claim that what we see here is a blatant attempt to push copyright restrictions to extreme levels. Theoretically, the law is so harsh, you could spend 5 years in jail just for streaming a CNN video. Have they even consider the impact of the bill on the American economy?

...

Wait, you did say that companies leave fanfictions alone because the fanfics never makes any profit and is not worth their time. No one ever tries to make a video game walkthrough on the basis of profit, so does that mean people could still get away with making walkthroughs in the future?

[GrandMasterTerwynn]

And as far as it is concerned, each online video walkthrough of a game is a unique creation in itself based on an original content, with players never claiming the original template as their own creation, thereby not violating any copyrights. I mean, people had been writing their own fanfictions about Superman, Warhammer 40000 and Neon Genesis Evangelion for years, many retellings of their original content, and walkthroughs are similar to that. And are those infringements as well? No, they aren't! So why the walkthroughs?

What do YOU think?

You're a fucking idiot, but we already knew that.

A game walkthrough really is a form of copyright infringement, as is 'fanfic' (regardless of whether or not you agree or disagree with the correctness or morality of the copyright laws as they are.) In the case of the game walkthrough, you are taking the game's copyrighted content (cutscenes, look, feel, gameplay, and plot) and uploading them to Youtube for the benefit of people who haven't paid for the game. It's a little better than fanfic, where someone outright steals someone else's original characters and plots.

So, with that out of the way, and for people who aren't idiots, here is the entirety of the text of S.978:

Code: Select all

To amend the criminal penalty provision for criminal infringement of a copyright, and for other purposes.
      Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. CRIMINAL INFRINGEMENT OF A COPYRIGHT.
      (a) Amendments to Section 2319 of Title 18- Section 2319 of title 18, United States Code, is amended--
            (1) in subsection (b)--
                  (A) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and
                  (B) by inserting after paragraph (1) the following:
            `(2) shall be imprisoned not more than 5 years, fined in the amount set forth in this title, or both, if--
                  `(A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and
                  `(B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or
                  `(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;'; and
            (2) in subsection (f), by striking paragraph (2) and inserting the following:
            `(2) the terms `reproduction', `distribution', and `public performance' refer to the exclusive rights of a copyright owner under clauses (1), (3), (4), and (6), respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17;'.
      (b) Amendment to Section 506 of Title 17- Section 506(a) of title 17, United States Code, is amended--
            (1) in paragraph (1)(C), by inserting `or public performance' after `distribution' the first place it appears; and
            (2) in paragraph (3)--
                  (A) in subparagraph (A), by inserting `or public performance' after `unauthorized distribution'; and
                  (B) in subparagraph (B), by inserting `or public performance' after `distribution'.

Do you see "Youtube video game walkthroughs will earn you a minimum of five years in prison, where you will be made to be Bubba's Ass-Buddy every day, you copyright infringer, you" anywhere in there? I don't. There is some vague reference to multiple performances of other people's copyright material, which seems to be targeted at Youtube users. But, as has been said, the clause is so entirely vague that it should be opposed solely for its vagueness.

[Dalton]

Do you understand S.978? Or are you just poorly parrotting what someone is telling you?

Given his past activity here, one must wonder.

[phongn]

Alright, I got the exact details wrong.

[S.978: Makes unauthorized web streaming of copyrighted content a felony with a possible penalty of up to 5 years in prison. Illegal streaming of copyrighted content is defined in the bill as an offense that "consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works" and has a total economic value, either to the copyright holder or the infringer, of at least $2,500.] Source from OpenCongress.org

Better yet, go read the original Senate bill itself (it's small in this case).

Its not really vague in many people's views. Some claim that what we see here is a blatant attempt to push copyright restrictions to extreme levels. Theoretically, the law is so harsh, you could spend 5 years in jail just for streaming a CNN video. Have they even consider the impact of the bill on the American economy?

Have you?

Wait, you did say that companies leave fanfictions alone because the fanfics never makes any profit and is not worth their time. No one ever tries to make a video game walkthrough on the basis of profit, so does that mean people could still get away with making walkthroughs in the future?

The infringed party might argue that the video has indeed cost them some arbitrarily large number though it is unlikely. The very threat of it, however, will probably have a chilling effect.

A game walkthrough really is a form of copyright infringement, as is 'fanfic' (regardless of whether or not you agree or disagree with the correctness or morality of the copyright laws as they are.) In the case of the game walkthrough, you are taking the game's copyrighted content (cutscenes, look, feel, gameplay, and plot) and uploading them to Youtube for the benefit of people who haven't paid for the game. It's a little better than fanfic, where someone outright steals someone else's original characters and plots.

Certain elements may be covered under fair use, but this is a murky area.

[Broomstick]

I mean, people had been writing their own fanfictions about Superman, Warhammer 40000 and Neon Genesis Evangelion for years, many retellings of their original content, and walkthroughs are similar to that. And are those infringements as well? No, they aren't!

Yes, fanfics CAN be copyright infringement - it's just that some authors choose not to pursue the violation, or even allow fans to make fanfic without penalty. However, the later is at the choice and discretion of the copyright holder. The do not have to allow it or tolerate it in any form, regardless of whether the fanfic makes money or not.

Terry Pratchett and Neil Gaimon are examples of authors who tolerate fanfiction. Andre Norton and David Weber do not. Mercedes Lackey permits fanfic derived from her works on the internet under specified conditions (she used to not allow it at all). Anne Rice not only has stated she does not want fanfic of her works, she had pursued people with legal measures if they attempt any. Larry Niven went to court at one point for a cease-and-desist order against a fanfic writer.

All of the above writers are entirely within their legal rights to either set limits or discard them, and as copyright holders THEY make the determination - not Congress, and not the courts. All the courts can do is determine if someone used something copyrighted without permission, and if so, then penalties come into play.

So, yes, one could interpret S.978 as forbidding video game walkthroughs.... except that if a video game company doesn't mind that, all they have to do is publicly proclaim "we're OK with X if you do Y and Z". So, numbnuts, don't write Congress, write the video game companies and ask them to clarify their position on this issue. Hell, even include a case for why they should allow them (as you already pointed out, it's a form of advertising and might help their bottom line - money talks you know). At the end of the day it's what the copyright holders allow that counts.

[Wing Commander MAD]

Honestly, I doubt the various publishers and development houses care much about this. They're profits are far far more impacted by the rental of software for consoles, to say nothing of the used game market that places like GameStop have going. Now, certain book publishers may try to encourage the industry to take a stance seeing as the market for paperback strategy guides for games has bombed with the rise of the internet.

Hell, Nintendo Power, the official magazine of Nintendo, no longer puts out actual strategy guides, even for first party software (ie Nintendo owned IP like Mario, Donkey Kong, etc.). I was actually, kinded saddened by that, as they were always much higher quality and interesting to look at in their own right as they usually had bits of background information and artwork that you couldn't get anywhere else.

[Master of Ossus]

Yes, fanfics CAN be copyright infringement - it's just that some authors choose not to pursue the violation, or even allow fans to make fanfic without penalty. However, the later is at the choice and discretion of the copyright holder. The do not have to allow it or tolerate it in any form, regardless of whether the fanfic makes money or not.

How can a fanfic, as popularly defined, possibly infringe upon a copyright in light of the four factors for fair use analysis? Fanfic, as I think is popularly defined, has zero commercial nature--it's written by a fan (or fans) for their entertainment; not to be sold later or traded. The nature of the copyrighted work will vary, and most likely supports the copyright holder's assertion of a violation and cuts against fair use (in most cases), but the amount and substantiality of the work should (at least as a general rule) be very small--usually limited to the names of characters and other aspects of the fictional universe in which the fanfic is set, and perhaps to certain plot elements. It should rarely include extensive quotes or other material which forms the heart of the copyrighted work. Finally, the effect of the use on the potential market for the copyrighted work (or the value of the work) is likely near zero--no material impact one way or another.

I know that authors and other copyright holders occasionally threaten legal action against fanfic writers. I also recognize that fanfic doesn't fall clearly within one of the two clear categories of fair use (parody and criticism). But in light of this analysis it's really hard to see how a fanfic which is posted on the internet and is competently written (so as to be transformative of the original work) can fall outside of fiar use. I'd really like to see one of the fanfic writers defend themselves against an action. My guess is that they'd win pretty handily.

All of the above writers are entirely within their legal rights to either set limits or discard them, and as copyright holders THEY make the determination - not Congress, and not the courts. All the courts can do is determine if someone used something copyrighted without permission, and if so, then penalties come into play.

That's not how copyright works in the US at all. The author isn't necessarily the copyright holder, but even ignoring that possibility copyright holders don't get to make determinations as to whether fanfic constitutes fair use of their copyrighted materials or a derivative work. The fair use exception is written into law by Congress (and presumably Congress could extend it or contract it as they see fit), and is interpreted by courts--it is certainly not something that the author gets to decide upon for themselves, and the courts are certainly called upon to determine more than mere "use" of a copyrighted material--they must also establish that this use is infringing.

Any penalties or damages associated with violating copyright can also be established via litigation in Federal court.

So, yes, one could interpret S.978 as forbidding video game walkthroughs.... except that if a video game company doesn't mind that, all they have to do is publicly proclaim "we're OK with X if you do Y and Z". So, numbnuts, don't write Congress, write the video game companies and ask them to clarify their position on this issue. Hell, even include a case for why they should allow them (as you already pointed out, it's a form of advertising and might help their bottom line - money talks you know). At the end of the day it's what the copyright holders allow that counts.

I think it's perfectly reasonable to write to Congress and the US Copyright Office to explain why such videos do not constitute copyright infringement because they fall within the Fair Use Exception (or, alternatively, to explain why the law should be clarified or to explain the benefits to society of permitting such use as fair). You can also knock yourself out with the gaming company, but I think that that's actually much less likely to achieve your aims since I'm guessing that (like some of the authors you mentioned) they don't give a shit about the law and (at least the ones that he seems to be talking about) only want to be able to enforce their vaguely grounded interpretations of it upon the public.

[Havok]

FattyNerdsTM strike again!

Congress is planning to pass a bill which would not only reinforce current Copyright laws, but had an extra note which would make it illegal for people putting up videos of them playing through video games. Let me say it again - CONGRESS IS PLANNING TO BAN PEOPLE FROM MAKING WALKTHROUGHS OF VIDEO GAMES.



Now isn't that an outrage. Online videos of game walkthroughs had been an almost fundamental feature of the gaming community since the dawn of Youtube and other video sharing sites:

Tradition for tradition's sake is no valid reason to keep doing something.

- They provide us with information on how to win our own games.

Do it yourself.

- It allows makers to be creative on the internet by providing their own commentary and adding artistic elements into them that makes them even more fun to watch.

Rappers need to get permission and pay royalties to do this.

- We people generally watch them for entertainment when we had nothing else to do.

So you want entertainment provided by a company but don't want to pay for it?

- It could even boost sells of a game by allowing new buyers to see what the new games look like and be encouraged to purchase them.

No, that is what advertising, which the companies pay for does. Walkthroughs are like putting the text of a new book online for free.

And as far as it is concerned, each online video walkthrough of a game is a unique creation in itself based on an original content, with players never claiming the original template as their own creation, thereby not violating any copyrights. I mean, people had been writing their own fanfictions about Superman, Warhammer 40000 and Neon Genesis Evangelion for years, many retellings of their original content, and walkthroughs are similar to that. And are those infringements as well? No, they aren't! So why the walkthroughs?

Those are new creations, not using the exact story/visuals of the source material.

What do YOU think?

I think it is a waste of time, but I see the point.

[Covenant]

I think it's pretty foolish and a bit of an overreach, but this is not the end of the world because there's still ways to get around this whole thing and the game companies can easily do that.

This isn't aimed at people posting Lets Plays, because a game company is more than happy to get you excited about their product so you have to buy it and play it yourself.

This is aimed at people who stream movies or videos or upload copyrighted materials in chunks to other services so you can watch them online. Personally, I love those things as resources to get at content I normally wouldn't have. Like, Chuck's reviews at SFDebris introduced me to Doctor Who, which I'd basically never heard of before a year or two ago, and I'd never heard of Red Dwarf either. I think the BBC stands to make a lot more money from me now than they did before, since those old Dr. Who videos look like enough fun I'd like to buy some reproductions or throw my video editor's hat in to help. Without being able to see this stuff... I wouldn't have.

But this is the nature of media. When tape casettes came out it was the end of the music industry. When VCRs emerged, the movie industry was doomed. It repeats ad infinitum and this is no different. And as a person who has filed DMCA complaints to get his material removed from file sharers, yeah, I can understand the benefit of this precedent to people who want to be paid for their work rather than ripped off.

So really, the bill is complex and vague and written by people who don't understand the medium and are listening to lobbyists who have a vested interest in sending us back to the vinyl record era. But what it isn't is the end of Lets Plays and video reviews yet. I did write in to express this because if people can't upload clips or write Lets Plays or use my materials freely for reviews and commentary then I as a developer have lost a huge supply of free advertising and I certainly don't want that. I mean, hell, if it's me or the TV show people, screw the TV show people I want my free advertising. And companies trying to foster a competitive gaming market are going to be outraged if their streamers are kicked off services out of a washed-hands litigation approach.

Anyway, stop hyperventilating. Yes, it's a bit clumsily worded, but this isn't the "Be a Jackass to Gamers" bill, it's the "You cannot upload Transformers the Animated Movie in 15 parts to Youtube" bill. Now if only these companies would let me watch their stuff, ad supported, on a service like Hulu.

[SpaceMarine93]

Yeah, I admit I probably got overwhelmed by emotion over this issue and had been acting like a complete idiot. It happened before. If anyone perceive me in contempt please note I am not really that kind of person, honest. I am having such issues sorted with professional help right now. If you guys want an assurance, just know that I apologize for my behavior and promise to avoid doing so from now on. Feel free to continue mocking me if you wish, however.

[Broomstick]

Yes, fanfics CAN be copyright infringement - it's just that some authors choose not to pursue the violation, or even allow fans to make fanfic without penalty. However, the later is at the choice and discretion of the copyright holder. The do not have to allow it or tolerate it in any form, regardless of whether the fanfic makes money or not.

How can a fanfic, as popularly defined, possibly infringe upon a copyright in light of the four factors for fair use analysis? Fanfic, as I think is popularly defined, has zero commercial nature--it's written by a fan (or fans) for their entertainment; not to be sold later or traded.

I keep seeing this meme come up - the idea that as long as you aren't selling the fanfic it's OK. It's not. Whether or not you make money is not what determines copyright violation. It can be a factor, but it's possible to intend to make no money whatsoever and still break copyright.

Sure, as long as it is truly for your own entertainment and you keep it strictly to yourself knock yourself out... but as soon as you put it on the internet it's being widely disseminated and the lawyers started muttering things like "unauthorized public broadcast". You may not have sold it, but you HAVE distributed it.

The nature of the copyrighted work will vary, and most likely supports the copyright holder's assertion of a violation and cuts against fair use (in most cases), but the amount and substantiality of the work should (at least as a general rule) be very small--usually limited to the names of characters and other aspects of the fictional universe in which the fanfic is set, and perhaps to certain plot elements. It should rarely include extensive quotes or other material which forms the heart of the copyrighted work.

Fair use actually covers quoting, which is legal if it's not excessive

Finally, the effect of the use on the potential market for the copyrighted work (or the value of the work) is likely near zero--no material impact one way or another.

It's not just material value - somebody writes a fanfic that is somehow vaguely similar to a subsequent novel (for example) and then sues the author for "stealing" their idea is a scenario that has actually come up. Likewise, people have sued well-known musicians for allegedly stealing their music. At least one author I'm aware of tried to solve that problem by bringing in the fanfic writer as a collaborator on a novel but it turned ugly.

And, since there have been instances of fanfics being published, or fanfic writers becoming authors in their own right, the argument becomes weaker and weaker that there won't be a material impact. Some fanfic writers are either good enough to be commercial authors, or actually ARE commercial authors engaging in fanfic.

I know that authors and other copyright holders occasionally threaten legal action against fanfic writers. I also recognize that fanfic doesn't fall clearly within one of the two clear categories of fair use (parody and criticism). But in light of this analysis it's really hard to see how a fanfic which is posted on the internet and is competently written (so as to be transformative of the original work) can fall outside of fiar use.

You already said it - it doesn't clearly fall within either one of the two explicitly defined categories of fair use.

I'd really like to see one of the fanfic writers defend themselves against an action. My guess is that they'd win pretty handily.

I'd like to refer you to the court case Anderson v. Stallone, 1989, where someone was sued for copyright infringement over a script for Rocky IV, as just one example. Anderson didn't try to sell it to anyone but Stallone/MGM, and even there basically said "hey, look at this and tell me if you're interested", yet was hauled into court over it.

All of the above writers are entirely within their legal rights to either set limits or discard them, and as copyright holders THEY make the determination - not Congress, and not the courts. All the courts can do is determine if someone used something copyrighted without permission, and if so, then penalties come into play.

That's not how copyright works in the US at all. The author isn't necessarily the copyright holder, but even ignoring that possibility copyright holders don't get to make determinations as to whether fanfic constitutes fair use of their copyrighted materials or a derivative work.

I thought you were intelligent enough to understand that while "copyright holder" and "author" were not always synonymous they frequently are, often enough that "author" could be used at a stand in rather than a lengthy clarification of "author, musician, artist, originator of work or later copyright holder of that work" every time the word "copyright holder" comes up.

Outside of explicit work for hire, in the US the originator of a work ("the author") is, in fact the copyright holder from the moment of creation since 1978. An author may later sell the rights, but typically the author sells only limited rights, such as "first North American publication rights", and maybe ten years later sells the movie rights, which doesn't allow the purchaser to, say, make a graphic novel of it because that's not the rights sold.

If the copyright holder (author/musician/filmmaker/mega-corporation, etc.) says someone violated their copyright no, that person(s) doesn't make the final determination, the courts do. HOWEVER - a copyright holder can grant permission for use any time he/she/they wants to do so. If an author wants to make a written work public domain he/she can do so at any time, without needing to go to court or have legislation passed. If an author writes a children's book then gives the copyright to a charity for fundraising then that charity becomes the copyright holder and makes those decisions, but the decision to hand over copyright is the original holder's and, again, does not require a court to be involved (though usually there is some official legal paperwork draw up to prevent "donor's remorse" and clarify the transfer).

And this is where the whole fanfic thing comes in - if an author says he/she is OK with fanfic (usually also stipulating things like "no selling the fanfic", sometimes saying "do not use the main characters of my novels", and so on) then that is giving permission. NO ONE is going to hunt down fanfic or game-walk-through video producers if the copyright holder is OK with those works and is not interested in pursing the originators. It's the copyright holder that has to initiate the legal action. Some people like having others play in their sandbox. Others do not. S.978 is giving copyright holders explicit authority to make their sandboxes private.

The fair use exception is written into law by Congress (and presumably Congress could extend it or contract it as they see fit),

...and apparently they see fit to contract it at this time...

....and is interpreted by courts--it is certainly not something that the author gets to decide upon for themselves, and the courts are certainly called upon to determine more than mere "use" of a copyrighted material--they must also establish that this use is infringing.

No, it's not JUST the courts that decide. As I have pointed out - a copyright holder can grant permission and/or rights to anybody, for any reason, at any time. At no point is a court going to say "hey, wait - you can't make you work public domain! You can't allow fanfic authors to make fanfics of your work!"

The courts come in when the copyright holder does NOT give permission.

Here's an analogy: you own a table. You're allowed to let someone borrow that table. You're allowed to sell that table. You're allowed to give the table away. However, no one is allowed to take it without your permission. Nor is anyone allowed to borrow it without your permission, or paint it, or cut a hole in it, or glue macaroni to the top, and so forth.

This is where the word "property" comes into the phrase "intellectual property". The law views a creative work as property. It's treated slightly differently than a table, but then so is a cow you own, due to inherent traits of that property.

Any penalties or damages associated with violating copyright can also be established via litigation in Federal court.

Or via out of court settlement (which is how I settled when someone stole one of my works). It's not seen in the same league as, say, armed assault so if the parties want to avoid an actual trial that's OK, too.

So, yes, one could interpret S.978 as forbidding video game walkthroughs.... except that if a video game company doesn't mind that, all they have to do is publicly proclaim "we're OK with X if you do Y and Z". So, numbnuts, don't write Congress, write the video game companies and ask them to clarify their position on this issue. Hell, even include a case for why they should allow them (as you already pointed out, it's a form of advertising and might help their bottom line - money talks you know). At the end of the day it's what the copyright holders allow that counts.

I think it's perfectly reasonable to write to Congress and the US Copyright Office to explain why such videos do not constitute copyright infringement because they fall within the Fair Use Exception (or, alternatively, to explain why the law should be clarified or to explain the benefits to society of permitting such use as fair).

Sure, you can write to Congress on any matter. Whether that will do any good in another question, but yeah, go ahead. The problem in this particular instance is that most of Congress probably doesn't give a fuck about that particular sub-set of videos, and of those that do care about video-gaming they're probably opposed to such games.

You can also knock yourself out with the gaming company, but I think that that's actually much less likely to achieve your aims since I'm guessing that (like some of the authors you mentioned) they don't give a shit about the law and (at least the ones that he seems to be talking about) only want to be able to enforce their vaguely grounded interpretations of it upon the public.

Just because there are interpretations of the law you don't like doesn't automatically make those interpretations less valid. S. 978 is an attempt to clarify a grey area, the problem is YOU don't like the clarification (neither do I, for that matter, but I suspect I don't feel as strongly as you do about it, possibly because as someone who has had my work stolen at one point I have a bit of a bias on the issue).

Not all gaming companies are going to ban EVERYTHING fans do - hell some of them even encourage fans to make derivative works in things called "contests". Nothing in S978 prevents a copyright holder from granting permission for fanfics, game walk-throughs, or any other derivative use of the copyrighted property. If, say, Blizzard is happy to have instance-walkthroughs made by players and posted on YouTube they are entirely within their rights to say go ahead and make 'em and post 'em - because the copyright holder gives permission it's NOT a copyright violation. So if the bill becomes laws you go to the copyright holders and ask them to grant permission. Will they? That's up to them - some will, some won't. Just like some novel writers are pro and some anti fanfic. Yes, it may suck for you, but until you can convince Congress otherwise it may be the best you can do.

[Master of Ossus]

I keep seeing this meme come up - the idea that as long as you aren't selling the fanfic it's OK. It's not. Whether or not you make money is not what determines copyright violation. It can be a factor, but it's possible to intend to make no money whatsoever and still break copyright.

Congratulations, Broomstick, I believe that this is a new high-water mark in your lifelong campaign to embarrass your second grade reading instructor.

How can a fanfic, as popularly defined, possibly infringe upon a copyright in light of the four factors for fair use analysis? Fanfic, as I think is popularly defined, has zero commercial nature--it's written by a fan (or fans) for their entertainment; not to be sold later or traded. The nature of the copyrighted work will vary, and most likely supports the copyright holder's assertion of a violation and cuts against fair use (in most cases), but the amount and substantiality of the work should (at least as a general rule) be very small--usually limited to the names of characters and other aspects of the fictional universe in which the fanfic is set, and perhaps to certain plot elements. It should rarely include extensive quotes or other material which forms the heart of the copyrighted work. Finally, the effect of the use on the potential market for the copyrighted work (or the value of the work) is likely near zero--no material impact one way or another.

The bolded section is me stating that I will look at the FOUR FACTORS of fair use analysis, and the FOUR italicized sections are me actually performing that analysis.

How the fuck can you read this and conclude that I am subscribing to some meme that there is only one element of fair use analysis?

Sure, as long as it is truly for your own entertainment and you keep it strictly to yourself knock yourself out... but as soon as you put it on the internet it's being widely disseminated and the lawyers started muttering things like "unauthorized public broadcast". You may not have sold it, but you HAVE distributed it.

So what? It's not a commercial distribution (first factor of the test). Whether or not something is widely disseminated is not, alone, one of the four factors of fair use analysis--it has no bearing, except insofar as a measure of the first factor (already discussed) and the fourth factor (whether it has an effect on the potential market for the copyrighted work).

And, btw, keeping something entirely to yourself is NOT a defense to copyright infringement. That's why this clause exists in 17 USC S107 (the section detailing Fair Use):

"The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

The nature of the copyrighted work will vary, and most likely supports the copyright holder's assertion of a violation and cuts against fair use (in most cases), but the amount and substantiality of the work should (at least as a general rule) be very small--usually limited to the names of characters and other aspects of the fictional universe in which the fanfic is set, and perhaps to certain plot elements. It should rarely include extensive quotes or other material which forms the heart of the copyrighted work.

Fair use actually covers quoting, which is legal if it's not excessive

You mean like if it's not "extensive" or if it doesn't constitute "the heart of the copyrighted work?"

It's not just material value

Ummm... actually, it is. Here's the text of the actual law: courts are to consider the "(4) the effect of the use upon the potential market for or value of the copyrighted work."

- somebody writes a fanfic that is somehow vaguely similar to a subsequent novel (for example) and then sues the author for "stealing" their idea is a scenario that has actually come up.

Fair use can't be applied to fanfiction because otherwise a derivative author might be sued for infringing upon the copyright of the fanfic author? WTF is this?

Likewise, people have sued well-known musicians for allegedly stealing their music. At least one author I'm aware of tried to solve that problem by bringing in the fanfic writer as a collaborator on a novel but it turned ugly.

So... therefore... fair use shouldn't be extended to fanfiction? Where do you read any of this in 17 USC 107? (Or any other law, for that matter?)

And, since there have been instances of fanfics being published, or fanfic writers becoming authors in their own right, the argument becomes weaker and weaker that there won't be a material impact. Some fanfic writers are either good enough to be commercial authors, or actually ARE commercial authors engaging in fanfic.

Non sequitur. The fact that some fanfic is successful in its own right, and that some writers can become authors by honing their skills at writing fanfiction, does not mean that the market for the original work is materially impacted. It just means that there might be an additional market for the fanfiction itself (or... totally unrelated works, in the case you cited of a writer of fanfic also being an author in their own right).

You already said it - it doesn't clearly fall within either one of the two explicitly defined categories of fair use.

Yeah, but writers of fanfiction (at least as commonly defined) can easily win on at least three of the four factors, including the most important one (see: Sony Corp. v. Universal Studios at 420). Therefore, they should win in any copyright infringement case brought against them on these grounds.

I'd like to refer you to the court case Anderson v. Stallone, 1989, where someone was sued for copyright infringement over a script for Rocky IV, as just one example. Anderson didn't try to sell it to anyone but Stallone/MGM, and even there basically said "hey, look at this and tell me if you're interested", yet was hauled into court over it.

Anderson v. Stallone never addressed Fair Use Doctrine because the defendant in that case never raised the defense. The very idea that you would consider this to be in any way analogous to fanfic is ludicrous, because the script in question was written by a screenwriter who met repeatedly with MGM officials to try and develop his screenplay into an actual movie, and because if this was successful then he would have been paid a substantial sum of money. The case actually turned upon whether characters can be protected under copyright, independent of other aspects of the media in which they appear.

Had the defendant raised the Fair Use defense, it's easy to see why they would have lost: (1) there was obvious commercial intent, here, (2) the nature of the copyrighted work suggests that Rocky should have been protected since he fits squarely within copyright protection, (3) the amount and substantiality arguably cuts in favor of the defendant because he is creating an entirely new film about Rocky, but (4) the effect on the market for Rocky might have been very great if another could have written Rocky IV and then claimed it was the next film in the Rocky franchise.

So with fanfic, you get 3/4 factors, including the most important one, swinging in favor of the defendant writer. With Anderson you have 3/4 (including the most important one) swinging in favor of the plaintiff copyright holder. Kind of a one-sided knock-out in both cases--there ain't gonna be no rematch.

If the copyright holder (author/musician/filmmaker/mega-corporation, etc.) says someone violated their copyright no, that person(s) doesn't make the final determination, the courts do.

=/=

All of the above writers are entirely within their legal rights to either set limits or discard them, and as copyright holders THEY make the determination - not Congress, and not the courts. All the courts can do is determine if someone used something copyrighted without permission, and if so, then penalties come into play.

Concession accepted.

[snip]

And this is where the whole fanfic thing comes in - if an author says he/she is OK with fanfic (usually also stipulating things like "no selling the fanfic", sometimes saying "do not use the main characters of my novels", and so on) then that is giving permission. NO ONE is going to hunt down fanfic or game-walk-through video producers if the copyright holder is OK with those works and is not interested in pursing the originators. It's the copyright holder that has to initiate the legal action. Some people like having others play in their sandbox. Others do not. S.978 is giving copyright holders explicit authority to make their sandboxes private.

That's not how I read this at all. It's just increasing the criminal penalties for something which is already penalized, under the law. It's not like the copyright holders receive increased damages from violators, nor does it give them additional rights, nor does it shrink Fair Use.

The fair use exception is written into law by Congress (and presumably Congress could extend it or contract it as they see fit),

...and apparently they see fit to contract it at this time...

How? What in this bill addresses Fair Use? Seriously, Fair Use is not at all in play here. It's just changing the criminal penalties associated with copyright infringement.

....and is interpreted by courts--it is certainly not something that the author gets to decide upon for themselves, and the courts are certainly called upon to determine more than mere "use" of a copyrighted material--they must also establish that this use is infringing.

No, it's not JUST the courts that decide. As I have pointed out - a copyright holder can grant permission and/or rights to anybody, for any reason, at any time. At no point is a court going to say "hey, wait - you can't make you work public domain! You can't allow fanfic authors to make fanfics of your work!"

The courts come in when the copyright holder does NOT give permission.

Strawman fallacy. Nowhere have I claimed that the copyright holder's permission doesn't constitute a valid defense to a charge of copyright infringement. I have only pointed out that, contrary to your view, Fair Use is also a defense that almost certainly shields authors of fanfiction.

Here's an analogy: you own a table. You're allowed to let someone borrow that table. You're allowed to sell that table. You're allowed to give the table away. However, no one is allowed to take it without your permission. Nor is anyone allowed to borrow it without your permission, or paint it, or cut a hole in it, or glue macaroni to the top, and so forth.

This is where the word "property" comes into the phrase "intellectual property". The law views a creative work as property. It's treated slightly differently than a table, but then so is a cow you own, due to inherent traits of that property.

Gee, thank you for the education in IP, Broomstick.

And as to the nature of the property determining treatment, YES! That's why fair use is a defense to a copyright infringement claim. There is no analogous defense with physical property because physical property is rivalrous.

Any penalties or damages associated with violating copyright can also be established via litigation in Federal court.

Or via out of court settlement (which is how I settled when someone stole one of my works). It's not seen in the same league as, say, armed assault so if the parties want to avoid an actual trial that's OK, too.

What are you talking about? Of course you can settle a lawsuit stemming from an armed assault. Oh, wait, OH! I get it. You're forgetting to argue that assault is not only criminally punishable, but also constitutes a tort. Apparently you think that this distinguishes it from copyright claims. But actually BOTH assault AND copyright infringement carry criminal penalties in addition to giving rise to civil liability. God are you ignorant.

(Incidentally, even in criminal cases it's possible to avoid an actual trial if the parties want to agree--in fact, the parties DO reach such agreements in greater than 95% of cases in the US--it's called "plea bargaining.")

Sure, you can write to Congress on any matter.

=/=

So, numbnuts, don't write Congress

Concession accepted.

Just because there are interpretations of the law you don't like doesn't automatically make those interpretations less valid.

No, but your rebuttal of my four factor analysis consisted entirely of the naked claim that I was using a single factor as part of the test and some bullshit about how quoting can be protected under fair use (as if I had said otherwise).

S. 978 is an attempt to clarify a grey area,

BULLSHIT.

Where does this text clarify a grey area? What grey area are you even talking about? The only thing that it's doing is replacing one set of criminal penalties with another--there's no grey area involved either way.

the problem is YOU don't like the clarification (neither do I, for that matter, but I suspect I don't feel as strongly as you do about it, possibly because as someone who has had my work stolen at one point I have a bit of a bias on the issue).

What clarification? And I haven't even given an opinion on the bill. The only thing that I've done is pointed out how your understanding of copyright law is completely and utterly wrong. Your description of copyright as a concept is not remotely accurate with copyright law in the United States.

Not all gaming companies are going to ban EVERYTHING fans do - hell some of them even encourage fans to make derivative works in things called "contests". Nothing in S978 prevents a copyright holder from granting permission for fanfics, game walk-throughs, or any other derivative use of the copyrighted property.

True, but they don't have to grant permission in order for fanfic to be permissible. It falls under the Fair Use Exception provided by 17 USC S107. Therefore it's not a derivative work.

If, say, Blizzard is happy to have instance-walkthroughs made by players and posted on YouTube they are entirely within their rights to say go ahead and make 'em and post 'em - because the copyright holder gives permission it's NOT a copyright violation.

Congratulations. You have identified another defense to a claim of copyright infringement--if the copyright holder grants permission to you to use their copyrighted material, you are permitted to do so. However, you consistently disregard this other defense, which I've been talking about this whole time: Fair Use. Remember that one?

So if the bill becomes laws you go to the copyright holders and ask them to grant permission. Will they? That's up to them - some will, some won't. Just like some novel writers are pro and some anti fanfic. Yes, it may suck for you, but until you can convince Congress otherwise it may be the best you can do.

[/quote]

Nonsense. The bill does absolutely nothing to 17 USC S107. The Fair Use Exception is entirely untouched by the passage of this bill, and so by definition the bill cannot possibly alter the existing balance between fair and infringing uses of copyrighted material. Antifanfic authors are entitled to their opinions on fanfic, but it doesn't seem that they are legally within their rights to stop fanfiction because such use falls within the safe harbor afforded by 17 USC S107.

[Simon_Jester]

Yeah, I admit I probably got overwhelmed by emotion over this issue and had been acting like a complete idiot. It happened before. If anyone perceive me in contempt please note I am not really that kind of person, honest. I am having such issues sorted with professional help right now. If you guys want an assurance, just know that I apologize for my behavior and promise to avoid doing so from now on. Feel free to continue mocking me if you wish, however.

Just... quit wigging out. That's all I really have to say, man.

[Broomstick]

The bolded section is me stating that I will look at the FOUR FACTORS of fair use analysis, and the FOUR italicized sections are me actually performing that analysis.

How the fuck can you read this and conclude that I am subscribing to some meme that there is only one element of fair use analysis?

If you take that giant stick out of your ass and go back and re-read what has been written I never said there is only ONE element of fair use analysis. YOUR error is in thinking all such elements must apply. That is not the case. You can get busted for any one of them, though obviously the more you violate the more likely you are to get penalized.

Sure, as long as it is truly for your own entertainment and you keep it strictly to yourself knock yourself out... but as soon as you put it on the internet it's being widely disseminated and the lawyers started muttering things like "unauthorized public broadcast". You may not have sold it, but you HAVE distributed it.

So what? It's not a commercial distribution (first factor of the test).

It doesn't have to be a commercial distribution to violate copyright law. ANY unauthorized distribution of a copyrighted work is a violation regardless of whether that distribution involves money or barter. ANY. Rent a movie theater out of your own pocket, invite 2,000 people over to watch a movie, and even if you don't charge a dime you've just blown copyright (having some friends over in your own home is OK, renting a public venue is not). Why? Because – at least in the US – every goddamned video tape and DVD has a warning right at the beginning clearly stating that it is a violation.

And, btw, keeping something entirely to yourself is NOT a defense to copyright infringement. That's why this clause exists in 17 USC S107 (the section detailing Fair Use):

"The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

It appears you don't understand the difference between “keeping it to yourself” and “unpublished”. If you write a 100,000 pages of copyright violation and never show it to anyone and keep it in a box under your bed it's not a problem. That is, however, different than an unpublished work you pass around to your friends or make available to anyone who wants to read it. That's different than an unpublished work you try to sell to someone.

Fair use actually covers quoting, which is legal if it's not excessive

You mean like if it's not "extensive" or if it doesn't constitute "the heart of the copyrighted work?"

I don't get the eyeroll – the one hitch is that “extensive” or “excessive” is not precisely defined and depends on the work. Quoting three paragraphs from War and Peace is not extensive, quoting three paragraphs from a four paragraph piece of writing is.

It's not just material value

Ummm... actually, it is. Here's the text of the actual law: courts are to consider the "(4) the effect of the use upon the potential market for or value of the copyrighted work."

No, it's not – penalties for violation are affected by that, but the creator of work has copyright regardless of whether the work has been sold or not, or is intended to be sold.

- somebody writes a fanfic that is somehow vaguely similar to a subsequent novel (for example) and then sues the author for "stealing" their idea is a scenario that has actually come up.

Fair use can't be applied to fanfiction because otherwise a derivative author might be sued for infringing upon the copyright of the fanfic author? WTF is this?

Let's try that again - “somebody writes a fanfic that is somehow vaguely similar to a subsequent novel (for example) and then the fanfic writer sues the orginal author of the fictional universe for “stealing” the fanfic author's idea”. Yes, it has happened. This is why a lot of authors and writers do not go to forums with fans discussing their work and do not go to fanfic sites. That is why some publishers will not look at unsolicited work.

Current US copyright law is that copyright exists from the moment of creation. If a fanfic is an original work then yes, it too is copyrighted. No one other than the holder of that copyright has any right to copy or distribute that fanfic without permission (other than the usual fair use) including the originator of the fictional universe in which it is set. Why wouldn't fanfiction have a copyright? The fact that fanfic authors choose to allow others to freely read/share/distribute their works doesn't change that.

Likewise, people have sued well-known musicians for allegedly stealing their music. At least one author I'm aware of tried to solve that problem by bringing in the fanfic writer as a collaborator on a novel but it turned ugly.

So... therefore... fair use shouldn't be extended to fanfiction? Where do you read any of this in 17 USC 107? (Or any other law, for that matter?)

I'm not reading the law, I'm talking about how the courts have decided cases in the past, what lawyers specializing in copyright and trademark have told authors and artists for years, including the ones I've talked to about my own published works.

And, since there have been instances of fanfics being published, or fanfic writers becoming authors in their own right, the argument becomes weaker and weaker that there won't be a material impact. Some fanfic writers are either good enough to be commercial authors, or actually ARE commercial authors engaging in fanfic.

Non sequitur. The fact that some fanfic is successful in its own right, and that some writers can become authors by honing their skills at writing fanfiction, does not mean that the market for the original work is materially impacted.

First of all, some already “honed” authors do, in fact, participate in fanfiction. Second, the fact some fanfiction has been published shows there is, in fact, a commercial side to all this at least potentially. Third, no, it doesn't automatically mean the market for the original work is impacted... but there have been arguments for years that it can and in some cases does.

You already said it - it doesn't clearly fall within either one of the two explicitly defined categories of fair use.

Yeah, but writers of fanfiction (at least as commonly defined) can easily win on at least three of the four factors, including the most important one (see: Sony Corp. v. Universal Studios at 420). Therefore, they should win in any copyright infringement case brought against them on these grounds.

Uh... why? It only takes blowing one factor to make a copyright infringement. Sure, clearing three out of four makes it less likely you'll get penalized, but even one is sufficent for a cease-and-desist order, being forced to take down a file from your website (and others), and so forth. That's not “winning”.

I'd like to refer you to the court case Anderson v. Stallone, 1989, where someone was sued for copyright infringement over a script for Rocky IV, as just one example. Anderson didn't try to sell it to anyone but Stallone/MGM, and even there basically said "hey, look at this and tell me if you're interested", yet was hauled into court over it.

Anderson v. Stallone never addressed Fair Use Doctrine because the defendant in that case never raised the defense.

It's not just about “fair use”, it's about unauthorized use. Fanfic enthusiasts like to shout “FAIR USE!” but the courts are not so quick to apply that.

The very idea that you would consider this to be in any way analogous to fanfic is ludicrous, because the script in question was written by a screenwriter who met repeatedly with MGM officials to try and develop his screenplay into an actual movie, and because if this was successful then he would have been paid a substantial sum of money. The case actually turned upon whether characters can be protected under copyright, independent of other aspects of the media in which they appear.

Emphasis added – that is precisely why it applies to fanfic. If characters are protected under copyright independent of other aspects of the media in which they appear then it also applies to fanfic.

All of the above writers are entirely within their legal rights to either set limits or discard them, and as copyright holders THEY make the determination - not Congress, and not the courts. All the courts can do is determine if someone used something copyrighted without permission, and if so, then penalties come into play.

Concession accepted.

How is that a concession of anything? Unless you're agreeing I'm right and you're not?

And this is where the whole fanfic thing comes in - if an author says he/she is OK with fanfic (usually also stipulating things like "no selling the fanfic", sometimes saying "do not use the main characters of my novels", and so on) then that is giving permission. NO ONE is going to hunt down fanfic or game-walk-through video producers if the copyright holder is OK with those works and is not interested in pursing the originators. It's the copyright holder that has to initiate the legal action. Some people like having others play in their sandbox. Others do not. S.978 is giving copyright holders explicit authority to make their sandboxes private.

That's not how I read this at all.

Yes, well, different people read the law differently. That's why we have courts and the lawyers are well fed. Until a law is actually tested in court no one knows what the actual effect will be.

I have only pointed out that, contrary to your view, Fair Use is also a defense that almost certainly shields authors of fanfiction.

Yes, yes, I know the fanfic crowd believe that.... but ask an actual lawyer dealing with copyright and you'll get a different answer. I know this, because I have asked such a lawyer.

An author saying “I permit fanfiction” is actually the only shield fanfic writers should rely on. Now, if they want to take the risk without such an assurance that's their call, but if they get hauled into court I don't want to hear any fucking whining as they blaze a trail for those that follow (or maybe not... depending on what the court decides).

Any penalties or damages associated with violating copyright can also be established via litigation in Federal court.

Or via out of court settlement (which is how I settled when someone stole one of my works). It's not seen in the same league as, say, armed assault so if the parties want to avoid an actual trial that's OK, too.

What are you talking about? Of course you can settle a lawsuit stemming from an armed assault. Oh, wait, OH! I get it. You're forgetting to argue that assault is not only criminally punishable, but also constitutes a tort. Apparently you think that this distinguishes it from copyright claims. But actually BOTH assault AND copyright infringement carry criminal penalties in addition to giving rise to civil liability. God are you ignorant.

No, actually I am experienced. The state can prosecute armed assault regardless of whether the victim wants a court case or not. It will not pursue a copyright violation unless the victim brings it to court.

(Incidentally, even in criminal cases it's possible to avoid an actual trial if the parties want to agree--in fact, the parties DO reach such agreements in greater than 95% of cases in the US--it's called "plea bargaining.")

Plea bargaining in armed assault is between the state and the accused (at least in the US), NOT the victim and the accused. Prosecution can and will proceed regardless of whether the victim wants to try the case. Copyright law violation cases are between the victim and the accused. Unless the victim wants to try the case it will not proceed. Copyright settlements are not “plea bargains”, not in the sense you use the term.

Here's the difference – in the case of armed assault, it's the state that sets the rules/laws. In the case of copyright, it's the author who allows or doesn't allow the use.

So, numbnuts, don't write Congress

Concession accepted.

Confirming that you don't have to write Congress hardly constitutes a “concession” of any sort, especially when the sentence is so very taken out of context. You're really reaching, aren't you?

Just because there are interpretations of the law you don't like doesn't automatically make those interpretations less valid.

No, but your rebuttal of my four factor analysis consisted entirely of the naked claim that I was using a single factor as part of the test and some bullshit about how quoting can be protected under fair use (as if I had said otherwise).

Your elegant “four factor analysis” has no bearing in reality when it comes to actual working of the law. YOU are the one using a single factor, screaming “fair use” over and over.

BULLSHIT.

Shouting does not make you less wrong.

The only thing that I've done is pointed out how your understanding of copyright law is completely and utterly wrong.

Funny – that's not what my lawyer said. Actually, lawyers, I've consulted several over the years since the 1980's. When was the last time you talked to an actual copyright lawyer?

True, but they don't have to grant permission in order for fanfic to be permissible. It falls under the Fair Use Exception provided by 17 USC S107. Therefore it's not a derivative work.

Please cite the court case(s) where that was firmly established... because until it's tested in court nobody really knows. Yes, YOUR side of this argument is absolutely convinced they're right... but the other side feels equally certain.

If, say, Blizzard is happy to have instance-walkthroughs made by players and posted on YouTube they are entirely within their rights to say go ahead and make 'em and post 'em - because the copyright holder gives permission it's NOT a copyright violation.

Congratulations. You have identified another defense to a claim of copyright infringement--if the copyright holder grants permission to you to use their copyrighted material, you are permitted to do so.

If the CH grants permission it is not an infringement!. That point keeps sailing over your head. This is also something that confuses a lot of basement-dwelling fanfic authors. Some authors have explicitly granted permission, therefore, in those particular cases there is no copyright violation because permission has been granted. Other author have NOT granted permission or have explicitly stated they FORBID such use, and THOSE are the instances where fanfic writers are treading on thin ice. Just because author A is OK with fanfic does not mean author B is, and one of these days the fanfic people are going to find themselves in court over it.

[Terralthra]

Broomstick, you're doing industrial dancing on top of thin ice here. "Fair Use" isn't applied by courts, it's employed by a defendant in a copyright infringement case as what's known as an affirmative defense. It's essentially the defendant saying "I did perform the act in question, but for reasons to be explained, my performance of said otherwise-criminal act was not criminal."

Also, no, you can't get "busted" for "any one" of the Fair Use criteria; the defendant in a copyright infringement case may use any one of them as a defense. Jesus. I don't see how you can even know what the four factors in Fair Use law are and say what you're saying. They are explicitly exculpatory factors:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

In order to fall under this defense, a piece of fanfic would need to (1) be transformative of the original work, (2) appropriate relatively little, (3) not detract from the potential market for further derivative works by the copyright holder and/or their licensees, OR (4) be non-commercial.

1, 2, and 3 are very case-dependent, though 3 seems pretty unlikely for most fanfic. 4 is where the defense is strongest, though I'd caution most successful fair use defenses falling under the non-commercial criterion are educational in nature.

Like MoO, I would like to see a fanfiction infringement case go to court, as I agree that there is a strong case for a fair use defense. There are even commercial-purpose derivative works (e.g. The Wind Done Gone) that have successfully used a fair use defense.

Let's try that again - “somebody writes a fanfic that is somehow vaguely similar to a subsequent novel (for example) and then the fanfic writer sues the orginal author of the fictional universe for “stealing” the fanfic author's idea”. Yes, it has happened. This is why a lot of authors and writers do not go to forums with fans discussing their work and do not go to fanfic sites. That is why some publishers will not look at unsolicited work.

Case?

[Master of Ossus]

If you take that giant stick out of your ass and go back and re-read what has been written I never said there is only ONE element of fair use analysis. YOUR error is in thinking all such elements must apply. That is not the case. You can get busted for any one of them, though obviously the more you violate the more likely you are to get penalized.

Oh, Broomstick, I love your SOP. When you get called on bullshitting, your method of getting out of that involves bullshitting some more, until your original bullshit is forgotten behind the torrent of fresh stuff. Let's see what Congress has to say.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — [snip list of four factors which I analyzed]

In short, all four factors must be applied in evaluating whether or not something is fair use.

It doesn't have to be a commercial distribution to violate copyright law. ANY unauthorized distribution of a copyrighted work is a violation regardless of whether that distribution involves money or barter. ANY. Rent a movie theater out of your own pocket, invite 2,000 people over to watch a movie, and even if you don't charge a dime you've just blown copyright (having some friends over in your own home is OK, renting a public venue is not). Why? Because – at least in the US – every goddamned video tape and DVD has a warning right at the beginning clearly stating that it is a violation.

I do not know where to begin correcting this:
1. Not every goddamned video tape and DVD has a warning at the beginning stating that it is a violation. Night of the Living Dead, for example, was never protected by copyright for this reason.
2. Distribution is not usually the key factor in establishing copyright infringement, idiot. The key is usually the act of making a copy. And, by the way, the distribution section is limited to commercial transactions. Observe:

§ 106. Exclusive rights in copyrighted works38

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Sale or other transfer of ownership, rental, lease, and lending are all commercial activities when the materials are being given to the public, so commercial distribution is key. It's hard to see how non-commercial distribution is infringing, but making a copy of a copyrighted work without authority does infringe.

It appears you don't understand the difference between “keeping it to yourself” and “unpublished”. If you write a 100,000 pages of copyright violation and never show it to anyone and keep it in a box under your bed it's not a problem.

Bullshit. You have, then, violated 17 USC S106(a)(1) because you have "reproduce[d] the copyrighted work in copies or phonorecords." Again you illustrate your profound ignorance of IP law. Do I need to explain the two halves of the term "copyright" in order for you to grasp why copying of a copyrighted work can exceed the rights of someone who has physical possession of a copy of it?

That is, however, different than an unpublished work you pass around to your friends or make available to anyone who wants to read it. That's different than an unpublished work you try to sell to someone.

True. We should have some sort of celebration to encourage this form of behavior on your part.

Ummm... actually, it is. Here's the text of the actual law: courts are to consider the "(4) the effect of the use upon the potential market for or value of the copyrighted work."

No, it's not – penalties for violation are affected by that, but the creator of work has copyright regardless of whether the work has been sold or not, or is intended to be sold.

I'm not having this discussion with you, any further. I have pointed you specifically to the section on Fair Use and demonstrated that it requires an analysis of the effect on the potential market for or value of the copyrighted work (fourth factor).

Your claim that the "creator of work has copyright regardless of whether the work has been sold or not, or is intended to be sold or not" is true but totally besides the point. Determining whether a use of copyrighted material falls within the safe harbor provided by 17 USC 107 requires an analysis of the use's affect on the value of that work (along with the other three factors that I've been hammering you over the head with and which you last insisted were irrelevant if even one factor weighed against fair use). And, yes, this is the commercial value only--the "potential market for or value of the copyrighted work."

Your unwillingness to acknowledge this point, even when confronted with statutory language that is directly on-point, avails you nothing. Anyone reading this thread can easily look up the relevant section and determine for themselves that my statement of the law is fully accurate, contrary to your shrill, dishonest, and dishonorable insistence otherwise.

Let's try that again - “somebody writes a fanfic that is somehow vaguely similar to a subsequent novel (for example) and then the fanfic writer sues the orginal author of the fictional universe for “stealing” the fanfic author's idea”. Yes, it has happened. This is why a lot of authors and writers do not go to forums with fans discussing their work and do not go to fanfic sites. That is why some publishers will not look at unsolicited work.

So what? You're trying to argue why Fanfic shouldn't fall within Fair Use, remember? Where does any of this come into the four factors analysis?

Current US copyright law is that copyright exists from the moment of creation. If a fanfic is an original work then yes, it too is copyrighted. No one other than the holder of that copyright has any right to copy or distribute that fanfic without permission (other than the usual fair use) including the originator of the fictional universe in which it is set. Why wouldn't fanfiction have a copyright? The fact that fanfic authors choose to allow others to freely read/share/distribute their works doesn't change that.

You're trying to argue why Fanfic doesn't fall within the Fair Use exception, remember? Where does any of this come into the four factors analysis to show that Fanfic shouldn't fall within 107?

I'm not reading the law,

Yes. You've made that abundantly clear.

I'm talking about how the courts have decided cases in the past,

Which courts? Cite a single god-damned case that wasn't reversed at a higher level in which fanfic (by which I mean a work written by a fan that wasn't commercially distributed) was found to have infringed upon a copyright in spite of an assertion that the fanfic fell within the Fair Use exception.

what lawyers specializing in copyright and trademark have told authors and artists for years, including the ones I've talked to about my own published works.

Yawn. Appeal to authority fallacy. Even if this were true (and given your other glaring misunderstandings of copyright law, I rather doubt that you can be trusted to properly understand an attorney describing the issue to you), the attorney in question would doubtless have inaccurately described the law if he didn't recognize that the four factors of the fair use test must be applied to all cases in which Fair Use is raised as a defense. Note that this would be an inconceivable gaffe by a specialist in copyright law (or, frankly, for any attorney). If it is your position that you actually heard this from a practicing attorney, then I would suggest that you describe this incident to the state bar, because such an attorney has obviously violated his duty of competence towards you.

Second, the fact some fanfiction has been published shows there is, in fact, a commercial side to all this at least potentially.

Yeah, and when it's published you can reevaluate whether or not it constitutes fair use.

Third, no, it doesn't automatically mean the market for the original work is impacted... but there have been arguments for years that it can and in some cases does.

Okay, so there are frivolous arguments otherwise. What do you think, Broomstick, since we're trying to work through this analysis from an objective perspective? Do you honestly believe that fanfic.net materially impacts the commercial value of the Dragon Age or Star Wars franchises? If not, then it's a total red herring because you've acknowledged that the stronger finding is that there's no impact.

Uh... why? It only takes blowing one factor to make a copyright infringement.

Bullshit. These are factors, not elements. Remember?

Sure, clearing three out of four makes it less likely you'll get penalized, but even one is sufficent for a cease-and-desist order, being forced to take down a file from your website (and others), and so forth. That's not “winning”.

Clearing three of four factors makes it unlikely that you'll get penalized because it provides a valid defense to a claim of copyright infringement.

It's not just about “fair use”, it's about unauthorized use. Fanfic enthusiasts like to shout “FAIR USE!” but the courts are not so quick to apply that.

What is this "unauthorized use" doctrine that you've made up out of whole cloth?

In the entire Copyright Code, "unauthorized use" appears only once:

(e) Nothing in this section shall be construed to permit, beyond the limits of fair use as provided by section 107, the unauthorized dramatization of a nondramatic musical work, the production of a transmission program drawn to any substantial extent from a published compilation of pictorial, graphic, or sculptural works, or the unauthorized use of any portion of an audiovisual work.

So, yeah, if fanfic is fair use (which it pretty clearly is), then that ends our analysis. It's irrelevant that the use was "unauthorized," because it was fair. That's the whole god damned point of 107.

As for your claim that courts are not so quick to apply Fair Use--you're quite correct. A court, first, goes through the FOUR FACTORS of Fair Use analysis when this defense is raised, and then draws a conclusion from its findings on these. Then they apply Fair Use.

Emphasis added – that is precisely why it applies to fanfic. If characters are protected under copyright independent of other aspects of the media in which they appear then it also applies to fanfic.

And... how does this affect our Fair Use analysis, which is the point of this entire diatribe on your part?

How is that a concession of anything? Unless you're agreeing I'm right and you're not?

I'm pointing out that, earlier, you claimed that "all the courts can do is determine if someone used something copyrighted without permission, and if so, then penalties come into play." That totally ignores the Fair Use defense of 107 (which the court must examine after having concluded that the defendant's conduct appears to infringe upon a copyright), or do you disagree with the existence of a Fair Use defense under 107?

Moreover, writers are not within their legal rights to set limits on fair use of their materials, and they do not make that determination--Congress and the courts do.

Like I said: Concession accepted.

Yes, well, different people read the law differently. That's why we have courts and the lawyers are well fed. Until a law is actually tested in court no one knows what the actual effect will be.

How can a bill which doesn't even mention 107 affect the application of 107, Broomstick? Serious question. Read the fucking bill. Nothing in it affects application or interpretation of 107. How did you conclude that it does?

The entire Copyright Title of US law does not need to be reinterpreted each time a bill is passed that increases the criminal penalties associated with violating it--the increase in penalties only changes that paragraph which is expressly modified by the bill.

Yes, yes, I know the fanfic crowd believe that.... but ask an actual lawyer dealing with copyright and you'll get a different answer. I know this, because I have asked such a lawyer.

More appeals to authority. They won't avail you of much, here, Broomstick.

An author saying “I permit fanfiction” is actually the only shield fanfic writers should rely on. Now, if they want to take the risk without such an assurance that's their call, but if they get hauled into court I don't want to hear any fucking whining as they blaze a trail for those that follow (or maybe not... depending on what the court decides).

This would obviously cut both ways, but the fanfic writer has a very strong defense in reliance of S107.

No, actually I am experienced. The state can prosecute armed assault regardless of whether the victim wants a court case or not. It will not pursue a copyright violation unless the victim brings it to court.

Actually, they do just that with the DMCA.

Here's an example. No DirecTV involved in that case.

Plea bargaining in armed assault is between the state and the accused (at least in the US), NOT the victim and the accused. Prosecution can and will proceed regardless of whether the victim wants to try the case. Copyright law violation cases are between the victim and the accused. Unless the victim wants to try the case it will not proceed. Copyright settlements are not “plea bargains”, not in the sense you use the term.

Here's the difference – in the case of armed assault, it's the state that sets the rules/laws. In the case of copyright, it's the author who allows or doesn't allow the use.

Here's the difference between rape and copyright violations: in the case of rape, it's the victim that sets the rules by consenting or... oh, no, wait, turns out these are exactly the same. The fact that the consent of a rightholder is a total defense to acts that would otherwise be criminal is not evidence that the state cannot prosecute for the criminal act in absence of the victim's prior suit. Nothing in the Copyright Title bars the US government from criminally prosecuting someone without the rightholder first suing them.

As for your bullshit about the state not prosecuting unless the copyright holder first sues, why are the statutes of limitations different between civil and criminal cases, if you are correct?

§ 507. Limitations on actions7

(a) Criminal Proceedings. — Except as expressly provided otherwise in this title, no criminal proceeding shall be maintained under the provisions of this title unless it is commenced within 5 years after the cause of action arose.

(b) Civil Actions. — No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.

Is it your position that in no circumstances can a criminal proceeding be brought against a copyright infringer if the underlying infringement commenced between 3 and 5 years ago?

Confirming that you don't have to write Congress hardly constitutes a “concession” of any sort, especially when the sentence is so very taken out of context. You're really reaching, aren't you?

The sad thing is that I'm not: you said that someone shouldn't write Congress (very insultingly, even though he was evidently right as per your later, half-assed backpedaling), and then in your very next post here you admitted that it might be productive for people with his beliefs. Your inability to form a self-consistent argument, and your constant inability to read the relevant bills and statutes, is just bogging down the thread at this point.

Your elegant “four factor analysis” has no bearing in reality when it comes to actual working of the law. YOU are the one using a single factor, screaming “fair use” over and over.

Fair Use is a defense, moron. It's not "a single factor." If you find that the use in question is Fair Use then it cannot possibly give rise to a cause of action for infringing upon a copyright, even if the copyright holder doesn't like it. And as for your claims that the four factor analysis has no bearing in reality when it comes to actual working of the law, where's your evidence for that? Do you think that federal judges regularly ignore the statutes that they are asked to apply? If so, I suggest that you fill out an application for a federal judge position, Broomstick. Your credentials are absolutely impeccable.

BULLSHIT.

Shouting does not make you less wrong.

So what part of the bill clarifies the "grey area" that you spoke of, then, Broomstick?

Your conduct is so absolutely reprehensible--so utterly lacking in any shred of dignity, morality, and honesty, and falls so far below the standards of this board that I'm going to quote the entire thing in context, again (reconstructing for where you snipped the quotes):

S. 978 is an attempt to clarify a grey area,

BULLSHIT.

Where does this text clarify a grey area? What grey area are you even talking about? The only thing that it's doing is replacing one set of criminal penalties with another--there's no grey area involved either way.

Shouting does not make you less wrong.

If I was wrong to call bullshit, why can't you actually defend your original statement? WHERE'S THE GREY AREA in the original law, and how does 978 address it?

For those who haven't bothered to follow this, here's the timeline:
1. Broomstick makes a bullshit statement.
2. I point out that it's bullshit and cite the text of the bill as evidence why.
3. Broomstick says that my declaration that her statement was bullshit doesn't make it so, as if my statement that it was bullshit stood alone, and wasn't immediately followed up with an explanation for why her assertion was bullshit and a challenge that she defend her claim. She conveniently omitted this entirely from her response, of course, focusing instead exclusively upon the initial identification of her outright lie for what it was.

Funny – that's not what my lawyer said. Actually, lawyers, I've consulted several over the years since the 1980's. When was the last time you talked to an actual copyright lawyer?

It's been a few months--I need to call and see how he's doing.

But your incessant appeals to authority (incidentally, I very much doubt that you've ever been in contact with any copyright attorney at all, and certainly you haven't understood their explanation if you were in contact with such people) grow tiresome, Broomstick. Did you or did you not consult your "copyright attorney" on Bill 978? Did your unnamed copyright attorney state that this bill clarifies a grey area or did he not? If not, then why mention it when we're talking about your statement that 978 attempts to clarify a grey area?

Please cite the court case(s) where that was firmly established... because until it's tested in court nobody really knows. Yes, YOUR side of this argument is absolutely convinced they're right... but the other side feels equally certain.

Suntrust Bank v. Houghton Mifflin Co. is an even more extreme case in which the Federal court system established that transformative works using the same characters, universe, and locations of an earlier copyrighted work constitutes Fair Use. It is a more extreme case than any fanfic case because the work in question was a commercial work which was actually published and sold, even though the original work fit squarely within the copyright regime, because the impact on the market and value for the original work was deemed to be minimal and because the portions of that work which were appropriated were found to be relatively small.

And, incidentally, can you cite a single scholarly article in which the author seriously argues that Fanfiction falls outside of Fair Use? Because if not, then there is no "other side" which feels equally certain in the other direction.

Congratulations. You have identified another defense to a claim of copyright infringement--if the copyright holder grants permission to you to use their copyrighted material, you are permitted to do so.

If the CH grants permission it is not an infringement!. That point keeps sailing over your head.

What the flying fuck? When have I ever claimed otherwise? Cite my post in which I said that reproducing a work with the copyright infringer's permission infringed upon that copyright.

In fact, the sentence that you quoted (apparently as an example of me failing to grasp this point) directly says the same thing that you asserted as some sort of epiphanical moment. There are at least two complete defenses to copyright infringement: one (copyright holder's permission) which you keep crowing that I don't recognize (even though I do), and two (Fair Use)--something which you have failed to adequately acknowledge, failed to accurately restate, and failed to properly apply. Do I need to go over counting to two, again, or can you remember that far back in your education? It should be nice and easy for you, since you very obviously never got past second grade (and second corresponds with "two").

This is also something that confuses a lot of basement-dwelling fanfic authors. Some authors have explicitly granted permission, therefore, in those particular cases there is no copyright violation because permission has been granted. Other author have NOT granted permission or have explicitly stated they FORBID such use, and THOSE are the instances where fanfic writers are treading on thin ice. Just because author A is OK with fanfic does not mean author B is, and one of these days the fanfic people are going to find themselves in court over it.

... And when they do, they will argue that theirs constitutes Fair Use. Which it obviously does (unless you actually want to go through the four factors to show why they do not lead to this conclusion).