quicksilvereyes ([info]quicksilvereyes) wrote in [info]fandom_lawyers,
@ 2007-05-20 18:58:00
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Current mood: aggravated
Entry tags:copyright, fair use, terms of service, terms of use

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 [info]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.

Thanks!


(Post a new comment)


[info]stmarc
2007-05-21 01:07 am UTC (link)
I am an attorney, but this is not legal advice, etc.

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.

They have the right to use Submissions "in connection with the Website."

If they published and sold an anthology at any more than reasonable cost of distribution, I know lots of lawyers (including your humble correspondent) who would be slavering and baying to sue for breach of license. I think they'd have a tough row to hoe if they argued that selling a for-profit book was just a form of marketing a website.

OTOH, if they print advertising materials or prepare electronic promotional materials containing your work, you're right, they don't have to pay you. If you don't like it, don't publish there. Simple as that.

This also means you lose your rights to your work.

The license they take under the TOS ("a non-exclusive, worldwide, and royalty-free license to use, reproduce, distribute, and display the Submissions in connection with the Website") is, in my opinion, not unreasonable. It keeps somebody from suing them because their Harry Potter Does Kit crossover fic accounts for 10% of all page views on the site and they should get a cut. It expressly disclaims assignment, it's a license.

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.

The latter doesn't bother me, but I agree with the former. For instance, their FAQ specifically states that you can terminate their license with regard to a specific work by removing it from the site. The TOS (which does contain an integration clause) does not say that. I'd call that a very unfortunate failure to synchronize two different documents at best and deliberately misleading at worst.

M

(Reply to this) (Thread)

[info]quicksilvereyes
2007-05-21 02:10 am UTC (link)
Thanks for responding so quickly!

I think they'd have a tough row to hoe if they argued that selling a for-profit book was just a form of marketing a website.

This may be true, but who would defend the fan who went against them? With other for fans/by fans websites, we're all pretty much on the same (broke) footing. They, on the other hand, are backed by some very big wigs. Maybe I'm underestimating our power or the variety of people fandom attracts, but I just can't envision one of us going up against them successfully, whether because of a lack of funds or the uncertainty regarding the legality of fanfiction.

If you don't like it, don't publish there. Simple as that.

Oh, I certainly won't be publishing my works there. I'm not altogether convinced they're Evil either, they just want to make money. I'm just worried that even if I do sit in my own little corner of fandom minding my own business that their existence will attract negative attention to all of fandom if not just their own site. Maybe this is an overreaction. ;)

I've been following a thread here between a pretty neutral fan and the co-founders. The general consensus has been that the site will attract unwanted, negative attention for fanfic writers, but David Williams, one of the co-founders, says that fans might be more protected because of the site's affiliations with big name corporations. He said: We're 100% with you morally and I'd strongly assert that you're not being penalised for posting here. Your status is at least as good as it is anywhere else. And we think a lot better, *because* of our entertainment ties...

Do you think this claim holds any water? Would corporations or irate authors really back off if they saw the impressive list of backers. They may have "entertainment ties", but they don't hold copyrights to all of the original works on the site. And is it possible to sue the fan while FanLib walks free even if they host the fic?

I'd call that a very unfortunate failure to synchronize two different documents at best and deliberately misleading at worst.

Exactly, I guess we'll just have to wait and see which it turns out to be.

Thanks again for the input! I hope you don't mind all of my questions. ;)

(Reply to this) (Parent)(Thread)

[info]rubymiene
2007-05-21 02:30 am UTC (link)
who would defend the fan who went against them?

I imagine there are a number of fans who are lawyers and would be willing to take such a case pro bono (like me). More importantly, I think something like that would attract terrible press.

Would corporations or irate authors really back off if they saw the impressive list of backers.

No. But I think the point is that their backers are a 'safe list'.

And is it possible to sue the fan while FanLib walks free even if they host the fic?

Of course. That's what they're trying to do with the TOS, but I don't think this is any different from any other fic archive. But 'suing' the fan is going to pretty much just consist of ordering you to take down the story, which is what happens anyways.

(Reply to this) (Parent)(Thread)

[info]quicksilvereyes
2007-05-21 02:55 am UTC (link)
I imagine there are a number of fans who are lawyers and would be willing to take such a case pro bono (like me).

Very good to know. ;) Not that I plan on getting in any trouble.

The 'safe list' thing is understandable, but it lends false comfort to all users when really it's just users who fanfic works that people on the 'safe list' own.

(Reply to this) (Parent)(Thread)
(no subject) - [info]pinkfinity, 2007-05-21 05:45 pm UTC
(no subject) - [info]quicksilvereyes, 2007-05-21 08:42 pm UTC

[info]carmarthen
2007-05-24 02:54 am UTC (link)
No. But I think the point is that their backers are a 'safe list'.

Not a lawyer, but I think that's not quite right--a publishing house might back FanLib, but that doesn't mean the authors who use that publishing house wouldn't sue (unless the publishing house starts inserting a clause in their contracts, which seems unlikely). So I think that's more of the false sense of security.

(Reply to this) (Parent)

[info]stmarc
2007-05-21 03:17 am UTC (link)
Incidentally, rubymiene pointed out that I made a mistake in reading the TOS and the disparity I alleged does not exist. My apologies. (This is why when I read contracts for my actual clients, I read them, think about the problems, and then read them again a little later to see if the problems I saw actually exist. :) )

That being said, to generally answer your questions, yes, even if you publish on this Big Corporate Website Backed By The Entertainment and Publishing Industries, you are the one who is going to get sued, and what's even more fun, is now if they get sued, you will also be sued by them. Double jeopardy, anyone? :) They'll have a harder time arguing the service provider defense (that makes it very hard to sue, say, Yahoo! for infringing material on somebody's personal website) because their business is publishing material which by its very nature is probably infringing to some degree. So they'll get sued and they can pass the costs of suit on to you!

Of course, in the real world, most rightsholders know that there's no point suing fanfic writers for zillions of dollars and they're going to settle, most of the time, for your C&D. In a way, you've assumed additional liability by using their site. Say a publisher sues them on behalf of several big rightsholders. The publisher isn't going to sue Mary Sue Ficwriter, they'll just ask her to stop publishing. Don't aggravate the customers, sort of thing.

But BCWBBTEAPI is an entity, and it has money. Let's sue 'em, says the publisher! Now BCWBBTEAPI can come after YOU for your "share" of what it had to pay the publisher. They're out money, and unlike the publisher, they don't still have the rights they sued over. So why not chase you? If you have anything, it could even make them some cash back.

The more I think about this, the worse it gets, frankly.

M

(Reply to this) (Parent)(Thread)

[info]quicksilvereyes
2007-05-21 04:56 am UTC (link)
All I can say is UGH!

I know there are fans out there, especially new and younger ones, who are drawn to the sparkliness of the contests and money. I wouldn't have known about this site or the kerfluffle it's caused were it not for [info]metafandom. I don't think I would have joined if I had, but there are many uninformed fans out there who will just go along with it. I really hope FanLib gives up and leaves before someone gets sued.

(Reply to this) (Parent)

[info]mitsuhachi
2007-05-24 01:28 am UTC (link)
It may be that no one is still looking at this- since it's kind of old, but another awesome LJ'er ([info]house_illrepute) brought to my attention another issue, that I thought I'd see if you had any takes on?

You've said that Fanlib puts users at "double jeopardy" with regards to getting sued? Is it still possible, under a breach of contract, for fanlib to sue you in the same way, even if they removed the "defend" from their "defend, indemnify, and hold harmless" section?

(Reply to this) (Parent)(Thread)
(no subject) - [info]stmarc, 2007-05-24 01:43 am UTC
(no subject) - [info]mitsuhachi, 2007-05-24 01:48 am UTC
(no subject) - [info]elisi, 2007-05-25 10:11 am UTC

[info]thesilentsenshi
2007-06-22 06:09 am UTC (link)
I know this is an old thread, but I only recently found this comm. I'm curious. Seeing as the people using their site are generally young people easily swayed and still naive, AKA kids who have no source of income, I wonder how attacking the writers would turn out in the end, from a legal stand point. The child was mislead into feeling safe by the site, and I'd think quite a few parents would definitely fight back if suddenly told their child was not only decieved into a false sense of security, but then told they'd have to pay because of that fact. If, by some chance, the parents of children affected fought back, how would that be viewed from a legal standpoint? WOuld they even have any ground to stand on to defend their child? Generally, deceiving kids who don't know better is a huge deal, especially when it comes to the net. I'm wondering what would happen in this scenario. Would it alter the effects of the court case at all? I mean one could argue it may make people sympathize more with the writer who was decieved. Or so I'd hope.

I have no children, and refuse to use the archive, but it does worry me that I know a lot of children will easily believe what the site tells them, without really understanding the legal issues noted in the TOS, and how the TOS and FAQ fracture from eachother is also purposely confusing. Or seems so to me. What you said about the fan writers being attacked really hit home the fact that doubtless a good number of the users using that site are going to be of the younger/more inexperienced variety. How do you go about sueing a child like that, when the child wasn't the one actually making money off of the copyright royalties. It's not like the kid was pirating mp3s, they were just exploring their creativity. I feel very sad when I think of how this will all turn out. Especially after hearing your views on the matter. Thank you for sharing them.

(Reply to this) (Parent)

[info]rubymiene
2007-05-21 02:16 am UTC (link)
Actually, though the TOS says:

"However, by submitting the Submissions to FanLib, You hereby grant FanLib a non-exclusive, worldwide, and royalty-free license to use, reproduce, distribute, and display the Submissions in connection with the Website. FanLib may prepare derivative works from Your Submissions solely for the purpose of promoting and showcasing them in connection with the Website...."

It also says at the end of that paragraph:

"The foregoing licenses granted by You terminate once You remove or delete a Submission from the Website."

So it looks like their TOS and FAQ do are in sync.

While they might be luring fans in to a false sense of security by referencing their partners and maybe leading fans of authors who do not allow any fanfiction derived from their work (e.g., Nora Roberts) into thinking they can now post, I don't think this site puts fic writers at any more legal risk than posting at FFN would. They'd get the same C&D letter.

I do have a lot of personal objections to a for-profit fanfiction archive, and I think similar feelings in fandom will keep FanLib from being anything but a waste of venture funds.

(Reply to this) (Parent)(Thread)

[info]quicksilvereyes
2007-05-21 02:51 am UTC (link)
Thanks for clarifying the TOS. I do think it could be worded in a better way, though.

I don't think this site puts fic writers at any more legal risk than posting at FFN would. They'd get the same C&D letter.

I guess the point is that shouting and whispering are two different things, but either way copyright holders can still hear what we're saying (and writing), lol.

I also have a lot of other problems with the site that have nothing to do with the legal issues. I just thought I'd stop by to see what you guys thought about it.

Thanks!

(Reply to this) (Parent)(Thread)

[info]pinkfinity
2007-05-21 03:47 pm UTC (link)

I guess the point is that shouting and whispering are two different things, but either way copyright holders can still hear what we're saying (and writing), lol.

But I don't think that, from the perspective of TPTB, there's been any whispering for *years*.

The execs all know about fandom. Studios and distributors like Universal and WB and the BBC work directly with fansites, including those that host fanfic and fanart, to sponsor contests and events and to promote their products - and this has been going on for years.

The current incarnation of FanLib does generate many issues but "it'll tip TPTB off to the existence of fanfic" isn't one of them.

And as someone said earlier, lawyers have given their time often over the years to defend fansites - [info]rivkat helped RestrictedSection.org a few years ago when WB sent them a C&D, and RS.org did not cave into the WB demands. I've worked with WB myself (again, pro bono) on fanfic issues on behalf of FictionAlley and they've never been threatening or frightening to me, but since I've been doing IP law since 1996, they wouldn't have an easy time pushing me around. There are IP law clinics at Harvard and American, and the Chilling Effects project is also out there to defend fanfic writers with arguments about derivative works, noncommercial use, etc. And there's also doctrines like laches and implied license, at least in the US, which would allow lawyers to argue that the existence of ads on FFN and other fansites for years makes it difficult if not impossible for TPTB to go after new sites that are doing the same or a similar thing.

(Reply to this) (Parent)(Thread)
(no subject) - [info]quicksilvereyes, 2007-05-21 09:10 pm UTC
(no subject) - [info]rez_lo, 2007-05-22 03:09 am UTC
(no subject) - [info]rez_lo, 2007-05-22 03:10 am UTC
(no subject) - [info]quicksilvereyes, 2007-05-22 03:53 am UTC
(no subject) - [info]hulamoth, 2007-05-26 09:06 pm UTC
(no subject) - [info]pinkfinity, 2007-05-27 12:16 pm UTC

[info]stmarc
2007-05-21 03:06 am UTC (link)
How in the bleeding blue blazes did I miss that?

I should note that while you're entirely correct and you've demonstrated that my assertion of out-of-sync language was wrong, I was looking for it in the Termination section. Where, obviously, it is not.

I think that setting it up this way is an invitation for trouble later. Termination clauses are, IMO, one of the most important parts of a license agreement in that it's vital to keep track of who has what rights when and why. Enabling unilateral termination without notice and with no safe harbor (the liability limitation language later in the agreement notwithstanding) is like wearing a "Kick Me" sign at a convention for juvenile delinquents. If they print up ten thousand flyers to distribute at a major Con with a large excerpt from one of my stories, and I pull my story two days before, under a strict reading of the TOS, they're screwed. If the message doesn't get to the marketing people in time and they distribute, they've just committed ten thousand acts of copyright infringement. (Oversimplifying horribly.) Section 6 paragraph 4 is really overreaching and while they may think they've capped damages, I think that in any case where there's enough money to be fighting about, it is vulnerable to attack on several fronts.

I agree with your latter theory. I think this is a case of venture capitalists desperate for something to venture into. It's a bad idea, IMO. Of course, I'm a lawyer, not a marketing expert, so what do I know?

M

(Reply to this) (Parent)(Thread)
(no subject) - [info]msilverstar, 2007-05-21 06:10 am UTC
(no subject) - [info]quicksilvereyes, 2007-05-21 07:59 am UTC
(no subject) - [info]msilverstar, 2007-05-21 02:56 pm UTC
(no subject) - [info]stmarc, 2007-05-21 01:58 pm UTC
(no subject) - [info]msilverstar, 2007-05-21 02:59 pm UTC
(no subject) - [info]rubymiene, 2007-05-22 03:48 am UTC
(no subject) - [info]icarusancalion, 2007-05-22 04:16 am UTC

[info]dduane
2007-05-23 06:17 pm UTC (link)
...their Harry Potter Does Kit crossover fic...

Uh oh. I better get Kit a new wand. (snrk)

(runs off) ;)

(Reply to this) (Parent)(Thread)

[info]stmarc
2007-05-23 07:31 pm UTC (link)
*total fanboy trance* OMGDianeDuanereadmypostOMG!

And, in all seriousness, as the parent of an autistic child, I would like to thank you for your work A Wizard Alone. While I won't say it made me happy,* I did find it extremely moving and I'm glad that people can discuss the issue with such depth in well-written fiction.

M

*I get kind of pissed off when I read about miracle cures, but it's not the fault of the storyteller, it's just me being bitter, don't mind me.

(Reply to this) (Parent)(Thread)
(no subject) - [info]dduane, 2007-05-23 07:44 pm UTC
(no subject) - [info]stmarc, 2007-05-23 09:03 pm UTC

[info]stmarc
2007-05-23 07:32 pm UTC (link)
Oh, and Kit doesn't need a new wand to handle that spaz. *hmph*

M

(Reply to this) (Parent)(Thread)
(no subject) - [info]dduane, 2007-05-23 07:48 pm UTC
(no subject) - [info]stmarc, 2007-05-23 08:19 pm UTC
(no subject) - [info]dduane, 2007-05-23 08:22 pm UTC

[info]emmuzka
2007-05-23 08:30 pm UTC (link)
Sorry to jump in the conversation late, but:

They have the right to use Submissions "in connection with the Website."

If they published and sold an anthology at any more than reasonable cost of distribution, I know lots of lawyers (including your humble correspondent) who would be slavering and baying to sue for breach of license.

It seems like they have a *very* different idea of what the "in connection with the Website" means. In their adverticing leaflet they write:

A FAN'S ULTIMATE REWARD
When the work of the fans is complete, the ultimate prize is to actually produce and distribute their creation.

Air on television alongside regular programming
Publish as a book or part of an anthology
Distribute as DVD-extra, theatrical trailer, or online à la BMW Films
Stream on the web as animation
Print in magazine as part of a sponsored ad section
Ultimately, create a fan-powered event series

With stating things like that to the investors, who can honestly think that the fiction writers pull-out will work?

(Reply to this) (Parent)(Thread)

[info]stmarc
2007-05-23 09:06 pm UTC (link)
That's an ad for the fan event promotions they sell to IP rightsholders. While I agree that it's something to keep in mine when considering their long-term goals, it doesn't really contradict the TOS. If a fan pulls a story, or won't participate in a fan event, they'll have some explaining to do to the rightsholder, but it won't affect the fan's rights. They couldn't cite this as relevant to the question of what "in connection with the website" means very effectively (especially with that pesky integration clause.)

M

(Reply to this) (Parent)
I'm not a lawyer, but I had to comment..
[info]yrena
2007-05-21 03:47 am UTC (link)
Are these people insane? There's enough liability posting fanfiction on FF.net, Mediaminer.org, and the various other methods WITHOUT adding money into the picture.

Besides, why would anyone honestly pay to access a site with fanfiction when you can't take two steps without running into it for free?

(Reply to this) (Thread)
Re: I'm not a lawyer, but I had to comment..
[info]quicksilvereyes
2007-05-21 04:40 am UTC (link)
You don't pay to access the site. They make money from the advertisements and helping their corporate backers organize events. I think they see themselves as the link between fans and the people with money.

(Reply to this) (Parent)(Thread)
Re: I'm not a lawyer, but I had to comment..
[info]yrena
2007-05-21 10:52 am UTC (link)
Ah, I misunderstood that, but it's still a really bad idea.

(Reply to this) (Parent)(Thread)
(no subject) - [info]pinkfinity, 2007-05-21 03:48 pm UTC
(no subject) - [info]yrena, 2007-05-22 01:13 am UTC
(no subject) - [info]mercuryblue144, 2007-05-23 03:21 am UTC

[info]stmarc
2007-05-21 03:50 pm UTC (link)
Reading some of the metafandom links and contemplating the idea a bit more leads me to one inescapable conclusion:

If this thing doesn't tank, and tank fast, it's going to get very ugly, legal-wise.

They've taken off the legal fig-leaf that even places like ff.net or whatever seem to have employed - that they weren't out to profit from other people's IP. Maybe they actually did do that, but they weren't claiming to be trying to do it. That is the difference between a C&D to an obnoxious pest, and a full-fledged, you-don't-even-want-to-know-what-the-Copyright-Act-is-going-to-do-to-you willful infringement suit to a thief. At least, I hasten to add, in the minds of large IP holders.

This has "showdown" written all over it. And a wise person does not pick a fight they can not win. Recent encouraging developments in patent law aside (KSR! Whee!) Congress and the Federal Courts are still in the high point of the "protect IP owners" legal cycle. Given that a for-profit company is now expressly soliciting and posting fanfics, including fics with adult themes and/or fics which directly portray characters and elements in a non-canon, even negatively so, light, the gloves are going to come off. C&D's are coming. Eventually, counsel will get tired of a new round of C&D every week and start threatening with injunctions and damages. If they succeed, the site will not be able to make a profit. If they do not, they will start suing for those injunctions and damages.

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.

If fanlib fights like Hell, I think the result will be exactly the same, only it will take longer and cost more.

M

(Reply to this) (Thread)

[info]cofax7
2007-05-21 04:45 pm UTC (link)
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.

(Reply to this) (Parent)(Thread)

[info]stmarc
2007-05-21 04:49 pm UTC (link)
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.

M

(Reply to this) (Parent)(Thread)
(no subject) - [info]cofax7, 2007-05-21 05:15 pm UTC
(no subject) - [info]stmarc, 2007-05-21 05:33 pm UTC
(no subject) - [info]cofax7, 2007-05-21 05:50 pm UTC
(no subject) - [info]snorkackcatcher, 2007-05-22 03:45 pm UTC
(no subject) - [info]stmarc, 2007-05-22 04:26 pm UTC
(no subject) - [info]rez_lo, 2007-05-22 03:19 am UTC
(no subject) - [info]rez_lo, 2007-05-22 03:22 am UTC
(no subject) - [info]rubymiene, 2007-05-22 03:40 am UTC

[info]pinkfinity
2007-05-21 05:52 pm UTC (link)
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.

(Reply to this) (Parent)(Thread)
(no subject) - [info]stmarc, 2007-05-21 06:42 pm UTC
(no subject) - [info]quicksilvereyes, 2007-05-21 09:05 pm UTC

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