Derik in Minnesota

03:23 am - In which I yell at people kind enough to talk to me

I have not slept in some time, and perhaps have taken too many different kinds of cold medication at once… because everything is sort of pulsing, and my peripheral vision has developed a scanline flicker like a bad CRT monitor.
Anyway I’m high as a kite and catching up on blog comments and discussions relating to TFWiki’s current copyright issues.
I generalize these comments below: (Expect profanity. A lot of profanity.)

COMMENT: Nothing a fan produces can be owned by a fan, because it is an illegal use of another’s property, the whole of the new work (including the fan’s original additions) is ‘confiscated’ back to the original copyright owner.
RESPONSE: Horseshit. Go fuck yourself.
This argument is insane on it’s face. People get their head up their ass and think “ooh, fanfic, you don’t own it, no one can own it…” like it’s as a tenant of uncritical belief. But that belief has no basis in fact.
There is no “special legal status” for fan fiction. That means there’s no special protected status… but there’s also no special persecuted status. It comes down to Copyright.
• A graphic designer creates a poster. By mistake he fails to clear the rights to one of the images used (a flower.) Following the logic of the above argument, the graphic designer would not be able to re-compose the poster, replacing the offending images with another one because the entire poster had become property of the flower’s copyright holder. “You used something that doesn’t belong to you, now it all belongs to us.”
• That sure must be a rude surprise to the owners of the other 5 flower images the graphic designer did pay to use. Suddenly their flowers belong to someone else?
Copyright does not work that way.

“Oh, but what about Bitter Sweet Symphony? The Verve used a Rolling Stones track, and the Stones ended up owning the whole thing!”
…that was a court settlement. Binding arbitration to repay damages for mis-representing the extend of the sample used when it was licensed (”you paid for an inch and took a yard”) awarded the Stones ownership over the song in lieu if financial damages. The verve didn’t have the $$ to pay for their mistake, so the song rights were confiscated, just like repossessing someone’s belongings to pay debt.

This is like saying “I hit someone with a car, now he owns my house.” No, he sues you for hitting him with your car, and if he wins he gets your house.
It’s. Not. Automatic. The practical application of law is not the same thing as “the law says.”

I repeat; Horseshit. Go fuck yourself. I entertain no more repetition of this argument.

COMMENT: One-sided licenses cannot exist, the licensing party has to explicitly sign on to a license or it has no binding force.
RESPONSE: This argument is too stupid to live.
• Someone owns an image.
• They offer it for sale under certain terms and conditions.
• You don’t get to ignore those conditions just because you paid for a copy. If you paid the fee for for “500 printed copies” you can’t print 5000. Nor can you give away copies of it for free, or resell more copies yourself.

If I buy a copy of a Microsoft Word, am I allowed to make copies of it, give them to my friends, or sell copies to other people?

If I use an image that was free-for-use under “CC-BY”, that means I have to include attribution. If I don’t feel like it, I’m not allowed to just pretend I own the picture and not be bound by the license. It’s pre-condition of use. If it is used, that pre-condition must be met!

There are some rumblings going on with software EULAs being invalidated. EULA’s are those crappy little contracts you have to sign to use software (and increasingly, DVD’s.) But they’re failing because you can’t sell someone a product and then spring more conditions on them. For that kind of agreement to be binding, it would have to be made before/when the person bought it.

But again– EULA’s are completely different than copyright. Just like Damages. This has nothing to do the the natural action of copyright law.

COMMENT: You’ll never be able to sue IDW, you’re crazy to try.
RESPONSE: Just… go away. You haven’t been paying attention, and now we’re at step 25 in the process. I’m not going back to explain how you got turned around at step 3. The class is not going to stop for Ralph Wiggum to catch up, because Ralph isn’t gonna catch up even if we do.

COMMENT: You really think you can claim Hasbro doesn’t have a right to use it’s own intellectual property?
RESPONSE: Okay– for starters “you really think you can claim” puts us back into ‘practical application of law’ territory, so this question isn’t about the natural action of copyright.
But let’s pretend it is. This situation is, in fact very messy. So lets break it down into cleaner examples highlighting the principles involved.

• “The original licensor has a right to use all derivations of their work.”
No. Not unless that was a condition they made when licensing that work. Look no further than various versions of The Tick. The original 12-issue comic book series was adapted into a cartoon series and a live action series. The cartoon created several characters not found in the comic. Years later, the live-action series wanted to use those characters… and found they couldn’t. They belonged to the producers of the cartoon series, and when they bought the rights to the 12 issue comic by Ben Edlund… those characters had not been included. They would also have to purchase the rights from the cartoon’s producers. (Instead they created new, similar characters.)

Popular fiction is littered with examples of this. Perhaps one of the strangest examples is the tendency of British sci-fi publishers to acquire the Dr. Who license, publish a few adventures with an original companion, lose the license… and then continue publishing solo adventures with the companion, carefully avoiding direct reference to the Who-elements while still taking place in the same continuity. Clearly copyright can be broken up into parts.

At the other extreme- properties like Star Trek or Star Wars have typically allow licensees to do whatever they want- but Paramount has right-of-use over any new derivations. Indeed, the original owner does have a right to all derivations… but not because it’s an intrinsic right, but because they wrote their licensing contracts that way.

Transformers used to be like this. Up through the year 2003 appearances by Japanese or Euro-exclusive characters in US materials were limited to Easter Eggs because the US and Japanese Transformers licenses were separate, having many characters in common but also many characters unique to each side of the Pacific. The state of Transformers licensing seems to have changes in the year 2005 (possibly relating to Takara’s bankruptcy) and Hasbro and TakaraTomy now hold joint rights over the totality of Transformers fiction, able to reference anything they damn well please. (And oh, how they please…)

• Does Hasbro have a right to use copyrighted material they do not own?
No. I don’t think anyone’s claiming this, but I’m underlining it. Hasbro can’t use Flash Gordon or Harry Potter without paying for those rights- just like any other kind of intellectual property. That includes Wikipedia. Hasbro (or anyone else) wanting to use any ammount of Wikipedia content beyond Fair Use would have to license it. In Wikipedia’s case, that means CC-BY-SA, and the “SA” clause means that the resulting product created from that use would also be CC-BY-SA.
So if IDW created a cover for All Hail Megatron #15 that was a homage to DaVinci’s Virtuvian Man and quoted large chunks of of the Wikipedia article on DaVinci as background text… that cover would logically become CC-BY-SA.

So. If work can become contaminated, and this kind of re-use reaches the standard to cause contamination… the question is really “Does TFWiki have any copyright claim on its own content?” If it does, then our content can contaminate IDW. If it doesn’t…

Well, if it doesn’t, it could come as a shock to Wookiepedia, all of Wikia, not to mention thousands of other wikis operating under the exact same license we are. Because it would mean that all their content belongs to Lucasfilm/dozens of other planes, exclusively.

To some degree, this is a re-stating of the original “does a fan own any part of a fanfic” question, to which the answer appears to be yes, though it hasn’t been definitively settled. (Mostly because such issues can only be settled by court cases– and who goes to court over a fanfic?) There is a vocal minority of fanfic authors who believe the law says that fanfic cannot be copyrighted. They may think this makes it ‘pure.’ Unfortunately, I was on the internet in 1997 when FOX started targeting fansites, so I can’t help but remember this ideological orthodoxy suddenly springing up everywhere as a magic spell by fanfic archive mistresses terrified of being sued to ward off the demon-lawyers. I know this belief is deeply entrenched in its culture, but so are the teachings of Saul of Tarses; that don’t make ‘em right.
20% of American adults think the sun revolves around the Earth. Belief does not make it so.

But in another (more important) way, it’s a different issue entirely. Because these are facts. Facts cannot be copyrighted, only a particular expression of those facts. Phone Numbers and trivia books are two seminal examples of what cannot be copyrighted and what defines fair use.

So if facts can’t be copyrighted… what about the facts of a fictional story? Could it possibly be legal to (for example) publish a book consisting of nothing but character bios, summaries of fiction and behind-the-scenes anecdotes about a series without having the license for that series?

YES GOD DAMNIT. THEY’RE CALLED “UNAUTORIZED GUIDES.” THEY’VE BEEN WRITTEN FOR EVERY MAJOR FRANCHISE THAT EVER EXISTED FROM STAR WARS TO HARRY POTTER. IN THE MID-1990’s WHEN STAR TREK WAS AT ITS PEAK, AUTHORIZED AND UNAUTHORIZED GUIDES TO TNG WERE COMPETING HEAD-TO-HEAD. IF PARAMOUNT HAD A LEGAL BASIS TO BLOCK THAT KIND OF SHIT THEY WOULD HAVE! TRANSFORMERS HAD AN UNAUTHRIZED STORY GUIDE PUBLISHED IN 2002. IT’S 320 PAGES OF SMALL-PRINT DOUBLE COLUMN TEXT SUMMARIZING EVERY TRANSFORMERS CARTOON OR COMIC STORY EVERY PUBLISHED BROKEN DOWN BY SUMMARY, ANALYSIS, FEATURED CHARACTERS, TRIVIA AND GOOFS, MEMORABLE MOMENTS, AND CONTINUITY REFERENCES.

(Does that structure sound familiar? Almost identical to the Wiki’s story summary pages? Uh huh! I own a signed copy of this guide.)

If you want to discuss “but I don’t think we actually can have copyright to our own material” please go away. The discussion you want to have back at step 6 isn’t useful, we’re on step 25.

75% of the crap people keep bringing up isn’t copyright law. It’s punitive settlements, law-as-practiced, Trademark, EULAS, examples of bad faith licensing whose meaning someone has misinterpreted.

So 75% of you shut the fuck up. The remaining 25%, continue.
If you’re not sure which group you belong to… *sigh*, continue. But please be open to the idea you might be wrong.

As rage-tastic as this post is, I am open to the possibility that I might be wrong. I am willing to be convinced.
But any argument that hopes to convince me that you can’t create collections of Transformers facts without Hasbro owning the copyright on the result absolutely must somehow account for the demonstrated fact you $%^&*() can.

(Oh man… I am not a patient and reasonable person by nature, and it chafes. I will doubtless regret posting this when I am no longer high, but for right now… it’s like some kind of rage colonic. I feel cleansed in my everything.)

I declare the “you can’t own shit” discussion closed.

Suck my balls.