19 days, 351 Words and Patient Zero - Derik in Minnesota
Aug. 27th, 2009
06:50 pm - 19 days, 351 Words and Patient Zero
When the Transformers Wiki was deciding to relicense its content under the Creative Commons, we spent a lot of time discussing it. I mean—an insane amount of time. The GFDL’s relicensing option offered a single up-or-down choice; stay with GFDL or switch to Creative Commons. Why bother?
Well, because the community is concerned about potential problems our license might cause for Hasbro. CC-BY-SA is not a ‘play license,’ it’s court-tested and carries significant consequences.
The question that we kept coming back to: So what if some official Transformers publication re-uses a portion of our content? Of course, what are the odds of that happening?
19 days later
On August 1, 2009, TFWiki.net switched to a CC-BY-SA3 license. On August 19, 2009 IDW comics published Transformers: All Hail Megatron #14. One page of that comic (pictured) features text from one of our articles. Specifically, it features 351 words from two sections of the Perceptor article; the complete text of his main bio and history in the IDW comics, quoted verbatim. (They even left in an image caption.)
351 words isn’t a lot, right? It sounds trivial!
Let’s take a look at what was used:
The Bad News: Like an inexorable physical reaction
…oh dear. Okay, that’s clearly not fair use. The amount of text used, and its significance constitute a complete bio of the character. The fact that it’s being used for visual ‘texture’ is irrelevant; if IDW had (for example) chosen to quote the complete text from a page of Harry Potter and the Order of the Phoenix there would be no question that they are using someone else’s copyright. The fact that the text is only being used for visual texture is irrelevant; it’s legible.
The text of that article is licensed under CC-BY-SA3. Using that text in another work (except as Fair Use, which this exceeds) automatically makes that work also CC-BY-SA3. Conscious choice or even acknowledgment on the part of the publisher that CC-BY-SA3 was used is irrelevant; downsteam liability means that the work, and any new work derived from it, is ‘infected’ by the CC-BY-SA3 license.
What does that mean, practically? It means anyone can copy and distribute a copy of that work, or produce derived works… legally. When I include pictures with blog entries on this site, I usually have to cite “fair use” to justify that use. I’m not this time. I have a perfect legal right to use, copy and remix these images, and so does anybody else. (It’s a bit like if they’d accidentally fallen into the public domain, except the opposite, because they infect me when I use them too; this blog entry is now CC-BY-SA, which means I’ve lost control of my copyright over it.)
IDW Publishing has just lost control of its own content. In fact it’s now holding content that can potentially infect everything else.
The Good News: The infection is small
It’s not quite as bad as all that… yet. IDW has several things working in its favor.
- The page in question is actually an advertisement for the next issue, #15. (It’s one of 2 covers.) So that means that only this image has fallen into CC-BY-SA. If the text had been re-used inside the story of #14, it would have rendered the entire story CC-BY-SA and enable anyone to make and distribute bootlegged copies of the comic… legally.
- It’s a cover. Issue #15 will be published with two different covers in a 50:50 ratio. Because both versions are considered to “be” #15, it stands that the cover is a legally distinct from the story itself, #15 is #15 whether or not it has Cover A or Cover B. This means that when #15 itself is published a month from now, the resulting pamphlet will probably be defined as a “collection of multiple works” in the eyes of CC-BY-SA3; and the license allows CC-BY-SA3 to be collected with non-CC-BY-SA3 works. This means that the cover will not infect the comic itself. (There is no need/point to pulp the issue if it’s already been printed, the legal complications get no worse by #15’s publication.) GFDL doesn’t allow this; it would have infected to whole issue when it was published. Good thing we switched on August 1st!
This Section 4(a) applies to the Work as incorporated in a Collection, but this does not require the Collection apart from the Work itself to be made subject to the terms of this License.
- TFWiki.net gives a shit. The community that runs the wiki wasn’t blindsided by this problem; we’ve been discussing exactly this scenario for the last 3 months and had been settling in on the best strategy for preventing it; adding a second non-public license for the site’s content that will be open only to parties that already have a license to create official Transformers works. (Such as IDW comics.) Since the Creative Commons license specifically forbids “jailbreaking” content out of it, we’ve been taking our time to make sure the process by which we roll out this license does not conflict with the terms of CC-BY-SA3.
- TFWiki.net is a courteous guest. We ‘play’ with works that are the intellectual property of Hasbro. Hasbro reaps benefit by our play (both in promotion and documentation) but also, demonstrably, incurs risks. Our play has just fed back into their material and caused legal problems. TFWiki.net feels it incurs a basic responsibility to steward Hasbro’s interests for the health of the Transformers brand, which is the entire reason we’d been working on the problem. Now, we figured to have a few months to get all the bugs ironed out… but for IDW we can probably get it ready before #15 is released.
- All of which means that once our second license is in place, IDW will be covered, legally. If such a gaffe happens again in the future, it will no longer cause the resulting work to become CC-BY-SA.
- It might even be possible (legally speaking) to ‘rescue’ the cover that’s already become CC-BY-SA. Not to recall it from CC-BY-SA3… that train has sailed. But IDW could (at least theoretically) relicense our text under the forthcoming “second license” and create a new work that would not be CC-BY-SA.
A non-trivial detail: this would require going back to colorist Joana Lafuente to get a version of the cover without the text; ‘rewinding’ back to a point before the image became infected by the license. She would then re-license the text under the new terms and IDW would have a version of the cover not subject to the infective license. For this to work, there would have to be some visible change made to the cover to demonstrate that it was a new version such as removing the text "Like every other tough-guy group walk in the movies…" (That was an image caption, it should never have been included in the first place anyway.) Just like a sitcom whose DVD replaces a popular song with generic music; material you didn’t earn the rights to has been replaced by something you did. (It wouldn’t matter if this change were made in time for #15’s publication… but it would be advisable to have a ‘clean’ version of the cover in the long run to prevent future complications involving art books, cover collections and any reuse of the art that could potentially cause its ‘infectious’ license to spread.)
In all, this doesn’t sound so bad. It’d be perfectly possible (though inadvisable) for IDW to keep the CC-BY-SA cover within it’s archives, publishing it in TPB’s and such… without infecting the rest of its content! Does that mean that the Creative Commons isn’t actually that infectious?
No, it means that IDW dodged a bullet. See, one doesn’t really ‘build on’ covers, so it’s relatively hard for them to inflict downstream contamination on future works… they aren’t actually blending or mixing with the new works.
But what if the use had been in the story itself? There is no “degree” of contamination under Creative Commons, it’s like a zombie bite, you’re either infected or you’re not. All parts of the story would become CC-BY-SA. And any future work that ‘built off of’ that story would also become CC-BY-SA. Comic books are serial fiction. Each story builds on everything that’s come before. Any flashbacks to this issue, any direct references ot its events, and changes the character underwent… if they appear in any future story, that story would become infected, and could then likewise infect others… the end result of which is that every Transformers comic IDW published would eventually become CC-BY-SA3; and anyone could legally copy or distribute them.
Next Steps: 19+28 Days Later
TFWiki.net is probably going to try to roll out a functioning “second license” within the next month in time for All Hail Megatron #15’s publication, so that if IDW does have time to update the cover as outlined above the license will be in place to meet it.
I am not a TFWiki.net administrator or sysop. I hold no sway over the body of users beyond my own ability to make suggestions… but this is the skeleton I’m going to be using to develop what I call the “ZX License.”
- Statement of Legal Principles</p>
- Customary Freehold
- Statement of How these Principles Apply
Sections 1 and 2 are re-assertions of established fact and a statement of belief, respectively. Like an opinion draft, they cannot be ‘wrong,’ at least not in a way that carries legal consequences.
Section 1.1 and 1.2 outline established legal principles, both widely and historically recognized to be valid, both concerning unwritten contracts. It will be my contention in Section 2 that these principles have been in effect since the wiki began, and that the overlap of the two principles is an unwritten moral and legal compact with respect to Media Fandom that has always been in place. (In fairness to myself… this is not bullshit. The principles involved have a virtually 1:1 correlation to TFWiki.net’s written standards of good conduct in fandom.)
Section 3 is the only (strictly speaking) legally binding part, which will offer “consistent with the above principles” a limited private (or conditional, I need to check the wording) license to persons who already have the official “Transformers license” from Hasbro/Takara to legally reuse a small portion of our content beyond the limits of allowed by fair use.
This actually carries two distinct meanings; 1) All future submissions to the site will explicitly be available under this license. It further asserts that 2) because the principles in Section 1 have always been in play, past submissions were actually dual licensed; explicitly under GFDL/CC-BY-SA and implicitly under ζῆλοξενία… a separate-but-more-limited right of use
(Yes, that’s Ancient Greek. “ζξ” = “ZX License” as in. I did say it was established legal theory. 3000+ years, and still in practice.)
This sidesteps the problem of “jailbreaking” content out of the Creative Commons because we’re not breaking it out… this is a completely separate pre-existing (and more limited) right-of-use. Nor does it constitute an assault on the integrity of the Creative Commons general ability to protect content because the operative principle does not exist outside of Media Fandom. “ζῆλο” is Ancient Greek for “Fandom.” (More or less. The word ‘fanatic’ only dates from the 16th century. I’ve substituted the root from “zelotes“, which is “an admiring follower.”) Ignoring for the moment that this license was granted by the submitter separately from CC-BY-SA and the Creative Commons doesn’t get to say fudge about the matter… “normal” CC-BY-SA content does not fall under this license, it is incredibly specific to activities surrounding media fandom and simply does not exist unless something is… fanish. (Am I going to have to explain this in a followup post? Oh yeah.)
If I had been looking for a loophole I could use to break our content out of the CC-BY-SA3 via dubious legal gymnastics, I’d be worried about this standing up to scrutiny. But I stumbled across this concept only after concluding that the CC license was not breakable, so the discovery was a very happy “wow, this exactly matches what’s going on on TFWiki… and it provides a pre-existing mechanism for a reciprocal exchange of limited rights”, which is exactly what we’d wanted.
TFWiki.net has spent 3 years re-synthesizing the natural law underlying these concepts… only to discover that someone else beat us to it 3,500 years ago. I hate having to repeat that kind work unnecessarily. That’s why we have Creative Commons in the first place, so people share and benefit from one another’s work freely, enriching all!
…anyway, in the final analysis, that whole concept falls under Section 2; the legally non-binding part. So irrespective of whether you believe the concept is valid (and it is) it shifts the burden of proof off IDW and onto anyone who wants to claims otherwise. Before they can assume such a use is CC-BY-SA, they need to go to court and prove it’s not ζξ.
And that’s much better than the current situation, where someone can copy, remix and redistribute such a work and the burden is on IDW to prove it’s not CC-BY-SA.
And it will do this without putting our balls in the legal crossfire.