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FanLIb: What Are Your Thoughts?

Hi everyone,

I'm new to this community and I have a question for those members with legal expertise.

What are your opinions on FanLib.com?

Some of you may or may not have heard about it, but it's avidly being discussed over at metafandom  and in many people's personal journals.

It's a new for-profit site for posting fanfiction from any fandom that was founded by a non-fandom group. Recently launched, it has many people on edge because it seems like these businessmen are trying to profit off of the hard work of fiction writers. It's catapulting fandom into the spotlight without actually asking us if we wanted to be there in the first place or understanding fandom at the most basic of levels. They have tried to engage members of fandom, but in doing so have really only shown their ignorance and insensitivity about the cares of fandom.

Their Terms of Service seem to be worrying some people the most. It's worded very sneakily and deliberately, but it effectively says, among other things, that you don't have a right to ask for royalties if they, for instance, decided to publish an anthology of fanfiction and sell it. This also means you lose your rights to your work. Furthermore, because they are such a mainstream website and are encouraging people to post fanfiction about works to which they do not hold copyrights, it seems as if they are inviting lawsuits and C&D orders. I don't think many users know this however because they state that they are backed by many big businesses and publishing houses like Harper Collins. They create a false sense of comfort without actually backing this up with facts. Also, if you do get sued, the TOS allows them to wash their hands of you.

This could be a case of fandom collectively overreacting and a new company starting off on the wrong foot, but it really doesn't seem like that all.

There are many other objections to the site being voiced, but I was just wondering what the lawyers in this comm thought of the it, its TOS, and how much of a legal risk fan writers would be taking if they posted their work on the site.



May. 21st, 2007 04:45 pm (UTC)
This has "showdown" written all over it.

Yeah, that was my take on it from the beginning, and the constant braying "but FF.Net does it!" hasn't convinced me. FFN was not designed to make money, and LJ and Yahoogroups weren't designed to profit from copyright infringement.

If fanlib cuts and runs in the middle of a suit, or just complies with C&D's and hangs the authors out to dry, eventually an IP owner is still going to push the case through to get an answer once and for all, and that answer will, I have sad confidence, not be to the benefit of the fan community.

This is possible, although I think it's on the less-likely end of the spectrum of possibilities. Which doesn't mean you're wrong, of course. But I can hope you are.
May. 21st, 2007 04:49 pm (UTC)
Do you think I'm wrong in that you don't think an IP holder will push the suit, or that you don't think the courts will make a ruling adverse to creators of fan fiction?

If the latter, while I still think I'm right, if I'm wrong, I think about twenty minutes after the ruling comes down (allowing for dissemination time) Disney will be on the line with its pet Senators saying, "You know how we agreed that the copyright on "Steamboat Willie" would never run out so nobody could glom onto it? There's a new wrinkle. Flatten it."

And lo, it will be done.

May. 21st, 2007 05:15 pm (UTC)
Sorry, screwed the coding--deleted and reposted.

I think it would take a particularly egregious and offensive situation for an IP holder to push the case all the way to litigation--which is not to say that kind of fic isn't out there, but the circumstances would have to be perfect. Say, chan bdsm using characters from a children's movie or novel franchise, plus actual profit being made. I suspect Fanlib won't be supporting chan, and damn little bondage or kink!fic, so it seems unlikely it'll happen. But, well, I've been wrong before, I could be wrong again.

As for the courts, well, who knows. I mean, sure, we have tests, but the facts are going to vary widely depending on the circumstances. My personal take is that the farther a story is from the IP's original presentation, the more protected it's likely to be, so celli's SGA slash NASCAR AU or janissa11's HP/NCIS MPREG crackfic is in less danger than, say, someone in Stargate SG-1 fandom rewriting the episode 'Beneath the Surface' to include a Jack/Daniel relationship instead of a Jack/Sam one (that was either destina or merryish, I think).

So, in a sense, the type of story that gets an IP holder to act may not be the type of story a court would be most likely to find is in violation of copyright. Or so I can hope. It'll all depend on the type of fic in question and the personal squick-level response of the judges making the ruling.

But I definitely agree that it's in the power of the big corporations like Disney to get Congress to close the Fair Use loophole we've all been relying upon. So parody will be fine, and review and comment will be fine, and transformative uses will be illegal. Oops. And then, in my fantasy, it gets kicked to the Supremes, who slap Congress upside the head and point out that copyright is supposed to protect creativity too.

IANAL(anymore), so take all my comments with a handful of salt...
May. 21st, 2007 05:33 pm (UTC)
I am more than a little concerned about the HCMBL principle here... while I agree that your argument that the worse the story the less infringing it probably is is logically sound, I'm afraid we'll get the opposite result - the worse the story, the more inclined the courts will be to find a way to stop it. We could also have all sorts of creative new arguments appear. For instance, what could a clever lawyer do with a Gilliam v American Broadcasting Lanham Act attack, or a famous trademark dilution/devaluation approach?

I am very curious, with a certain level of dread, to see what happens when the Supreme Court gets a case on all fours regarding the Copyright Clause and its specification that rights must be secured "for a limited time." Given the number of strict constructionists on the Court, my ideal outcome is them saying, "No more extending copyright terms post facto. The term at publication is the term you get." This of course will result in Congress making the term ten billion years, but at least for a hundred years or so we'll have copyrights actually expiring and maybe if the world doesn't end they'll revisit the issue.

Alternatively, the US could implement Eurozone-style "moral rights" legislation directly. THAT would be all kinds of fun.

May. 21st, 2007 05:50 pm (UTC)
I'm afraid we'll get the opposite result - the worse the story, the more inclined the courts will be to find a way to stop it.

Yeah, hence the note about squicking the judges. I'm thinking about Justice Kennedy's ruling in the abortion case that just came down, and seeing him faced with, oh, say untrue_accounts' Spider Bites on All My Lovers, which isn't slash, but does have fisting and pegging in it. (Not that I want Mely to ever appear before the Supreme Court!) I can't even imagine his response, but I know it wouldn't be good. Good legal arguments get trumped by emotional responses all the damn time.

Given the number of strict constructionists on the Court, my ideal outcome is them saying, "No more extending copyright terms post facto. The term at publication is the term you get."

Quite possibly, which, yeah, I see the downside of that.
May. 22nd, 2007 03:45 pm (UTC)
I am very curious, with a certain level of dread, to see what happens when the Supreme Court gets a case on all fours regarding the Copyright Clause and its specification that rights must be secured "for a limited time."

IANAL (/disclaimer), but in what way didn't Eldred v. Ashcroft qualify? (That's the long PDF, sorry, here's the Wikipedia summary for us non-lawyers). I wish they'd come up with a different decision, but it looked like a fairly clearcut one?
May. 22nd, 2007 04:26 pm (UTC)
May. 22nd, 2007 03:19 am (UTC)
I'm sorry to jump in, and I feel as though I'm harping on this point a little obssessively, but what the heck...

FanLib's test case was a fansite for the Showtime/CBS series The L Word. Hilary Rosen of the RIAA was named president of that new company, OurChart.org. Jon Moonves, brother of Les Moonves, CEO of CBS, is on the FanLib board.

Hilary Rosen's done everything in her power to criminalize fair use. Les Moonves is way on board with strategies to monetize fandom. So whatever's going on here, it's not ignorance of copyright or naivete about fanfic's legally fuzzy status, imo.

The notion that FanLib's a test-bed aimed at forcing cases that'll sort legal (i.e., corporate-controlled/sanctioned) from illegal (all the rest) is not out of the question, also imo. In the meantime, it's also a possible way of identifying which "properties" are ripe for L-word-style treatment, which made the Showtime folks a lot of money, based on stuff the fans did for free.

(Links for the above available at life_wo_fanlib, set up by stewardess to collect discussion links.)
May. 22nd, 2007 03:22 am (UTC)
Gah. Meant to say, Jon Moonves, heavyweight entertainment industry lawyer and brother of Les Moonves, is on the FanLib board.
May. 22nd, 2007 03:40 am (UTC)
You know, I had a very interesting discussion at work today about this, and people feel that no copyright holder in their right mind would push that suit. I think if YouTube can keep fanvids up, fanfiction isn't in danger. Supposedly YouTube isn't taking down anymore fanvids. While it's not clear at this point that fanvids are safe, I do think that battle will be fought before a fanfic battle, and that FanLib isn't going to have a legal impact.
Also, as for Congress, someone made the very interesting point that Hollywood lobbys Congress every year for stronger copyright laws, and the best they've managed in the post-DMCA is harsher penalties for pre-release violations. They're spending tons and tons of money and getting nothing for it. Senators are just not willing to pass any laws they suspect their own children of breaking. That wrinkle will just get bigger.
May. 21st, 2007 05:52 pm (UTC)
FFN may not have been designed to make money, but for at least five years, they have - and as a matter of law (in the US at least) it's very possible that a court wouldn't see a difference.

Believe me, I see the "moral" difference between one and the other, but in a court of law, the moral issue isn't important, whereas the ability to argue by analogy in terms of actions and what the law says is vital.
May. 21st, 2007 06:42 pm (UTC)
Oh, I agree that whether somebody claims to be for-profit or NFP would cut no ice with a court. I was more referring to its effects on the decisions of the rightsholders. Most of them are probably pretty practical, but for others it might be the last straw. "Okay, now they're actively trying to MAKE MONEY with my IP. Release the Hounds!"

May. 21st, 2007 09:05 pm (UTC)
Also, doesn't their other business have an impact? They organize events and contests for some of their backers. This is legal and doesn't violate anyone's copyrights, but isn't the success of these events influenced by the fact that fanfiction writers are participating in them? If FanLib didn't have us posting on their site, they wouldn't have a pool of willing contestants to support the other business. The money is coming from more than just the ads.
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