like a ninja from heaven ([info]deriksmith) wrote,
@ 2009-08-27 18:50:00
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Entry tags:copyright, creative commons, hasbro, legal theory, licensing, tfwiki, tfwiki.net, transformers, zeloxenia

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

ahm15-ad_perceptorOn 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:

Perceptor is a scientist, one of the most astute minds the whole of Cybertron can offer. He is perpetually seeking the continued quest for knowledge, and his discoveries have repeatedly proven invaluable. Though his specialties lie in metallurgy, electrical engineering, and additional sciences closely concomitant to Transformer physiology, his thirst for knowledge has made him kind of a scientific jack-of-all-trades.</p>

One of Perceptor’s most infamous mannerisms is the tendency in which he verbally communicates using scientific terminology. This has the unforeseen result of exasperating and occasionally frustrating his comrades. One might hypothesize that the jovial mechanoid is unaware that not everyone with whom he seeks to communicate shares his extensive vocabulary.

Engaging in physical melee is not his preferred activity. He is content to make his contributions to the Autobot cause in the manner in which he deems sufficient, but will engage in combat if the situation requires. Optimus Prime often relies on Perceptor’s perspicacity, and considers him as inestimable as any of his officers.

Perceptor embarked upon a mission in which the Ark-17 was the principal mode of transport as likewise did Springer, attempting to disentangle Kup from a scenario that would all but undoubtedly lead to his expiration. Perceptor, as was the general consensus of those who had embarked upon the voyage, attempted to dissuade Springer of the less than optimal, considering resource allotment, military operation he had accepted.

He later served on Autobot Orbital Command Hub, acting as a peer to acting-commander Silverbolt. He appeared to know Blaster of old, and helped him with his investigation.

Like every other tough-guy group walk in the movies… Sporting what appeared to be a lovely monocle and a decidedly dour demeanor, Perceptor obtained a modicum of prominence. In the company of Kup, Springer, et. al, Perceptor had opted to become more directly involved in deeply discomfiting the Decepticons… until their inopportune crash-landing on Cybertron.

Aside from the monocle and dour mien, he also displayed a targeting proficiency of almost disturbing proportions for one of his scientific inclination, inflicting immediate and conclusive damage on an Insecticon swarm scout with only minimal effort.

ahm15_perceptor_textcomparison

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.”

  1. Statement of Legal Principles</p>
    1. Customary Freehold
    2. Ξενία
  2. Statement of How these Principles Apply
  3. License

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.


(63 comments) - (Post a new comment)


(Anonymous)
2009-08-28 01:17 am UTC (link)
Does any of this involve actually contacting IDW or Joana? I doubt either of them even know there's any legal tossups involved here. (Joana since she's just a colorist, and IDW because half the time they don't seem to know what they're doing lately anyway...)

-Jeysie

(Reply to this) (Thread)

[info]deriksmith
2009-08-28 01:52 am UTC (link)
Frankly, I'd like to put out an 'incident' press release.
TFWiki's only ever released one press release, but when something goes 'oops' it's quite common for companies to put 'em out.

1) It's been brought to our attention that IDW Productions recently stepped on a legal landmine caused by our content.
2) Point out that the actual liability they've incurred is fairly limited (for this application.)
3) Pledge our intention to 'patch' the legal bug which has caused this problem so that it does not occur in a more spectacular manner in the future (which we have just thankfully avoided.)
4) Set a timetable for our patch being in place such that if IDW takes minimal responses (the cover tweak) most of the problem caused by this incident will correct themselves.

It's about as subtle and waving a dead trout in someone's face... but as you say "half the time IDW doesn't know what they're doing." I feel like if it's brought up on the forums there's an excellent chance whoever their rep is will just say "Whatever, if you don't care and we don't care we'll just call it even."
Creative Commons does not bend to our whim like that. They got bit by our dog, and it has rabies... you can't just say "oh, no hard feelings," you need to get a rabies shot.

Of course, this is dependent on the community deciding to adopt my suggested direction. It would be by far preferable for IDW to make the change to the cover now if it hasn't already been printed, that would mean the whole matter of the Perceptor cover could be settled in 22 days (or whenever) when the issue come out instead of being left in limbo.

(Reply to this) (Parent)(Thread)

[info]steve_dash_o
2009-08-28 03:47 am UTC (link)
I kind of think that the colorist or somebody at IDW should be contacted immediately, on the off chance that they might actually take it seriously. If they are going to change the cover, they need to know ASAP. Maybe if you contacted somebody in IDW's legal department -- assuming they even have one, they might care.

On the other hand, legal discussions with official peeps about the wiki is potentially dangerous for the wiki. Even if we are safe behind fair use and such (which honestly, we probably aren't), that couldn't stop them from issuing a "temporary" takedown if they felt like they needed to. A press release would have similar risks associated with it, as it could become a public embarassment for IDW and/or Hasbro *and*, again, draw "official" attention to the wiki.

All that said, I completely agree with you that this is a worrying development and it's important that some form of protection for official licensees be worked into the wiki's policies if possible. If not, you might have to just plaster a permanent warning as a sitenotice to tell licensees that using the wiki's content is basically crossing the proton streams on the entire brand. (Sadly, that's a risk that Hasbro obviously wouldn't be able to tolerate, and they would have to shut the site down.)

(Reply to this) (Parent)(Thread)
(no subject) - [info]deriksmith, 2009-08-28 03:55 am UTC
(no subject) - [info]deriksmith, 2009-08-28 04:08 am UTC
(no subject) - [info]steve_dash_o, 2009-08-28 10:45 pm UTC

(Anonymous)
2009-08-28 11:09 pm UTC (link)
I think it might be easier simply to ask Joana personally to resubmit the cover with the text taken out, after politely explaining the situation to her. Could be that the IDW folks don't even know the text is from the wiki, and would have removed it themselves if they had. She's a reasonable sort of gal.

I'm leery of issuing a press release for some of what Steve says below, at least until we have all the legal tangles completely worked out. Which we don't have time to do before this particular case, considering how long comic press leadtimes tend to be.

- Jeysie

(Reply to this) (Parent)

[info]greenreaper
2009-08-28 02:38 am UTC (link)
I don't see how your "patch" can possibly be legal. You can't add a license to your current work unless you get permission from all the prior contributors to it. The editors only submitted their work under the GFDL, and the GFDL was only convertible (on a one-time basis) to CC-BY-SA.

(Reply to this) (Thread)

[info]deriksmith
2009-08-28 03:47 am UTC (link)
1) CC-BY-SA3 is still a terrible fit for wikis.
2) Moreso for Media Fandom wikis... CC-BY-SA3 was not written with fannish works (where vast chunks of the copyright can be objectively said to belong to another person) in mind.

Separate from CC-BY-SA3's deficiency in regard to Media Fandom sites:
1) ZX usage does not remove content from CC-BY-SA3. Rather I contend that when a user submits an edit to a media fandom site, they have, all along, been releasing their contribution under a dual license. One explicit (CC-BY-SA3/GFDL) the other implicit (ZX.) The fact they released their work under CC-BY-SA3 does not prevent them from also offering their work under another license-- because they possess a personal copyright on their work separate from CC-BY-SA3 or ZX.
2) I know the "implicit license" sounds dodgy as hell... but I can totally back up the idea of unwritten situational contracts... like the medieval concept of implied vassalage-- that wasn't just unwritten, it was unspoken, but still valid. (Also not terribly relevant since the gentry system fell out of favor.) More promising it the idea of "Customary Freehold", which involves the unwritten legal relationship entered into when someone is living or working on someone else's property (admittedly, we're discussing working on someone's intellectual property) without a direct financial relationship or official status. The 'host' and 'tenant' still have a host of rights and responsibilities toward one another that simply come with the territory. This is (broadly) why OSHA regulations make you responsible for the safety of someone on your property-- as host it's an inherent responsibility you have for anyone who comes onto your property. The fact you don't have a financial relationship with them doesn't absolve you of responsibility if they trip on your broken steps and get injured.

[continues]

(Reply to this) (Parent)

[info]deriksmith
2009-08-28 03:47 am UTC (link)


And even more separate from that:
1) I figure that if we can get most of TFWiki's power users to explicitly re-release their prior contributions under the ZX license... that will cover 70-80% of the content on the site. (We can't force them or, or make it a contingency for submitting a new edit, that would violate CC's rules against jailbreaking the old content. But we can ask politely for them to do so voluntarily.)
2) Then if IDW has an explicitly granted right to use 7 out of 10 words on the wiki... I'm confident fair use can absorb the remaining 20-30%. As it currently stands, Fair Use is trying to absorb 100% of that content... and failing, because that's imply not fair use.

So that's 3 level of catchment that function independently:
A) CC-BY-SA3 creaks under wikis just like GFDL did, and even moreso for media fandom sites which present copyright issues it was not meant to handle, and because CC-BY-SA3 becomes 'reformed' under stress it's anti-jailbreak clauses could loosen a little.
B) They hay be an unrecognized and unwritten dual licensing that has always been in place. But even if there hasn't...
C) If the majority of heavy contribuitors choose to explicitly re-release their old contributions under the same terms as B), the remainder can be more easily justified under Fair Use.

If any 2 of those arguments fail, the remaining one still keeps up in the clear, legally.
"A" is the 'failiest.' (I wouldn't want to go to court on it.) I happen to think "B" is not onyl real, but stands a rather good chance of standing up to the scrutiny of a legal challenge, but I'm not depending on it alone because "C" nukes the whole question of implied dual licensing by getting explicit dual licensing for the great majority of the past contributions that are at issue, leaving a much smaller burden to be borne by Fair Use. That one's pretty much ironclad.

And of course there's always the unspoken "D" argument, 'fans are unable to hold copyright on anything they derive from Hasbro's work.' I consider that even failier than "A"... but it's hovering just-offscreen presence does serve to remind people that the nature of the copyright IDW is violating... is all, itself, a copyright violation. (Takes the wind right out of the whole issue!)

Oh, and it goes withotu sayign that we can add " release under the ZX license" to all future contributions. The CC doesn't forbid that. (Can't actually; the value-added portion of an editor's submission, derived or not belongs to themselves. And though they are required to release that built-upon addition under CC-BY-SA3, they are still allowed to release the addition-portion only without CC-BY-SA3 as long as 'a copy' of this addition becomes available under CC-BY-SA3.)

I know I know, it hurts my brain too. (I'm probably gonna have to make diagrams.)

(Reply to this) (Parent)

[info]deriksmith
2009-08-28 03:49 am UTC (link)
Er- to clarify because I didn't specifically answer your stated objection; we're not applying the proposed license to all of our current work, we'd be applying it to a majority of our current work (by politely asking TFWiki editors to re-release their contributions) and allowing fair use to cover the remainder.

(Reply to this) (Parent)(Thread)

[info]greenreaper
2009-08-28 03:57 am UTC (link)
*reads*

That's a little less unlikely, although I wouldn't personally want to rely on any of them in court. :-)

D doesn't really apply to textual works that aren't directly derived from other works. Just because they're based on ideas that were created by Hasbro, that doesn't give Hasbro ownership of all words created to describe those ideas. Now, I don't know how closely TFWiki paraphrases some things, but unless you're word for word . . .

Honestly, I think what will keep you in the clear is the probability that nobody will want to sue you. Goodwill can get you a long way.

(Reply to this) (Parent)(Thread)
(no subject) - [info]deriksmith, 2009-08-28 04:16 am UTC
(no subject) - [info]deriksmith, 2009-08-28 05:23 am UTC
(no subject) - [info]deriksmith, 2009-08-28 05:23 am UTC

[info]dogbite12
2009-08-30 07:02 pm UTC (link)
I read through this post and the comments and I have one question: Are you suggesting the TF Wiki, a website which uses material that is protected by copyright and trademark without the express consent of the owner of said protected property, can in turn make a claim the site itself has the legal authority to impose its own, separate license and terms upon the original owner of the aforementioned property as well as its licensees, which may or may not have separate and competing claims of their own?

In other words, Hasbro and license holder IDW are not the only corporate entities you may have to contend with, as all licensees to this brand may have additional claims on the material in question; however, all rights flow from Hasbro, not the other way around. You should be aware of that.

Intellectual property law is not simple, it's complex. Wikipedia is no substitute for a well researched legal memorandum prepared by a qualified, experienced, practicing attorney specializing in copyright, trademark, and intellectual property law (and not your cousin Mary who works in the County Clerk's office and argues traffic ticket infractions on behalf of a municipality). Perhaps the TF Wiki would be wise to consult with an attorney in this field before making any claims regarding blurred text used in a work of art (which is traditionally given wide latitude) that is derived from a commercial property the wiki has no rights or financial interest to in the first place.

The TF Wiki has ads on its website, thus it generates revenue for the owner. In a real court, that's significant. Before you claim "It all goes to paying server costs!" that's not relevant. An attorney is trained to search and hone in on facts that will cast the adversary in the worst possible light. The wiki receives earns an income from content it does not own and has no legal permission to use-see how that reads? Now imagine a judge who couldn't care less about a fansite-because that's how the people you will eventually deal with view these issues-with an eye towards bringing this to a court action-if you insist on making demands on Hasbro's licensees.

Exactly how has the wiki been damaged? In order to to prevail in a hypothetical court action, the wiki has to first prove it owns the rights to the content in dispute and then has somehow sustained damages (or potential, tangible damages) by the use of the text you cited here. The copyright claim is dubious but let's assume you could sustain it-I don't see any injury and even if you could convince a judge there is, exactly who is the aggrieved party? The wiki can be edited by anyone.

Understand you're no match for a corporate law firm. Think about dropping the issue before you get the wiki shut down. My advice is free so ignore it if you wish.

(Reply to this) (Thread)

[info]steve_dash_o
2009-08-31 03:13 am UTC (link)
I think what this person is saying -- while seemingly misinterpreting your motives -- is that any license we claim to put on the TF wiki (GFDL, CC, whatever) is irrelevant because we don't legitimately own the content and aren't entitled to license it anyway.

That actually sounds pretty right to me, an admitted ignorant novice. And it would mean there is no need to protect official licensees from using our content carelessly. If your hypothetical Neale ever tried anything, the courts would just find that the wiki didn't own its content anyway, meaning that Neale still can't get away with anything. (Also, the wiki would be shut down, as it would be in any legal confrontation.)

So I guess my stance is now to ignore this case, as dogbite12 suggests. Go ahead and still apply the extra license just in case, but don't make contact with IDW, or anybody official. Just do it, and it will probably never matter anyway.

(Reply to this) (Parent)(Thread)

[info]dogbite12
2009-08-31 03:55 am UTC (link)
I'm not trying to impune on anyone's motives (maybe I did misinterpret but the logic in the OP's post is rather circuitous and convoluted) but I believe the OP is missing the forest for the trees.

I'm not an attorney and even if I were, the only valid opinion is that of an attorney who's up-to-date on intellectual property, copyright and trademark law. Basically what I'm saying is that there are serious legal issues involved that must be considered-at the very least, Hasbro could look at this and instruct IDW to remove the text in question and tell the TF Wiki to cease and desist. That would be the most likely response from their legal department and/or law firm that handles these matters. No one wants to see that happen but remember, you're dealing with a business. Anything that may affect profits would set their hair on fire.

[info]steve_dash_o, that's probably the best course of action. Good luck! :)

(Reply to this) (Parent)

[info]deriksmith
2009-08-31 09:32 am UTC (link)
Which is the same old "copyright poachers cannot own the result of their labors" argument that Greenreaper and I were discussing as point "D" above.

It doesn't work. If you follow it, it means that Paramount owns every Star Trek fanfic ever written.
Disregarding that Paramount has no desire to own Stat Trek fanfic... they do not 'own' any part of such a story added by the author. They don't own the original characters, the plot, etc.
The fanfic author has no right to publish that fanfic because they cannot be seperated from Paramount's IP... but that does not mean that the REMAINDER of the story is owned by Paramount.
There are instances where authors have re-worked fanfic to remove IP-infringing elements and actually gotten them published; because THEY have ownership of what they wrote.

This is a difficult concept for many people to get their heads around because it's ultimately abstract-- the result of Hasbro's copyright in practical terms (blocking publication) has a completely different shape from what's actually going on in legal terms (content whose copyright is held by multiple parties and cannot be published without the consent of all) and an even more different is the degree to which a copyright owner can C&D someone beyond what they strictly should be able to, because the system (particularly the DMCA) is stacked to encourages abuse.

What it ultimately comes down to is "facts are not copyrightable, a specific expression of those facts is." The facts of the history of TF are not copyrightable (even by Hasbro, weirdly.) Our write-ups of those histories are.

the only valid opinion is that of an attorney who's up-to-date on intellectual property

I reject this statement, since you could find 3 attorneys that meet this qualification that have 6 conflicting opinions. You are essentially arguing that nothing is knowable. A false-modesty admission that because you don't know a thing, I can't have any idea what I'm talking about either.

Ultimately it's not about us. If it was just the TFWiki, this wouldn't be a problem. But we've adopted a license that's used on literally millions of things, and the terms of that license do not bend to the whim of an individual licensor-- if they did they would lose any strength of enforcement. We have no authority to undermine CC-BY-SA3's strength, because if we did so we'd also be undermining it for Wikipedia, virtually every image on FLCKR and thousands of other sites.

(Reply to this) (Parent)(Thread)
(no subject) - [info]dogbite12, 2009-08-31 08:40 pm UTC
(no subject) - [info]deriksmith, 2009-08-31 08:59 pm UTC
(no subject) - [info]dogbite12, 2009-08-31 09:31 pm UTC
(no subject) - [info]raptorck, 2009-09-02 03:44 pm UTC
(no subject) - (Anonymous), 2009-09-03 12:34 am UTC
(no subject) - [info]raptorck, 2009-09-03 12:42 am UTC
(no subject) - (Anonymous), 2009-09-03 12:58 am UTC
(no subject) - [info]raptorck, 2009-09-03 05:02 pm UTC
(no subject) - (Anonymous), 2009-09-03 10:38 pm UTC
(no subject) - [info]deriksmith, 2009-09-04 04:10 pm UTC

(Anonymous)
2009-08-31 09:43 am UTC (link)
I read through this post and the comments and I have one question: Are you suggesting the TF Wiki, a website which uses material that is protected by copyright and trademark without the express consent of the owner of said protected property, can in turn make a claim the site itself has the legal authority to impose its own, separate license and terms upon the original owner of the aforementioned property as well as its licensees, which may or may not have separate and competing claims of their own?

Hasbro, IDW, and the Animated folks are all quite aware of the wiki and we know for a fact that they sometimes use us as a reference. Several FunPub people edit the wiki regularly, and Jim Sorenson does as well. Some of our images actually were given to us specifically by some of the creators for us to display (Animated Hot Shot's character model, for instance.) So we actually do have permission, in the sense that Hasbro is well aware of what we do and not only hasn't given us a problem yet, but has sometimes actively aided us. It's not like we've been trying to fly under Hasbro's radar.

Further, the only copyrighted material we use is the various screenshots and scans, and we could easily take those down if it came down to it--it'd make the wiki a lot more boring, but it would still be plenty informative. The rest of our information is no different than what places like Wikipedia and Wikiquote--or places like Memory Alpha, if you want a more fandom-related example--write in their articles about copyrighted material.

Exactly how has the wiki been damaged? In order to to prevail in a hypothetical court action, the wiki has to first prove it owns the rights to the content in dispute and then has somehow sustained damages (or potential, tangible damages) by the use of the text you cited here. The copyright claim is dubious but let's assume you could sustain it-I don't see any injury and even if you could convince a judge there is, exactly who is the aggrieved party? The wiki can be edited by anyone.

You're definitely misinterpreting us here. We're not worried about damages to us, so we're completely uninterested in suing for damages or any other such ridiculousness. We're worried on IDW's behalf, not ours. Basically, it's not that we don't want to share our info with IDW, it's that we're worried that we legally can't without IDW's work having to also be released under the same CC-BY-SA license.

We're currently looking at ways to get ourselves under a license that better ables us to give folks like IDW rights to use our stuff without potential legal weirdnesses like the ones above, but it's going to take some wrangling to figure out how to do it without the impossibility of getting permission from every single person who's ever edited the wiki. And this LJ article is an example of such attempts at wrangling.

In short, we want IDW to remove the text to protect IDW's rights, not to enforce ours. It's a safety measure, not a punitive one.

The TF Wiki has ads on its website, thus it generates revenue for the owner.

You mean kind of like how Wikia has ads on its webhosting--and is for-profit on top of that, not just recouping server costs--and still hosts fandom wikis without any problems I've seen yet?

Mind you, I do think we should play this low-key for the moment, but for entirely different reasons that you're putting forth. And I don't think we can just ignore it either; that's basically gambling that a situation like the "Neal" one will never come up. Me, I always assume the worst will happen (because it usually does), and in that sort of worst-case scenario, someone is going to get burned; it's just a matter of who. I'd rather find some way to mitigate that, so everyone doesn't get more than slightly singed at worst.

(Although granted, if Derik's right, it's not a huge deal in this particular case if IDW's rights are affected by our license. I'm just worried that next time we won't all be so lucky, unless we get this figured out.)

(Reply to this) (Parent)(Thread)

[info]deriksmith
2009-08-31 09:51 am UTC (link)
I actually think that the odds of a "Neil" arising in Transfandom are fairly low.

...but it doesn't have to be Transfandom. It could be Star Trek fandom, or almost any other fandom. Someone who sees wiki-content 'leaking' into official stuff, and declares that they have the right to use that stuff. Once the argument GETS OUT (and people realize that there's at least some actual validity to it) it'll spread to other fandoms... because we're all on the same licesnse, that shares the same weaknesses. (Well, not Star Wars. Wookiepedia has a different license IIRC.)

(Reply to this) (Parent)(Thread)
(no subject) - [info]sanityormadness, 2009-09-02 12:16 am UTC
(no subject) - [info]deriksmith, 2009-09-02 02:38 am UTC
(no subject) - [info]sanityormadness, 2009-09-02 04:48 pm UTC

[info]dogbite12
2009-08-31 06:51 pm UTC (link)
O HAI JEYSIE, S'UP? Couldn't resist? Your learnings, are you showing them?

I just came here to suggest that there were important issues being left out of this debate. But now that you're here...

Hasbro, IDW, and the Animated folks are all quite aware of the wiki and we know for a fact that they sometimes use us as a reference. Several FunPub people edit the wiki regularly...So we actually do have permission, in the sense that Hasbro is well aware of what we do and not only hasn't given us a problem yet...

No, that Hasbro knows about the wiki does not mean Hasbro has given the TF Wiki legal right to use its material and operate with permission, it just means they're being nice to the fans. Let me give you an example you might understand: Coach knows there are fake Coach bags are being sold in lower Manhattan-that doesn't mean that sidewalk vendors have magically acquired the legal right to do so by Coach, Jeysie.

Further, the only copyrighted material we use is the various screenshots and scans, and we could easily take those down if it came down to it...

Until it's removed, the Wiki is using material that is copyright and trademark protected-Hasbro could easily have the the Wiki shut down on that basis alone. It can also be argued that the use of this material without permission taints everything contained in the TF Wiki.

You're basically saying "Other people do it, so it's OK!" That's not a compelling reason, it's an excuse.

You're definitely misinterpreting us here...We're worried on IDW's behalf, not ours. Basically, it's not that we don't want to share our info with IDW, it's that we're worried that we legally can't without IDW's work having to also be released under the same CC-BY-SA license.

No, you're clueless on the issue at hand-you can't create a Wiki using material that doesn't belong to you, tweak it and then make a questionable claim of copyright on it, then say Hasbro and it's licensees are subject to this copyright you slapped on it.

You fail to grasp that it is not just IDW you're dealing with, it's Hasbro. IDW makes those comics under a license from Hasbro. IDW doesn't own anything except the right to make comic books about Transformers under the terms of the license.

Lawsuit (moar like LOLSUIT) is just a way of showing you how ridiculous your position is because a civil court is the only venue where you can make this claim and enforce these new rights, the rights which Hasbro supposedly lost when Joana Lafuente created an artwork using blurred text taken from the wiki and IDW published it.

A WORK OF ART. That's what we're talking about. And that's a whole other area.

You mean kind of like how Wikia has ads on its webhosting--and is for-profit on top of that, not just recouping server costs--and still hosts fandom wikis without any problems I've seen yet?

Don't try to muddy the waters by bringing up other websites, Jeysie; the subject is the TF Wiki. The TF Wiki is not incorporated as a non profit corporation and it's finances are not transparent and available to the public for scrutiny. The issue is not intent, it's effect. For all anyone knows the costs are used to pay the website owner's vet bills for his sick cat-the point is, no one knows or even cares. The wiki is earning revenue. Don't fool yourselves into believing that is isn't relevant.

This entire debate is ridiculous but the claim that you wish to mitigate IDW's damages (news flash-that's the correct way of framing your argument) is not only misguided, it's dangerous. You're talking about matters you don't know anything about-issues of copyright, trademark and intellectual property law as well as corporate law. Hasbro has a legal and fiduciary duty to it's shareholders (as well as it's licensees) to take every step necessary to protect it's income generating property so don't delude yourself that this well-meaning but misguided move won't ultimately backfire.

Do whatever you want but when it comes back to bite you in the ass, don't say you weren't warned.



`

(Reply to this) (Parent)(Thread)
(no subject) - [info]deriksmith, 2009-08-31 07:36 pm UTC
(no subject) - [info]dogbite12, 2009-08-31 08:11 pm UTC
(no subject) - [info]deriksmith, 2009-08-31 08:19 pm UTC
(no subject) - [info]dogbite12, 2009-08-31 08:43 pm UTC
(no subject) - (Anonymous), 2009-08-31 10:34 pm UTC
(no subject) - [info]dogbite12, 2009-08-31 11:02 pm UTC
(no subject) - [info]dogbite12, 2009-08-31 11:08 pm UTC
(no subject) - (Anonymous), 2009-08-31 11:27 pm UTC
It's like an episode of Futurama but without the LOLS - [info]dogbite12, 2009-09-01 02:09 am UTC
Re: It's like an episode of Futurama but without the LOLS - [info]deriksmith, 2009-09-01 06:25 pm UTC
(no subject) - [info]deriksmith, 2009-09-01 01:28 pm UTC

(Anonymous)
2009-08-31 09:53 am UTC (link)
Bit of a thought... have you considered asking someone like Chilling Effects for advice on the matter? They do specialize in this specific sort of weirdness, and it might mean being able to get some real legal advice without paying through the nose with money we don't have.

-Jeysie

(Reply to this) (Thread)

[info]deriksmith
2009-08-31 10:37 am UTC (link)
That might be worth looking into...

(Reply to this) (Parent)(Thread)

[info]dogbite12
2009-08-31 07:11 pm UTC (link)
Putting the actual copyright issue aside for a moment, artists are given wide latitude to use copyrighted material in their art. I don't believe the AHM #15 cover is a good example for you to focus on but whatever, do what you want.

(Reply to this) (Parent)(Thread)
(no subject) - [info]deriksmith, 2009-08-31 07:40 pm UTC
(no subject) - [info]dogbite12, 2009-08-31 07:56 pm UTC
uninfection impossible?
(Anonymous)
2009-09-02 06:29 am UTC (link)
I think the assumption that you're operating under, that CC-BY-SA automatically infects derived works, is wrong. If it were true, it would be impossible to violate that license. The fact is, if I don't give attribution and put my derived work under CC-BY-SA, then I have violated that license. The advertisement would be in violation of that license, and Hasbro would be up for damages if the authors of the quoted text decided to sue, which they won't; they won't for similar reasons that happen in the IT industry (which you are presumably well aware of) where companies mutually hold patents to technologies other companies have to use to ensure they won't get sued because a countersuit would follow.

This means that Hasbro using Wiki text is actually a good thing because it reduces the (already) negligible risk that Hasbro would sue the wiki as "the wiki" would now have the grounds for a countersuit (which it won't act on, because then Hasbro would surely sue the wiki).

If you still think automatic infection can occur, then please ponder what happens when content from incompatible "infectious" licenses gets incorportated into a work of art: should the resultant work be available under the superset or the subset of those license terms?

--mendel

(Reply to this) (Thread)
Re: uninfection impossible?
[info]deriksmith
2009-09-04 04:45 pm UTC (link) 
  License A    +   License B
               |
               |
             ART C = source A, source B, original value-added work C


B cannot be Jailbroken to A, and A cannot be Jailbroken to B, so A+C would be licensed as A, and B+C would also be licensed as A. (Just like a fair-use portion of a copyrighted work cannot 'become' CC-BY-SA3 just because it's incorporated into a new CC work; that portion remains fair use in the new melange work.)
Art C could only be reproduced or derived under dual license, I think.

Note: This kind of license incomparability is one of the major criticisms leveled against Creative Commons. People think that "Creative Commons means interchangeable," when it's exactly the opposite; all the flavors of Creative Commons are separate, and content cannot be ported between them.

Your Hobbesian solution of holding knives at one another's throats to assure good conduct is a sick parody of actual peace and mutual goodwill. ;)

As for "lack of attribution = copyright violation instead of licensing"... yeah, I can buy that. But there are a few problems.
1) CC-BY-SA's insistence that failing to properly adhere to its terms doesn't stop others from licensing it from you. The condition requiring attribution is no different from any other term, why does violating it somehow transform this into a non-licensing situation? The way in which the license resolves that conflict... remains ambiguous.
2) This assumption requires that in an information void where the choices are "IDW committed a crime" and "IDW did not commit a crime" you choose the crime as having taken place by default. And that seems a mite... uninstictive.

And ultimately, it's not the legal reality of what occurred that's at issue; it's whether or not some shit could make a legitimate claim that the use may have been CC-BY-SA3 to cause legal headaches for someone trying to stop mass-piracy.

On an even more meta level... ignoring TFWiki's specificity legal ambiguity... if IDW used a graphic from Wikipedia and stuck it on a view screen they'd be int he same bind. Sooner or later a big movie is gonna do that, and there's goign to be a legal slap-fight over DMCA takedowns and weather or not people have the right to copy that movie.
It's not that I expect the people claiming this to win... but because of downstream inheritance, the same issues will keep cropping up for every novelization, comic book spinoff and sequel to that movie.

IDW has to pay Hasbro for the Transformers license. If IDW knows there's gonna be a few lawsuits every year or at least a lot of lawyer-time spent sending DMCA takedowns and C&D's... that means that Hasbro can't charge as much for the license. It's value has been hurt by the general legal ambiguity it has become subject to even without getting into whether people are more likely to pirate a comic that might be CC.

(Reply to this) (Parent)(Thread)
Re: uninfection impossible?
(Anonymous)
2009-09-08 07:17 am UTC (link)
We had a copyright issue over here re: the validity of shrink-wrapped EULAs. You know the deal: go into a store, pay for some software, and when you get home and actually want to use it, you either unpack a piece of paper that says "you just agree to a lot of confditions that limit what you can do", or the installation routine displays that to you and forces you to accept it. The courts ruled that when you buy a software, the contract was that you pay and that you get to use it, and that any conditions that come after that can be safely disregarded (i.e even if you click "accept" on the EULA screen in the setup program because there is no other way to install the software, you aren't bound by it.

That is because you can't have a contract between A and B by just one party saying there is one. B has to actually accept teh contract, and to do so B must have the intent to accept the contract. Now clearly (common sense) the comic isn't meant to be offered under CC BY-SA (the distinguishing feature of all works intended to be offered under it is that they at least mention the license), so the publisher never intended to accept that license, and thus the license contract was never established; the contract/license never applied to that derived work, no matter what the person whose work was unauthorizedly appropriated would like to think.

It's like drawing a line in the sand and saying that whoever oversteps this line must pay you $10. While you wish it were true, it is legally unenforcable.


The US situation is even better: use a CC BY-SA licensed work without relicensing under that license, and you can claim fair use; and your use will be legal as long as it is not challenged. That means the "infection" can't actually happen unless that implied fair use claim is being challenged, because no infraction of the copyright has occurred and applying the license is not necessary. (You explained that very well when explaining the difference between fair use and fair dealing.) There is no contract whatsoever between an author and a fair use user.

--mendel

(Reply to this) (Parent)(Thread)
Re: uninfection impossible? - [info]deriksmith, 2009-09-09 05:17 am UTC
Re: uninfection impossible? - (Anonymous), 2009-09-09 10:28 pm UTC
Re: uninfection impossible? - (Anonymous), 2009-09-13 07:28 am UTC
Re: uninfection impossible? - (Anonymous), 2009-09-18 09:41 am UTC
Re: uninfection impossible? - (Anonymous), 2009-09-18 09:46 am UTC
Seriously Uncool.
[info]wing_zero_ew
2009-09-29 01:38 pm UTC (link)
First off, I'm an outsider to this issue specifically, and I don't want to pretend otherwise. I've read the TFwiki off and on for personal amusement, but I'm not a contributor and I'm not going to pretend I have a personal stake in this per se.

However, as a long-time user of CC licenses, I just have to say: Are you barking mad?

You seriously want to apply a concept from Medieval English tenant law, law that held people in de facto slavery for generations, to undermine the clearly written terms of a Creative Commons license, just to play nice with a comic book company whose artist lifted someone else's work for background filler without permission?

What if someone who contributed to the wiki under the CC license objects to this new scheme? What if the Creative Commons people get wind of this idea you've had... do you think that would be well received?

The simplest solution here is also the one involving basic decency and artistic integrity: IDW attributes the work they took from the wiki to the wiki. No fancy legal tricks required, and it's not like you're going to press the issue anyway. Why is this such an outrageous concept? If they don't want the share-alike part of the license applied to future work, they just stop using this image. Only one advertisement slips out of their control.

I don't understand why that's so difficult.


(Reply to this) (Thread)
Re: Seriously Uncool.
[info]wing_zero_ew
2009-09-29 07:20 pm UTC (link)
Hmm, oops. I didn't notice when I commented on this how old it was, and how late to the party I am. Sorry. Secondly, I'm also sorry I came off as.. well, something of a jerk. (I am something of a jerk so that works out)

Nevertheless, I keep coming back to the idea that people submitted content to your wiki under a given license, and it's not right to change that on them, or even attempt to change it on them, without their consent, especially based on an ancient provison of English law. Fair use may be an old principle, but it's also written into the copyright law of the land, where anyone can look it up at any time, it's explicit.

Plus I think about how what IDW did here amounts to plagiarism. If I copied an entire paragraph's worth of text into a college paper without attribution, I'd be, in short order, flunked, suspended, probably expelled. Why is it ok if a comic book maker does it?

Thanks.

(Reply to this) (Parent)(Thread)
Re: Seriously Uncool.
[info]deriksmith
2009-10-14 01:47 am UTC (link)
Re: "Changing the license" on previous contribuitors... thus the concept of ratification, where people are allowed to explicitly re-release their previous contributions or not, as they choose.

The problem with "IDW should simply attribute..." is... what? Attribute and say "but it's totally fair use!" They ganked the entire main section and IDW history... it was the heart of the article! They took 100% of the text that was relevant to IDW continuity! That's not "a reasonable, small ammount."
So if they acknowledge their use, it would have to be under CC-BY-SA3, which means anyone can make a copy, legally. ...you see the problem with that?

As for "why is it okay for a comic book maker to do that?" ...the wiki has something like 20,000+ images on it. We can claim fair use all we want... but the ruse is we're a walking, breathing machine for creating copyright violations just as bad or worse than IDW appropriating uncredited text.
If we feel we have a RIGHT to do that due to our mandate or purpose behind our action then damnit, let's TREAT it like a right and codify it! And if wWe've got thousands of copyrighted images from IDW comics on the wiki... then it's only POLITE to extend IDW a basic usage right to OUR OWN content as a reciprical right!

As for medieval common law... why not? Fair use is, itself, common law.
The goal is to find some justification that makes what we do (and what IDW does) LEGAL as opposed to saying "well we've both committed crimes, I won't make a big deal about yours if you don't about mine."

In fact due to the nature of copyright law... if IDW fails to act on copyright violations they are aware of, their own copyright is weakened. OTOH, if they believe our use is legal-- either under fair use or some other justification... their failure to act DOES NOT weaken their copyright; regardless of whether TFWiki's use of their material actually IS legal... (which remains undecided unless it were to go to court) as long as they believe in good faith that our use is legal, their failure to come after us does not weaken their copyright. (So really, having acknowledged that we probably use more copyrighted images than fair use allows... it's to IDW's overall BENEFIT if TFWiki had a legal argument of ineffable applicability asserting that we have a right to use crap beyond fair use... because as long as they believe this argument may hold water, their ongoing decision NOT to tell us to cease-and-desist does not weaken their copyright. "Shit, I can't follow what the hell they're saying, but they say they have some complicated usage-right, and they seem to know what they're talking about!" If IDW genuinely believes our usage is (or may be) legal and not a copyright violation that has to be defended against, then their failure to cease-and-desist us does not weaken their copyright. This means their copyrights are protected from erosion WHETHER OR NOT our argument actually holds water, because the erosion is dependent on their beliefs in relation to their actions.

(Reply to this) (Parent)
Re: Seriously Uncool. - [info]deriksmith, 2009-10-14 01:47 am UTC

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