Derik in Minnesota

02:18 pm - ZX License: Key Ideas

It is September 14. I am crazy busy. All Hail Megatron #15 is released in the 16th.
Let’s do this thing.

I’ve been calling my proposal for TFWiki’s hypothetical “second license” intended to protect producers of official Transformers-related material from legal complications around the CC-BY-SA license which governs our content the “ZX License.” I’ve never really defined what that means. I do so now, shotgun style.

Given: Copyright exists

It is a given of this license that TFWiki has a basic copyright over its own value-added contributions which is separate from the raw facts of the universe which are indisputably Hasbro’s property.

(Whether or not Hasbro is able to exert copyright over those ‘bare facts’ is a question; people can publish “unauthorized guides,” which suggests that collections of fiction-fact may not be subject to copyright. However, such guides are written in a very specific “voice” to toe this legal line very carefully. TFWiki’s articles are not- and frequently include direct quotes from Hasbro’s material they indisputably can exert copyright control over. So for our purposes, we’ll just say ‘yes, Hasbro can exert ownership over its portion of our content.’)

The result is that TFWiki’s articles are under joint copyright, partly Hasbro’s property, partly our own. Neither party can legally publish them without the permission of the other. That is not the same thing as “Hasbro owns our articles,” rather it is “Hasbro’s partial ownership of our articles restricts our ability to do whatever we want with them.”
The correlary that many seem to miss is that our partial ownership of the article restricts Hasbro from doing whatever they want with them. Specifically, if Hasbro use them, our portion is automatically licensed under CC-BY-SA, whose viral license terms (including the right for anyone to make or distribute copies) will then contaminate the resulting work.
Thus… the need for a second license.

Permissive vs. restrictive law

IP License grants tend to be very long and legally complicated things, because they wish to grant the licensee very specific, non-blanket usage rights, so every way in which those rights are granted-but-then-limited must be outlined in mind-numbeing detail phrased in the most unambiguous way possible.

…we’re not doing that. The ZX License is permissive, not restrictive. It essentially boils down to “You can do literally anything as long as you limit the content used to a small ammount. This license is only offered for small-amount usage.”
As a result, the legalese can be short.

Legal concepts

The “ZX” in the ZX License is rooted in two basic concepts of common or natural law.

Customary Freehold – The unwritten legal relationship between a landowner and tenants on his land whose right to be there has never been officially written down but stands from long tradition. These include the tenants responsibilities towards the landowner, their rights towards the land, etc. Customary Freehold has largely fallen out of use since the 19th century (when it became typical for all contracts to be written down) but is still recognized to be legally valid.

Xenia – The ritualized “guest-host” relationship that exists between a Household and the temporary guests within it. The guest’s responsibility not to abuse the Host’s hospitality and the Host’s not to make his guests feel a burden, as well as some social and even legal obligations. Somewhat notably, it includes an obligation for guests to defend their host from attack. (This last bit was actually the cause of the Trojan War… Hellen of Troy may have been beautiful, but it was the honor-obligation from all the guests at her husband’s dinner party where she was stolen that launched the thousand ships…)

In both cases the obligations between Guest-Resident and Host center on ideas of “implied consent” and “duty to rescue” found in most modern Good Samaritan Laws. (Indemnification: not so much.)

Intellectual Property as Real Estate

The concepts above govern the relationship between a guest and host on physical property.
We hold that the same basic principles apply with intellectual property. Both recognize a difference between trespass and theft, concepts of adverse possession and (most importantly) have guests… not just int he form of business partners (who are granted explicit license to be on that property) but individuals who are invited to stay for a bit and play with the owned-concepts fount there.

Broadly, you can divide this sort of “intellectual real estate” into two types, dependent on the landowner’s relationship to guests on their property.
* Closed Culture – Guests are allowed to visit, but strictly on a look-but-do-not-touch basis, like a tour. Melrose Place is a good example of a Closed Culture; the Spelling Entertainment Group has consistently (and notoriously) acted to shut down many type of “fan” activities, including fanfic archives and even discussion boards. Melrose Place is a Closed Culture entertainment where fans are welcome to visit and view, but not wander freely or create their own works. It is very much provided with “no user serviceable parts inside.”
* Open Culture – Guests are allowed to wander freely and actively encouraged to create their own derivations based on the IP found there, which are recognized as belonging to them. Dungeons & Dragons would be an extreme example of an Open Culture. Users are provided a sandbox kit and expected to make their own characters, settings and adventures that TSR will not have no ownership of except for those elements which were drawn from the D&D lexicon.

Most properties fall somewhere between these extremes. Increasingly in recent years the fans-as-receivers closed model has fallen out of favor as a relic of an management culture that made no distinction between fandom-activity and piracy… but it is still sometimes practiced today by property owners who want to exert control over the manner in which fans interact with their product.
Transformers is something of a middle-ground. Cartoon, comics et all are centrally produced, but (fairly uniquely at the time) every Transformers toy produced since 1984 has included a bio, and character stats including a ranking within the faction command hierarchy, and the play-pattern presented by it’s own commercials has consistently been one of narrative roleplay. Clearly children have been encouraged to create their own adventures, and each character comes with their own bio and stat-set as a starter kit to do so.

What this all essentially amounts to is the idea that if a Copyright owner has historically extended safe harbor to fanish activities, they cannot summarily retract it, in the same way a Landowner cannot summarily eject customary freeholders and similar to the way a trademark owner cannot seek to exert control over a trademark which they have allowed to fall into general use.

This means that the status fans occupy on the owner’s property is more akin to Homesteading than squatting. (Arguably this is legally important, because it characterizes many common fandom activities as a permitted or semi-permitted use rather than an ongoing copyright violation that weakens the general copyright on the core property.)

(There is something of a fandom-bill-of-rights-and-responsibilities at work here… but that’s more of a side effect of the root law being used than an intention. The intention comes in with the next bit.)

Key Meta-concepts

Having identified underlying concepts and applied them to IP-as-property, it’s time to label our understanding of those ideas:
* Zeloxenia – The “ZX” in ZX License, this loosely translates as “fan guest-hospitality.” Zeloxenia encompasses Xenia, Customary Freehold, and homesteading as outlined above. Fans who have been invited to play on another’s property are recognized to have a right to do so, while also having significant responsibility toward the property-owner not to damage the landscape in the process.
Fans who choose to tarry or ‘camp’ in this property and build more complex derivations may have an understood right to do so… but in so doing they also become more responsible for the area they occupy. As their level of involvement deepens, fans bear an increasing burden to protect the value of the property; this may mean properly citing copyright so their use does not erode the owner’s property, and a basic responsibility cultivate the property they are occupying. To a certain extent, resident-fans go from being visitors on this property to stewards or Yeomen of it.
Xenia includes a ritual exchange of gifts, which may be fulfilled here by a “good-neighbor” relationship; you may borrow one another’s hedgeclippers as long as you make sure to return them. This is similar to land-use rights that might be expected under common freehold… a basic diffusion or interchange of rights and property occurs between both parties that is mutually-forgiven/freely-gifted as a natural part of their relationship.
Good faith is a prerequisite for Zeloxenia to exist, and in Closed Culture broadcast-receiver models where fans have no rights, it is understood to be very weak or not exist at all.

An important point to note here: This is all describing a relationship and understanding that has always existed between fans and the object of their fandom. (At least in media fandom, most non-media fandom qualifies as a Close Culture.) As such, we hold that these principles (and the unwritten contract they encompass) have always been in effect, and fans’ past contributions to TFWiki were made under this understanding. (Asking people to explicitly ratify the license largely renders this distinction moot though.)

* Lagom measure – A Sweedish/Norwegian concept of “just the right amount.” (If you know Norwegians… this explains a lot about their personality.) Under the ZX License, a licensee will be granted the right to re-use a Lagom measure of content– an amount which does not prohibit use, but also does not encourage it. This means the unit size of a Lagom measure variable by situation… which heads off precedent-based license jailbreaking; just because X amount of re-use was Lagon for one situation does not mean it is automatically Lagom for another. The maximum ammount of re-use in a Lagom measure is understood to be greater than that permitted by Fair Use.
You could use a dozen pages of legalese to try to define how that works… or you could just fall back on the pre-existing Sweedish concept. Since our license is permissive and not restrictive… we can just cite the Sweedish concept.
Basic bounds are set via a philosophical statement to the effect that: “We think it is bad for the vitality of the Transformers brand to be re-using our content because that may cause it to become fixed and cease to grow and change… but recognize that some re-use is inevitable and wish to permit that without consequence.” …and you are essentially granting a blank check for content re-usage that still strongly encourages such usage to be minimal: Gross abuse of the definition constitutes bad faith and causes the license to lapse.

How content is used

For a hypothetical content re-user (such as IDW) that wanted to use our content under the ZX license, their re-use can be broken down as follows:
* Use under the ZX license. That is to say– usage rights afforded to content generated after the date of the ZX Licens’es adoption, or to prior content which was generated by users ratifying the ZX License and explicitly re-releasing their contributions.
* Use under principle of Zeloxenia. The balance of past contributions not signed-off-on, but whose usage in combination with the prior category up to a Lagom measure is implicitly provided for under the operative principle of fan guest-hospitality.
* Use under Fair Use. A portion of any remaining content not covered by the ZX license or beyond the size of a Lagon measure may be used as fair use.
* Any use more extensive than a Lagom Measure + fair use of the remainder must be licensed under the terms governing the remainder. (In most wikis’ case, this is CC-BY-SA.)

In short, if a re-user (such as IDW) takes shallow sips of our content, they are provided by 3 level of cascading protection before the question of CC-BY-SA license contamination can even come into play. You would have to drink a mighty gulp from our content to exceed all 3.

Structure

Finally, I believe the license structure would (roughly) break down into the following sections.

• License deed – (nonbinding) – plain-English statement of “what you get”
• Philosophical statement – (nonbinding) – Responsibilities fans have toward a brand
• Key ideas – (nonbinding) – Summary of legal concept, as above
• Application of Key Ideas – (nonbinding) – How we understand them to apply to our situation
• License code – (binding) – “consistent with the principles granted above, the copyright holders grant you use to…” Because the license hangs on pre-existing legal principles, we do not need to outline them in legalese; and any deficiency in our description in the prior nonbinding sections is moot, because that deficiency would not be ‘consistent with the principles.’ Again, this is only possible because we’re drafting a permissive license, not a restrictive one.
• Clauses – (binding) – Future versions and enforceability caveats; cribbed from existing licenses.
• Adoption – (binding) – Proviso to allow individual users to ratify this license beyond just the community doing so and thus explicitly re-release their prior contributions under the ZX license “to remove any doubt.”

Ugh. Anyway– that’s the reasoning and skeleton I’m thinking of. Most of the license is essentially a “statement of understanding” of legal principles which exist outside this license… no more binding than the Creative Commons “GUI” deed. The actual binding legal code is kept to an absolute minimum and essentially boils down to “you can use it under the relationship described above, if you exceed this or act in bad faith, your use lapses and you may incur CC-BY-SA consequences.” Because it would require truly heroic abuse to do so, this provides more-than-reasonable protection for a content re-user.

If each of those sections can be boiled down to a few sentences (and I’m fairly sure they can) then you have the basis for a serviceable plain-English license that covers our ass, covers Hasbro and it’s licensees ass, does not give away the farm, recognizes the rights of fans to exist, and codifies or recognizes the moral imperative of good conduct and good faith that should underlay fans relationship to the underlying brand.
Oh– and it doesn’t violate the terms of CC-BY-SA. Important that.
And it doesn’t weaken CC-BY-SA3, since the core principle of Zeloxenia, by fundamental definition, only exists in relation to media fandom– so the principles of the ZX License cannot be used as to pry other content out of CC-BY-SA– and actually (as outlined in a previous post) strengthens the CC license by relieving unresolved legal “pressure” at stress points where CC-BY-SA fails in relation to wikis.

But thank god most of that can go unwritten, because I’m exhausted just looking at it.

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.

10:19 am - If A Tree Falls in the Woods: Fair Dealing vs. Fair Use

Doing six rounds on copyright, I keep running into the concepts of fair use and fair dealing.

The United States (and Israel) have fair use, the rest of the world has fair dealing. The two concepts are legally distinct, but for practical purposes tend to be considered more-or-less equivalent, with a caveat that fair dealing may allow for ’slightly less’ than fair use does.

I think I’ve figured out the difference. And as usual… it’s all the Mormons’ fault.

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?

12:23 pm - DMCA vs. the World

Today I went to look up Grant Morrison’s 2000 DisinfoCon speech, because he explores several high-level issues that I think are philosophically relevant to my ongoing exploration of the Creative Commons.

So I was a little nonplussed to discover that the video– which was on literally dozens of online video sites… was missing. When media goes missing, sites usually don’t tell you why. Some sites pretended like the videos had never been existed, some retained the meta-data like descriptions and comments, but ditched the video itself. Some sites said simply that it had been removed due to a copyright violation. And exactly one site, (YouTube) provided any sort of followup info.

This video is no longer available due to a copyright claim by Hillsong Publishing.

Naturally, I assumed, Hillsong Publishing was The Disinformation Company, and they requested a takedown because they sell DVD’s of the ‘con. Regretable, but understandable. Or maybe Grant finally got someone to buy Pop Magic (a long-threatened book whose subject overlaps his DisinfoCon speech) and the publisher is protecting its interests. A bit more marginal… but still believable.

Turns out Hillsong Publishing is the publishing arm of Hillsong Church, and Australian megachurch with a somewhat questionable record of past actions.

So… fundamentalist megachurch issues takedown order against a speech they don’t own that happens to be about Shamanism, working magic, and how some groups (such as political parties, media multinationals, and organized religion) try to control what people can think.

The wonderful thing about the DMCA is that sites like youTube are required to comply with takedown requests, but there is no corresponding burden on the party making the request to establish that the video is a copyright violation.
In this case, Hillsong Church doesn’t even own the rights to the video– it seems they just claimed they did in order to get a video they disagreed with removed.

Abuse-prone as that system is… what really worries me is that 9/10 sites that this video was removed from gave no indication who had requested the removal, making it virtually impossible to tell when someone is abusing the system.
And that’s terrifying.