[Crossposted with comments open on both sites:
DW,
LJ.]
This is a response to
telesilla's
it's like rain on your wedding day where she says:
Every time I see a member of the fanfic community attempting to apply the laws of copyright to themselves, it makes me boggle. Apparently it's okay to dismiss/ignore copyright law when it's, oh say, Acme Shark's copyright on everything connected with the SG universe, but if it's comments on an LJ being moved without your permission? OMG UR IN MAH COPYRIGHT VIOLATIN ME!
This makes me twitch a little. I don't see the irony at all.
I think it's important for us to distinguish between copyright proper, the broader cloud of intellectual property rights that exist both for creators and consumers, and the even more chaotic mess of
interpretation of those rights.
Currently, in the world we live in, media properties (movies, tv shows, books) are protected by copyright. This is a fact.
Currently, in the world we live in, the words we type on the Internet are protected by copyright. This is also a fact.
Now, any explanation of what "copyright" means will begin with "you can't copy that stuff without permission". That applies equally to media properties and to our words on the Internet.
However, the explanation would go on to say "except under certain circumstances". One of those circumstances is "fair use". Fair use allows you to copy, verbatim, a small portion of a creative work; it allows you to criticize or satirize a work; it allows you to transform the work (you've heard of
Transformative Works right?) to make it into a different work; and so on.
Fannish creative works (fanfic, fanart, fanvids) are, in most cases, protected under Fair Use. Creating a transformative work based on a media property is not at all the same as copying the original thing wholesale.
This is the first way that writing fanfic differs from copying LJ content: fanfic is transformative fair use, while straight copying is not.The second part of the explanation would go on to talk about licenses. A license is used to say "I retain copyright over this work, but I allow you to use it in certain ways."
Creative Commons provides several well known licenses for content, but what you may not know is that you grant a license almost any time you use the Internet.
If you agree to a website's Terms of Service (TOS), you agree to allow certain things to be done with the content you provide to that website. It might not have been clear to you at the time (and that's an issue with TOSs, and with technical literacy, which I don't discount), but you have to grant that license in order to allow the site to re-publish your content to the other users of their service.
The LJ TOS says:
LiveJournal reserves the right, without limitation except by law, to serve any user Content on the web, through the downloadable clients and otherwise.
This includes through their
API. When you agreed to the LJ TOS, you agreed to make your content available through the livejournal.com website, through RSS feeds, through desktop clients that use the APIs, through various websites that use the APIs, and who knows what else.
I tried to find a separate TOS for the API and couldn't (the closest thing is
this bots page), so as far as I can tell, API users are also governed by the overall TOS, which does not restrict any client from accessing and displaying LJ content. (They really should have an API TOS, now I think of it; the best way is to set up an API with keys per developer, so that if any developer breaks the TOS you can shut down their service. LJ has not done this, however.)
So, in short: you gave LJ permission to publish and display your content, including comments, through their API, and gave other LJ users (whether using livejournal.com, a desktop client, or another web-based client such as Google Reader or Dreamwidth) permission to access your content through that API.
You might not have known it, and it might suck, and you might not like it, and that's perfectly valid. But you granted a license, and so this is not, technically, copyright violation.
This is the second reason copying LJ comments is nothing like fanfic: you granted a license for the copying.(You will have noticed that I said fanfic is transformative fair use, thus not copyright violation, and that copying LJ comments is licensed, thus not copyright violation either. I firmly believe both these to be true.)
Thirdly, any discussion of copyright and intellectual property on the Internet has to operate on several levels simultaneously:
What does the law say?
How is the law interpreted?
How is the interpretation changing over time?
What do we want it to be in future?
Right now the law is in flux, with battles going on constantly over what degree of copying is, or should be, legal. Are you allowed to burn your own CDs to mp3? Can you keep a copy on your computer *and* a copy on your iPod? Can you backup your computer containing those mp3s to an online service like
Jungle Disk?
Most of us believe that we should be able to do all those things -- copy media between formats, store it on different hardware, back it up offline or online -- but the
RIAA would disagree.
Simultaneously, we feel threatened when someone takes our creative work (like LJ comments) and copies it between formats, stores it on different hardware, backs it up on another LJ-like service. Suddenly we're in the RIAA's shoes and we see the other side of the story, and our responses can be kind of contradictory.
I think this is really natural! It's an area of confusion and contention on every level from the personal to the legislative. PEOPLE DON'T HAVE ANSWERS TO THIS RIGHT NOW. And it's pretty normal for us to flail around as we try to figure it out.
(By "we", incidentally, I don't mean fandom. I mean society as a whole. Take a look at some of Stanford professor
Larry Lessig's presentations for more information. I recommend
How the law is strangling creativity for starters.)
branchandroot had an
interesting post yesterday about correspondence vs contributor models for understanding this, and the way she frames it is really useful: here are two legal precedents, and we don't know which applies. I work in this field professionally, and I have these conversations all the time, sometimes with actual trained lawyers, and
they don't have straight answers either.
In short, intellectual property is going through a bit of a chaotic phase right now, and nobody really knows exactly what's legal and what's not.
This is the only way in which copying LJ comments and writing fanfic are alike: laws, standards, and understanding of the issue are confused in both areas.I don't see where the irony is.