Johnathan Fii ([info]mcpo_john117) wrote in [info]fandom_lawyers,
@ 2007-08-12 19:48:00
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Greetings, All
New to the community, and I have a good one for you all.

A number of members of the LJ Community Deleterius, including myself, have been served DMCA notifications, by a Fanfiction.net author by the handle "Meyshi", for "sporking" (AKA Parodying) a few of her pieces.

SixApart has been rather loathe to respond to our attempts to file counter-claims, and seem to not want anything to do with us, other than repeatedly advising us to retain lawyers.

The writer in question, Meyshi, is of her own admission under the age of 18, and seems to be a US Citizen. No word from SixApart on whether or not the young lady herself filed the claims, or if an advocate or parent/legal guardian submitted the claims for her. They won't respond to that, either.

Now, if I understand this correctly, Meyshi has no right to file a DMCA claim for works parodied, which I do believe are protected under the Fair Use Doctrine. In every case, her original piece was credited, even linked to. Her overall demeanor against us has been extremely negative, if not outright threatening - the original letter she sent to the first user who "sporked" one of her pieces threatened outright physical violence - which has fallen on entirely deaf ears with SixApart./Livejournal.

Moreover, to file a DMCA claim, if memory serves, Miss Meyshi would have to have some sort of legal basis to file this, yes? As in, actual ownership of Harry Potter?

Advice on this would be much appreciated - I'm not letting this go down without a fight.

EDIT: I'm posing this to the community, as all six of us who received these letters have been ordered to take down the offending pieces by SixApart, who is essentially ruling that Meyshi has the same rights to tell us what to do with her fanfiction pieces, as JK Rowling herself would with Harry Potter.

EDIT: To clarify, my bad. 6A has been, thusfar, unwilling to respond as to whether or not the complaint was filed by a lawyer, or by Meyshi herself. From the way it looks, however, and our encounters with her and a statement she made on one of her latest chapters, it looks like she's the one filing the claims. See HERE and please do ignore the oh-so-conveniantly timed pity plea and addition of a chapter of fanfiction after the entry was reported by numerous people for being an author's note entirely... She sure is broken up over that cousin...

EDIT EDIT: What follows is what I was sent by LJ.

Dear LiveJournal user mcpo_john117,

We have received a report, properly formatted under the provisions set
forth by United States law, indicating that your entry located at
http://mcpo-john117.livejournal.com/187033.html violates the copyright
of another person. As such, we must request that you remove that entry
as soon as possible, but no later than 0:01 AM EDT, Aug. 15, 2007, to
avoid further action against your account.

If you feel that this report is in error and that your use of the
material is allowed under copyright law, you are entitled to file a
counter-notification, also under the provisions of US law; please contact us
for information on how to do this. Filing a counter-notification
indicates that you are willing to defend yourself in a court of law against a
claim of copyright infringement.

Regards,
Douglas
LiveJournal Abuse Prevention Team

EDIT The Final:
LJ Accepted my second counter-notification thingy... but still refuses to tell me whether
or not the original notice was filed by an individual as a TOS violation, or by a
lawyer. They claim not to understand the fairly straight-forward question of:
"
And this time, I request, as is my legal right - is this claim being
filed by a lawyer, or is this claim simply a complaint to LJ's TOS?"
As I am legally required to take the post down for 14 days, to give Meyshi a chance
to file suit against me, the post is currently not viewable. I do, however,
have it archived, and will be putting it back up when this is sorted out.



(54 comments) - (Post a new comment)


[info]lostandalone22
2007-08-13 03:04 am UTC (link)
I doubt there's anything you (or she, for that matter) could do on a legal basis, but I went and read her profile. She seems like someone I wouldn't want to mess with anyways, so maybe just take down the stories and don't read anything she writes in the future. It is bogus that she's doing that, though.

(Reply to this) (Thread)


[info]mcpo_john117
2007-08-13 03:08 am UTC (link)
See, the issue is this.
She's already done this to another sporker, who caved to her demands. If you ask me, she seems like a mentally unstable 16 year old girl, whom has little to no real legal recourse... I sincerely doubt her parents are willing to put out money on an actual lawsuit.

(Reply to this) (Parent)(Thread)


[info]lostandalone22
2007-08-13 03:12 am UTC (link)
That's the impression that I got, too. She makes several comments on her profile that make her seem a little less than stable, including saying that she stabbed someone.

I would doubt if her parents even knew anything about this.

(Reply to this) (Parent)(Thread)

(no subject) - [info]mcpo_john117, 2007-08-13 03:14 am UTC
(no subject) - [info]lostandalone22, 2007-08-13 03:17 am UTC

[info]jocelyncs
2007-08-13 03:21 am UTC (link)
I cannot imagine that ANY fanwriter holds a copyright in their fanfiction! Look at the "Pickett v. Prince" case. I'm not as familiar with the DMCA as I used to be, but I don't know how it could vest any copyright in someone who bases their entire work on the work of another.

Is SixApart supporting her claims? Would it not be better to simply ignore her? How was this "service" of the claims done? Did a lawyer do it, or was it simply a case of this teenager writing a letter with a lot of legalese?

(Reply to this) (Thread)


[info]mcpo_john117
2007-08-13 03:24 am UTC (link)
Yes, Six Apart is supporting her claims. They've sent all 6 of us C&D letters, telling us to take the pieces down unless we file counter-claim letters...

... Of course, they responded with a form letter when, apparently, our counter-claim letters weren't satisfactory to them, and are insisting that we have to get lawyers.

Last I checked, in the US, I have to be allowed due process of law, and I have the ability to represent myself in court.... But beyond that, she has no legal basis to take me to court, and I'll maintain that til my dying day.

(Reply to this) (Parent)(Thread)


[info]jocelyncs
2007-08-13 03:31 am UTC (link)
But beyond that, she has no legal basis to take me to court, and I'll maintain that til my dying day.

Standard Disclaimer Applies: This is NOT legal advice. This is just personal opinion. If SixApart is also suggesting you get a lawyer or at least consult one, and you have the means to do it, you might want to at least talk to one.

How did Meyshi make her original claims? Did 6A receive a notice from a lawyer, or did she simply complain to them invoking the DMCA? If the former, you have both her and 6A to deal with. If only the latter, then 6A is your main problem.

(Reply to this) (Parent)(Thread)

(no subject) - [info]mcpo_john117, 2007-08-13 03:34 am UTC
(no subject) - [info]jocelyncs, 2007-08-13 03:42 am UTC
(no subject) - [info]mcpo_john117, 2007-08-13 03:47 am UTC
(no subject) - [info]jocelyncs, 2007-08-13 03:55 am UTC
(no subject) - [info]mcpo_john117, 2007-08-13 03:58 am UTC
(no subject) - [info]xtricks, 2007-08-15 04:16 pm UTC

[info]realcdaae
2007-08-13 02:04 pm UTC (link)
I'm confused by this. Usually with LJ, if someone files against you, all you have to do is file a counter-claim. After that, the person has to sue you and win for LJ to do anything. If you file a counter-claim with LJ, saying that you are not breaching copyright as you are covered by fair use, they are supposed to be absolved from having to do anything about it.

Can you share the exact text of what they sent you, and what you sent them? Did you follow their instructions and file an actual counternotice, or did you just reply to LJ Abuse telling them you weren't doing anything wrong?

(Reply to this) (Parent)(Thread)

(no subject) - [info]rubymiene, 2007-08-13 04:47 pm UTC
(no subject) - [info]mcpo_john117, 2007-08-13 05:00 pm UTC

[info]stefanie_bean
2007-08-13 04:52 am UTC (link)
Hi, [info]jocelyncs, you wrote, I cannot imagine that ANY fanwriter holds a copyright in their fanfiction!

What if someone writes fanfiction based on books in the public domain? (i.e. Gaston Leroux's original Phantom of the Opera novel; Charles Dickens; Jane Austen, etc.) It seems they *would* own the copyright.

(Reply to this) (Parent)(Thread)


[info]sucrelefey
2007-08-13 05:36 am UTC (link)
Well one of the fun things of copyright law is you can in a strictly nit pick selective technical sense claim copyright on something that is in itself in violation of some one else's copyright until you get smacked in a courtroom for doing so by the original true copyright holder. A funny paradox that comes out of the way the law is written that so far never holds up in legal action or court. Doesn't stop people from latching on to it though.

For stuff that has gone public domain you can copyright your new unique version. That is what Disney does. They copyright and trademark their version of public domain stuff. They do not own Snow White the fable folklore but they do own their specific version.

(Reply to this) (Parent)


[info]pinkfinity
2007-08-14 01:09 am UTC (link)
I would say that an author who creates a parody of another's work does hold a copyright in their creation, although not in the specific words taken from the original work. As the Supremes said back in the Acuff-Rose case, "From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright's very purpose..."

But without seeing the actual "sporkings" and knowing how much content by Meyshi was incorporated into the sporkings, it would be impossible for me to guess whether there's enough content created by the sporker(s) to generate a copyrightable work. Odds are that there is but it's not a definite given.

The fair use doctrine thus "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Stewart v. Abend, 495 U.S. 207, 236 (1990) (internal quotation marks and citation omitted in the Acuff-Rose ruling).


I have seen arguments that fanfic does merit copyright protection; Neil Gaiman, for example, has a copyright registration for The Trouble With Susan, iirc, and that is fanfic of the Narnia series, but that might be because he, as he said in an interview back in 2006, managed to "figure out how to craft the story so that C.S. Lewis’ estate lawyer would say 'I probably couldn’t get an injunction against this. This is borderline, but you could probably get away with it.' And I think that I probably did. I hope." He hasn't been sued over it yet, and it's been pushing two years since it was released.

(Reply to this) (Parent)


[info]sucrelefey
2007-08-13 03:22 am UTC (link)
Go to a professional to fight back or comply, do not ignore and beware of publicly saying anything that can get you sued for something else since these types are big on throwing the libel/slander threat around.

6A can not help you with any of this. All they can do is comply with the take down order. It is not their job to defend users against legal action.

Of course if this does wind up in a court several issues will need to be addressed and there is that nasty spotlight effect that many Fandoms fear.

There will be a price to standing up to bullies for principles.

(Reply to this) (Thread)


[info]mcpo_john117
2007-08-13 03:25 am UTC (link)
Can a 16-year old actually take me to court over a copyright issue?

(Reply to this) (Parent)(Thread)


[info]pinkfinity
2007-08-14 01:11 am UTC (link)
She could, if she owns the work in question. But ownership of a copyright in fanfic is, as I've said above, probable but not a definite thing (depending, to some extent, on how much content she's taken from JKR's works). There is, though, no bar to a 16 year old holding a copyright in something and enforcing it.

(Reply to this) (Parent)


[info]mcpo_john117
2007-08-13 03:26 am UTC (link)
Particularly when said copyright doesn't even belong to her?

(Reply to this) (Parent)(Thread)


[info]jocelyncs
2007-08-13 03:28 am UTC (link)
Hardly, but I'm afraid that's not the only problem you have--based on your comment to me above, it's SixApart you have to really worry about.

I seem to recall that LJ has pulled this sort of nonsense before with MST/parody/spork communities. You and Deleterius might want to consider moving to a different LJ-type host such as JournalFen, which as far as I know, allows sporking with glee.

(Reply to this) (Parent)(Thread)

(no subject) - [info]mcpo_john117, 2007-08-13 03:30 am UTC
(no subject) - [info]sucrelefey, 2007-08-13 03:37 am UTC
(no subject) - [info]mcpo_john117, 2007-08-13 03:40 am UTC
(no subject) - [info]sucrelefey, 2007-08-13 03:44 am UTC
(no subject) - [info]mcpo_john117, 2007-08-13 03:49 am UTC
(no subject) - [info]sucrelefey, 2007-08-13 04:00 am UTC
(no subject) - [info]mcpo_john117, 2007-08-13 04:05 am UTC
(no subject) - [info]sucrelefey, 2007-08-13 04:22 am UTC
(no subject) - [info]mcpo_john117, 2007-08-13 04:25 am UTC
(no subject) - [info]sucrelefey, 2007-08-13 04:32 am UTC
(no subject) - [info]mcpo_john117, 2007-08-13 04:34 am UTC
(no subject) - [info]rubymiene, 2007-08-13 05:45 am UTC
(no subject) - [info]mcpo_john117, 2007-08-13 05:52 am UTC

[info]jocelyncs
2007-08-13 03:34 am UTC (link)
Well said.

Assuming 6A received an actual DMCA C&D, and not just a complaint by the fanwriter (the original post isn't entirely clear on that, and the term "serve" has ominous meaning to lawyers), then there is little they can do. If all they received was a TOS complaint from the fanwriter, then they are likely just going through the motions, and unfortunately, they've shown that they are disinclined to be fair or give the OP a hearing.

Of course if this does wind up in a court several issues will need to be addressed and there is that nasty spotlight effect that many Fandoms fear.

There will be a price to standing up to bullies for principles.


Very, very true.

(Reply to this) (Parent)


[info]rubymiene
2007-08-13 05:40 am UTC (link)
If LJ is asking for your counterclaim, then this sounds like an actual DMCA takedown notice. In that case, if you want to fight it, ask LJ for a copy of the notice they received, inform LJ you will be filing a counternotice and ask for instructions, and file a counternotice.

Chilling Effects has a counternotice generator here: http://www.chillingeffects.org/dmca/counter512.pdf (you don't need a lawyer to do this, but I'd recommend you try contacting EFF first, and reporting this to CE)

There is a provision in DMCA creating liability for takedown notice abuse (http://ilt.eff.org/index.php/Copyright:_Digital_Millennium_Copyright_Act#DMCA_Misuse), which is what this sounds like.
If you send a counternotice, the person claiming ownership must then file suit in federal court (even if the claim is bogus, a person can still file). However, you have to have an adult to file, so if this person really is 16 (they could be lying), they'd have to get their parent/guardian to do it for them. You can also sue them, claiming abuse of DMCA, and even if they give up their claim, you can still pursue yours.

If you want help, and are actually willing to see it through and go to court, I think EFF would be willing to help you.

It would be a lot easier for us to help if you posted exactly what LJ sent you, and links to the work you parodied and your parody.

This last bit is my own personal opinion, but if you don't counternotice, then the next time you spork someone and they don't like it, LJ could ban you as a repeat infringer. A lot of people think there are no consequences to caving other than taking the work down, but that's not true.

(Reply to this)


[info]in_the_bottle
2007-08-13 11:22 am UTC (link)
Don't have any advise that would be of any use that others haven't already said, but...

She sure is broken up over that cousin...

Koalas and roos eh? Really hot? She does realise it's winter over here in Australia right?

(Reply to this) (Thread)


[info]_leareth
2007-08-13 12:01 pm UTC (link)
Maybe she's from North Queensland.

(Reply to this) (Parent)(Thread)

(no subject) - [info]in_the_bottle, 2007-08-13 12:07 pm UTC
(no subject) - [info]_leareth, 2007-08-13 12:11 pm UTC
(no subject) - [info]in_the_bottle, 2007-08-13 01:55 pm UTC
(no subject) - [info]sayhello, 2007-08-13 08:49 pm UTC

[info]mcpo_john117
2007-08-13 04:46 pm UTC (link)
Lmao!

(Reply to this) (Parent)


[info]emzebel
2007-08-13 07:51 pm UTC (link)
I've just skimmed, but I don't think that this has been touched on - if she did file a notice under the DMCA, if it is accurately completed under the requirements of the law, 6A has to forward the claim of infringement on with the options to fight or takedown.

Their notifying you is not a statement on 6A's part about the validity of the claim. Their recommendation is, of course, that you take it down and not fight, because the former cleans everything up for them, whereas the latter requires them to pay attention for a bit.

(Reply to this)


[info]rubymiene
2007-08-13 10:46 pm UTC (link)
What LJ sent to you definitely looks like they got a DMCA takedown, and now are giving you the opportunity to respond (which is good, some sites just yank you).

What did you send back to LJ?

(Reply to this) (Thread)


[info]mcpo_john117
2007-08-14 05:41 am UTC (link)
They've accepted my second counter-notification, but refuse to tell me whether or not a lawyer filed this as an actual, legal claim, or if it's a TOS-violation complaint... which, insofar as people have implied here, they're supposed to tell me if I ask.

(Reply to this) (Parent)(Thread)

(no subject) - [info]rubymiene, 2007-08-14 06:04 am UTC
(no subject) - [info]mcpo_john117, 2007-08-14 06:12 am UTC

[info]logophilos
2007-08-14 07:22 am UTC (link)
Whatever you did in that last edit has buggered my friends page nicely - any change you could take off the formatting?

And good luck with fighting this idiot.

(Reply to this)


[info]buggery
2007-08-16 07:46 am UTC (link)
I've been following the Meyshi-DMCA-Abuse saga intermittently for awhile now. Best of luck to you in standing up to the brat's bullying -- hopefully she's the sort who backs down as soon as she's facing real consequences.

And, as is so often the case, shame on LJ Abuse for allowing people to abuse the abuse-reporting system. From my understanding of the DMCA (note: IANAL) a takedown notice which is inaccurate -- for example, if it's filed by someone claiming to be the copyright holder or their legal representative but who is clearly not, or if the content they claim is being infringed upon is not present where they claim the it was --can safely be ignored by a company which receives it. Same principle as a bank not honouring a cheque if the signature, amount or pay-to blanks on it aren't filled in.

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