1. You should read Thomas Macaulay’s speeches on copyright.
These were conveniently quoted by SF writer and firebreathing blue-collar intellectual Eric Flint in Prime Palaver #4. Here’s Flint’s introduction:
These are two speeches given by Thomas Macaulay in Parliament in 1841, when the issue of copyright was being hammered out. They are, no other word for it, brilliant—and cover everything fundamental which is involved in the issue. (For those not familiar with him, Macaulay would eventually become one of the foremost British historians of the 19th century. His History of England remains in print to this day, as do many of his other writings.)2. Packbat boils down Macaulay.
I strongly urge people to read them. Yes, they’re long—almost 10,000 words—and, yes, Macaulay’s oratorical style is that of an earlier era. (Although, I’ve got to say, I’m partial to it. Macaulay orated before the era of “sound bytes.” Thank God.)
But contained herein is all wisdom on the subject, an immense learning—and plenty of wit. So relax, pour yourself some coffee (or whatever beverage of your choice) (or whatever, preferably not hallucinogenic), and take the time to read it. The “oh-so-modern” subject of “electronic piracy” contains no problems which Macaulay didn’t already address, at least in essence, more than a century and a half ago.
I should note that Macaulay’s position, slightly modified, did become the basis of copyright law in the English speaking world. And remained so (at least in the US) for a century and a half—until, on a day of infamy just a few years ago, the Walt Disney Corporation and their stooges in Congress got the law changed to the modern law, which extends copyright for a truly absurd period of time. Which—those who forget history are doomed to repeat it—is a return to the position advocated by Macaulay’s (now long forgotten) opponent in the debate.
Packbat has summarized Macaulay’s speeches on copyright as five bulleted points:
The copyright is not an innate right, but a creation of human government.Do make sure you read Packbat’s surrounding material.
A copyright is a form of monopoly, and therefore effectively a tax on the public—thus, it should be restricted to precisely as long a term as would make equivalent the harm done to the public by monopoly and the good provided by encouraging the creation of new works.
The prospect of income from a property a long time after one’s death is no incentive whatsoever to the creation of new works.
The probability that the persons for whom the author might have concern will own the copyright a long time after one’s death is minute.
The probability that the copyright owner might suppress the works, for whatever reason, is great.
The next two pieces are via The Lyorn’s Den.
3. Cesperanza: from Dear Fandom: Could You Please Stop Saying That?
I keep hearing fans say that they themselves think fanfiction is an illegal/infringing activity, and I don’t think that it is. There’s been no legal ruling that says that it is (and in fact, quite the opposite: whenever unauthorized literary rewrites or retellings have gone to court, they’ve been declared transformative, and these were for-profit works, not even our not-for-profit pleasure zone.) I think when/if fanfiction goes to court—if it ever does, which I don’t think it will—it will be declared to be transformative. There’s a huge difference between fanfic—where all the words are mine, that I put down in a unique order to convey a message that came out of my brain, even if the message is as simple as “Rodney and John are in love,” and something like music or video piracy, where the mp3 someone gives me is the exact thing that I would have paid for, and all mp3s of a song are identical. Now vidding is a trickier case, because the visual source is theirs and the music is theirs and the uniqueness is in the conjunction/editing, but even then I’m personally optimistic that the effort put into creating the unique message of the vid would be enough to get us a transformative ruling. And these arguments are being made right now about vidding and other forms of DIY filmmaking, by people who really do want to see this creative work legitimized. But fanfic—fanfic’s a much easier legal sell, IMO, and slash fanfic even more than gen (because the message is more transformative of the original source; i.e. I am rewriting and transforming work to better accord with my sexual orientation.) Now let me be clear when I say that the arguments I’m making are not about a right to profit, which I think is more complex (though not inconceivable; I think of Poppy Brite’s Beatles RPS novel Personal Jesus, for instance, or other literary rewritings like The Wind Done Gone, but never mind for now) but about our right to exist and write and share our work with each other as we’ve done for thirty-plus years now, and I don’t really think that’s legally assailable in any way.4. Legionseagle on Keith DeCandido and amateur law.
…There has been no legal ruling on the matter. There’s a hella strong case for transformative use.
This race has not been called, and so IMHO we shouldn’t act like it has until it HAS.
It would, of course be disingenuous not to admit that this essay was inspired by kradical’s recent essay on the difference between fanfic and profic. And the first thing I would like to make clear is that I have no quarrel with kradical.[Omitted: remarks on the average quality of tie-in novels.]
He has every right to express his opinion—indeed, from his perspective, in some of the areas where he works—tie-in novels—he is in one of the fields where fanfic does actually risk damaging his livelihood. That makes his opinion highly relevant. Mostly I do not subscribe to the view that fanfic damages profic—for reasons I expand upon below—but this is one area where, hand-on-heart I can say that I’m honestly, both as a lawyer and a fanficcer—definitely not sure. As to which, again, more below. …
I’m about to disagree violently and publicly with one part of his argument, but then, that’s my job. I’m a professional lawyer specialising in intellectual property law. You can, of course, claim I’m making this up, and that actually I’m a small cavalier King Charles spaniel called Hector living in Dortmund. As this is the internet neither us can prove anything one way or the other. But it will be simpler if you take on trust that I’m a professional IP lawyer living in England, just as I believe he’s a professional writer producing (inter alia) Buffy tie-in novels based in the US.[Omitted: remarks on the complexity of the laws relating to fanfic.]
And now we get to the bit of his argument about which I feel strongly:“First off, fanfic is illegal and profic isn’t. This is not an irrelevant concern—we’re talking about the theft of intellectual property.”
…I’m going to start by agreeing—mostly—with this part of his argument:[Omitted: remarks on the quality of some professionally published works.]Secondly, profic has professional oversight. While it’s true that there are good fanfic beta readers and that there are bad tie-in editors (and also bad tie-in editing jobs, which are often due to circumstances beyond anyone’s control), in general, I’m going to trust the judgment of a professional in the field. Nine times out of ten, you’ll get a better result from the pro than the amateur (which is why you generally hire plumbers to fix your toilet instead of doing it yourself). And way too much of the fanfic I have read is so obviously unedited it makes my teeth hurt—and I’m not talking about typos and minor grammar mistakes, I’m talking about global writing problems that no pro editor worth her salt would let fly for half a second. …Agreed. Pretty much completely agreed. … I’ve also got a lot of time for the point of view that says that there is some completely superb, spine-tingling, wonderful fanfic.
But I agree that in general and overall the average quality is generally higher in works which have had professional oversight.
So, given we agree that the the professional is “superior” over the amateur any day, perhaps it might be nice if an amateur writer and a professional lawyer got to look at the statement[Omitted: recollections of an excitable client.]First off, fanfic is illegal and profic isn’t. This is not an irrelevant concern—we’re talking about the theft of intellectual property.Bollocks, is my professional opinion of that.
The first thing this depends upon is the term “illegal”. One of the distinctions between the fan lawyer and the pro lawyer is that the pro lawyer is sensitive to precise uses of language. And “illegal” is a very sensitive word. …
The difference between tort—breach of private rights—and crime—commission of an offence designated as such by the State—is one of the key legal concepts which the pro lawyer understands and the fan lawyer does not—not unreasonably, given that a minimum of three years of undergraduate degree, a year professional training and one or two years on the job go to make a pro lawyer. Professional oversight, you see. Which means that we understand the difference between tort—a civil wrong—and criminal law. Fan lawyers often don’t. Which is why they come out with complete absurdities like “the theft of intellectual property”.[Omitted: a discussion of sodomy laws in the state of Georgia.]
Pro lawyers also understand that laws are territorial in character. That is, they differ from place to place. What is illegal (ie contrary to criminal law) in one territory may be perfectly legal or even conceivably mandatory in another (about the only examples I can think of where things are mandated in one territory and forbidden in others relate to food additives, but quite conceivably other lawyers will come up with others).
kradical talked about fanfic being “theft” of intellectual property. I don’t think—for reasons I’ll explain below—that it’s generally true in the US, certainly not in the UK. But talking about legality needs caution. Are you a sex criminal? Very probably—under the law of Georgia.[Omitted: further remarks on the average quality of tie-in novels.]
All intellectual property rights are negative in character. That is; they are the right to forbid someone to do something which, without your possession of the right, would not be forbidden. So, conceptually and under English law the “theft” of intellectual property means “to permanently deprive someone of the right to deprive you of the right to do the acts circumscribed by the right”. Got that? No; I thought you hadn’t.
The basic point is that you cannot “steal” an intangible right. You can—given a following wind—deprive someone of all or part of the economic benefit appurtenant to a right, but where’s the fun in that? More to the point, one has to prove both the benefit and the loss. There is—possibly a relationship with tie ins, though I think tie-in authors would have difficulty proving that their loss of income was as a result of fanfic rather than …
For all the reasonableness, ultimately things come down to economics. Which economic rights will the law protect?[Omitted: something-or-other involving the Duke of Devonshire.]
Mostly, intellectual property is not primarily protected by the criminal law (there are some criminal offences of counterfeiting and the like. Fanficcers don’t do them through fanfic, though “fans” may do (the two groups overlap inevitably, though are not contiguous) eg sharing episodes not yet available in their area via peer to peer), which is why referring to things as “illegal” immediately distinguishes the pro lawyer from the fan lawyer. Fan lawyers cannot apparently draw the distinction between public law—the one where the public interest is key—and private rights. The infringement of public rights is a crime and the State is interested. The infringement of private rights is a tort, and the State isn’t interested in doing more about torts than giving its citizens access to a more-or-less functioning … court system to allow them to slug such matters out privately between each other.
Private rights—those one sues to protect—are the issue in most fanfic cases. The Law is not, in fact, interested in enforcing IP rights by and large, and people like MPAA who claim they are are lying to you (I am increasingly reaching the point of view that I will not go to movies until MPAA and its affiliates stop being idiots. Tonight at the cinema—after, I hasten to add, I had paid—there was a sign “Camcorders …are illegal. Odeon reserve the right to randomly body and bag search for the above items”. No, I’m sorry. “Reserve” implied they had the right in the first place. Well, they bloody don’t have it by the general law and if they were trying to get it by contract we were in before the notices came to our attention, so too flaming late, mate. Not that I was planning to record the film—and if they’d told me I couldn’t do that, I would have concurred. It’s just that I see a difference between someone saying ‘Please don’t take a camcorder into this theatre’ and someone shoving a latex-gloved finger up my arse to check I hadn’t put one there, and MPAA apparently don’t. It reminds me of a bar in Manchester—happily now defunct—which used to have a sign at the door saying “To ensure customer satisfaction customers may be randomly body-searched.” Now, I ask you; how satisfying would you find it to be randomly body searched while sitting having a quiet drink?) …
…You can compare copyright infringement to trespass but not to theft. You might as well compare it to other criminal offences as to theft: “Fanfic is illegal. This is not an irrelevant concern. It is the keeping of an unlicensed slaughterhouse of intellectual property.”5. Me, on the wording of disclaimers.
Pro law has professional oversight. We are required to read books on law, pass exams, work with our peers. Admittedly, that still doesn’t stop a awful lot of pro lawyers sounding like muppets, but at least they’re trained muppets. I realise, of course, that I am not a published author of fiction. And that may make my views on the fanfic v. profic debate less valid than it would obviously be. But kradical is not an IP lawer. His views on that aspect of the debate are, by the same token, less valid than mine. In fact, I’ll make a fair offer. If professionally published writers will stop publishing (on the internet) absolute God-awful nonsensical bollocks about law, I’ll stop writing fanfic. Deal?
This is my own nominee to the list of habits fanfic writers should break: I want them to stop sticking badly worded disclaimers onto their stories. The samples below are grouped by error. Nothing is implied by the fact that they’re all Joss Whedon-related. I arbitrarily used those because I already knew where to find them.
I. Who owns this story?
Sample disclaimers: None of this stuff belongs to me. :: Everything related to Buffy the Vampire Slayer or Angel is owned by Joss Whedon, Mutant Enemy Productions, FOX, UPN, and their partners. :: All things Buffy belong to Joss Whedon/Mutant Enemy. :: I don’t own anything, this is strictly for fun, Joss and someone else owns all this. :: Joss Whedon and Mutant Enemy own all. :: The usual. All belongs to Joss and Mutant Enemy, and naught to me. :: I don’t own anything. Joss owns it all, damn him! :: I own nothing.Wrong.
The fact that a person or organization owns the copyright to a work doesn’t mean they own everything related to that work. It just means they have the legal right to keep others from making use of it. If some third party writes a new story which uses material covered by that copyright, the new story can’t be published or filmed or made into a game (unless the copyright holder grants them a license to do so.)
However, contrary to all-too-common belief, the copyright holder has no claim on that new story. The story itself—that specific configuration of words—belongs to the author. So does the plot, if it doesn’t infringe on the copyright. So do any other non-infringing original elements. So if you’re a fanfic writer, please stop saying you don’t own your own work.
I’m not sure disclaimers have any use or legal standing to start with, but if you must use one, consider saying something like:
The BtVS characters belong to Joss Whedon and associated companies. The story itself belongs to me.II. Noncommercial status
None of these characters belong to me. Only the words do.
What’s Joss Whedon’s is Joss Whedon’s, and the same goes for Mutant Enemy; but what’s mine is mine, including the original elements in this story and the words I’ve used to tell it.
Note: I’m less sure of myself on the rest of these topics than I am on the question of who owns what.
Sample disclaimers: I do not own any of the characters in this story and make no money off them. :: I own nothing of Buffy and receive no profit from this story. All belong to Joss Whedon and Mutant Enemy. :: All original Buffy the Vampire Slayer and Angel the Series characters belong to Joss Whedon and ME (Mutant Enemy). I don’t own anything but the characters I create and the twisted plots these stories are set in. I’m not gaining any profit from these stories and no copyright infringement intended. :: None of these characters (with the exception of original ones) belong to me—I’m just borrowing them, and am making no profit from doing so. This story was created without permission as fan fiction, for entertainment purposes only.As far as I know, that’s legally irrelevant.
Here’s how it was explained to me: Copyright infringement is copyright infringement, whether or not you’re making money from it, or intend to make money from it, or intend to commit copyright infringement, or intend anything beyond entertainment. What matters is that you used, without license or permission, material that’s covered by someone else’s copyright.
Saying “This is just for fun, I mean no harm,” may influence a kindly-disposed legal department to send you a letter telling you to knock it off, instead of sending a cease-and-desist to your ISP, but it has little or no legal standing.
Firefly is the intellectual property of Twentieth Century Fox and Mutant Enemy. This original work of fan fiction is Copyright 2004 Distraction. There is no profit being made, so it’s protected in the USA by the fair use provisions of the Copyright Act of 1976.Whoever wrote that disclaimer had studied the Copyright Act of 1976, but I’m not sure the fair use provisions do what she thinks they do. If Charlie Petit’s around, we’ll ask him what he thinks.
I do not own the characters used within this story, nor the lyrics to the songs I use. The characters belong to Joss Whedon, Mutant Enemy, etc. The songs belong to Sarah McLachlan and Will Jennings. Of the poems used within this story, the only one I wrote, is the one titled ‘If Only,’ which can also be found at this site. The poem Goodbye was written by Julia L., only a portion of it is used. She runs the Tangled in Destiny website, the poem Set it Free, does not belong to me, I got it off a collage someone sent to a list I subscribe to.Acknowledgement is not permission. If you have permission, say so.
If you don’t have permission, consider not calling attention to the fact that you’ve used song lyrics. ASCAP’s a lot likelier to come after you than Hollywood. Even better, consider leaving the damn lyrics out entirely. I’ve seen maybe one in a hundred songfics that worked the way their authors intended, and those were parodies.
But before you do anything else, go and read Macaulay.