HIGHLA-L Digest - 24 Jul 2001 (#2001-217)
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Tue, 24 Jul 2001 22:00:01 -0400
There are 8 messages totalling 591 lines in this issue.
Topics of the day:
1. bootleg tapes & more (was--ATTN: All Fan Fic writers) (4)
2. bootleg tapes & more (3)
3. canadian igloos was Re: bootleg tapes & more
----------------------------------------------------------------------
Date: Tue, 24 Jul 2001 09:47:17 -1000
From: Geiger <geiger@maui.net>
Subject: Re: bootleg tapes & more (was--ATTN: All Fan Fic writers)
John--
>>>Don't ask, Don't tell' situation exists which sems to suit
> both parties. As long as fanfic writers don't overstate their 'legal'
rights
> (none when it comes to previously copyrighted characters) and TPTB don't
> decide to crack down on every fansite, seize every unofficial
badge/button,
> t-shirt etc, then everyone seems to be happy. At least legally.
No, no, no. "Don't ask/don't tell" has NOTHING to do w/ the legality of
anything. The fact those who are being infringed on have not yet publicly
protested does NOT mean that they LIKE being wronged, or that they don't
really feel they ARE being wronged, or anything of the sort. It just means
that so far they haven't felt a public protest is the best thing for the
franchise. That doesn't mean that fanfic writers/distributors are legally
right.
> Correct me if I'm wrong, but your job as a lawyer would be to go into
court
> and defend/prosecute by whichever side you had been hired, using as many
> facts as possible which backed up your viewpoint. Presumably, the
oppossing
> council would go into court with just as much enthusiasm.
I'd be on the franchise's side, so I would have the luxury of being able to
argue both the facts & the law; my unworthy (& doomed) opponent would be
reduced to pounding the table. (BUT, THEY _LIKE_ WRITING FANFIC, YOUR
HONOR!!!)
> your opinion (all fanfic is wrong and should not be written)
That is NOT my opinion, & I would appreciate you NOT paraphrasing me w/ such
blatant inaccuracy; I'm beginning to wonder if it isn't designed to inflame.
I have said repeatedly that WRITING fanfic is just peachy. As is most
anything done privately, as long as fraud & force aren't involved. But
DISTRIBUTING fanfic is totally another matter, & distributing it via paid
zine subscriptions or via the Internet is flagrant disregard for both the
law & the fanfic community's own professed creed of not bringing their work
to official attention--except of course when discretion gets in the way of
flaunting themselves in the MOST public way imaginable.
John--
>And hey, I know several lawyers. No better or worse than film producers.
;)
Or journalists.
Nina
geiger@maui.net
------------------------------
Date: Tue, 24 Jul 2001 10:05:19 -1000
From: Geiger <geiger@maui.net>
Subject: Re: bootleg tapes & more
Bridget--
>>>I also think it represents a kind of unspoken
agreement between the fans and those who own the copyrights. This
silent agreement is one wherein the fans promise not to try to make a
profit off the object of their obsession, and the copyright-owners
agree not to sue as long as that promise is kept. Another part of
that silent agreement is that the fans also promise not to offend the
copyright-owner>>> SNIP
It's rather dangerous to assume terms in unspoken agreements; often, the
"sides" are clueless about each others' intent. Also, the idea of any group
as large & diverse as a media franchise's fanbase realizing there IS such an
agreement, much less all adhering to it, is mind-bogglingly unlikely.
Especially as to the "no offense" part. Which brings up slash again....
Marina--
> It's easy to say do not killfile anyone,
> but after being called a criminal or childish or having one's intelligence
> insulted, I think one would have to be a masochist to continue
> to read posts by such a poster.
Certainly, kill-filing & deleting posts are much easier than _stopping_ the
behavior that makes one akin to a juvenile or a criminal.
> There's a difference between rational, reasoned argument (the kind we
> usually have) and personal attacks (do I need to give an example?).
Yes. Feel free to use anything Carmel has written in this or related
threads.
Wendy--
> >Well *I* wasn't insulted, berated, misconstrued, misunderstood or
ignored.
Marina--
> I was.
Gee--me, too! By you, Marina! And others! So what!?
Wendy--
> To someone
> >who sees the "Law" as an important, real thing - and not as a distant
> >abstract to be ignored when inconvenient - the idea of open and notorious
> >flouting of the law...even a minor law ...is irritating.
Marina--
> And, we don't care.
And, frankly, I don't care that MY attitude drives YOU nuts. When you (or
others) say here that fanfic is glorious, I'll likely (time permitting) say
it's vile (when distributed, & why). So, deal. If the only way you can
deal is deleting, that's fine.
> - Marina, freezing to death in Jo'Burg.
Ah, it's another gorgeous day in paradise here on Maui.
Nina
geiger@maui.net
------------------------------
Date: Tue, 24 Jul 2001 21:54:42 +0200
From: Marina Bailey <fdd-tmar@netactive.co.za>
Subject: Re: bootleg tapes & more
Bridget wrote, WRT what John wrote (and no, I did not killfile
John! He's always polite. I just think it's easier to discuss
his post in the context of Bridget's):
>I think this is a pretty good summary of the situation.
I agree. I wasn't discussing the rights or wrongs of the law
as regards fanfic, I was calling into question the blind
obedience some people have to the law. I know exactly where
fanfic stands in the eyes of the law.
As Bridget says:
>Fanfic writers have no legal *right* to be doing what they're doing.
>However, even though they are technically infringing on the
>copyright-holder's rights, the infringement is harmless as long as it
>doesn't cost the copyright-holder either money or the right to their
>intellectual property. And this goes back to the "keep the fanfic
>out of TPTB's face" argument
However:
>The truth is that fanfic can exist only so long as those who really
>own the copyrights are willing to tolerate it.
Fanfic will *always* exist. Whether it exists on people's hard
drives or in scrapbooks they keep in their desk drawers, or just
in their heads, it will *always* exist. You cannot stop people
from adding to the modern mythologies, even if it's only in
their own heads.
People have been writing new versions of the King Arthur legend for
a thousand years. And the only reason they aren't called on the
carpet for it is because the person (or people, or... whatever)
is dead and can't sue. So shouldn't we be protesting against people
who write King Arthur novels? They're infringing the rights of
some person from a millennium ago, after all.
>I seem to recall that the one case that George Lucas
>went after one or more fanfic writers was over slash fiction, and
>that he was offended by that. (I could be mistaken about that.)
I think he was offended by erotica in general, feeling that it
didn't fit in with the SW universe (that's the way I heard it).
Of course, this just made the fans mad at him. And Master and
Apprentice is still there (yay).
>But as soon as they decide to move us along and stop us from
>[snip] writing fanfic, there is nothing we can do
>to stop them, legally or otherwise--the law is all on their side.
Ah, but they can't stop us. They could maybe stop us from
distributing fanfic. They could make us remove it from our
webpages. They could force zine publishers to stop publishing
zines. But they cannot stop people from thinking up and
writing down new stories, even if they are never shown to
anyone. And then a fan or two will send their story to
another fan, who will send it to another fan... (Much like
the way Professionals fanfic was distributed before the advent
of the Net.) And they can't stop that either. Very soon, we're
right back where we started.
If you ask me (and I realise no one did), to try and stop
people from writing and distributing fanfic is like trying to
empty the ocean with a paper cup. Ain't gonna happen.
Because if someone is creative by nature and a subject takes
their fancy, they *will* respond in the appropriate manner.
Monet painted waterlilies over and over. Some of us write
stories. He was fascinated by the play of light in his water
garden. Some of us are fascinated by the life of Duncan
MacLeod. And the only difference in the end result (I'm not
talking quality or genius, but rather the creative urge) is
that waterlilies weren't copyrighted.
You cannot chain up somebody's creativity, and the urge to
share it. You just cannot.
- Marina. (Learning that the Scots and igloo-bound Canadians
<g> consider 2 deg Celsius cold really doesn't make me feel
better!!)
\\ "But then, we saw that Obi-Wan doth look upon ||>>>>>>>>>>>>>>> //
// Qui-Gon with lust, and that Mr. Lucas was not || R I C H I E >> \\
\\ likely to include that in the next movie, so we ||>>>>>>>>>>>>>>> //
// said screw it and wrote it ourselves." - Warning || \\
\\ page of the 'Master & Apprentice' slash site || //
//==fdd-tmar@netactive.co.za=Chief Flag Waver and Defender of Richie==\\
Watching "Demons", an episode of Stargate SG-1:
My brother: I need a trepanning ritual like I need a hole in the head.
------------------------------
Date: Tue, 24 Jul 2001 15:58:24 -0500
From: Bridget Mintz Testa <btesta@firstworld.net>
Subject: Re: bootleg tapes & more
Nina quoted me:
>>>>I also think it represents a kind of unspoken
>agreement between the fans and those who own the copyrights. This
>silent agreement is one wherein the fans promise not to try to make a
>profit off the object of their obsession, and the copyright-owners
>agree not to sue as long as that promise is kept. Another part of
>that silent agreement is that the fans also promise not to offend the
>copyright-owner>>> SNIP
>
And then she said:
>It's rather dangerous to assume terms in unspoken agreements; often, the
>"sides" are clueless about each others' intent. Also, the idea of any group
>as large & diverse as a media franchise's fanbase realizing there IS such an
>agreement, much less all adhering to it, is mind-bogglingly unlikely.
>Especially as to the "no offense" part. Which brings up slash again....
Certainly, unspoken agreements involve risk on both sides. The "word
to the wise" idea only works if the word is actually being "spoken"
-- or in this case, not spoken but inferred and implied -- by and to
the wise. The reason that I'm saying an unspoken agreement seems to
exist is that, by and large, TPTB haven't taken any action against
fanfic. I mean TPTB, not just in the HL universe, but in any and all
fandoms that I'm aware of. All of these "PTB" must be aware of
fanfic--they have access to the Internet, and they also attend fan
conventions where fanfic zines are right out on tables for sale
(hopefully only for the cost of producing the zine, not to make a
profit).
I am making an assumption about unspoken agreements, absolutely, but
it seems to be a reasonable assumption, based on the actions of the
various PTB thus far.
As far as the many and diverse fans of media-based franchises being
aware of such an unspoken agreement, well, of course it's unlikely
that they are all aware of it. However, because of discussions like
this and because of the resonating effect that they have throughout
the world of fandom, I think a lot of fanfic writers have the feeling
that what they're doing isn't exactly kosher and therefore they
shouldn't go around flaunting it. For example, I haven't seen most
of the fanfic writers whose names I recognize participating in this
discussion--they are over on HLFIC-L happily posting stories.
However, Debbie is very much aware of the legal situation of fanfic
and requires that everyone who posts a story on HLFIC-L include a
disclaimer about copyright, ownership, and so forth. Every Web site
I've been to and every fan story I recall reading any time in the
last few years has some such disclaimer. So, whether the fanfic
writers are fully aware of the legal ramifications of what they're
doing, they do know that they better say something to acknowledge the
original copyright owners, and that flaunting what they're doing is
probably not a good idea.
It's when someone decides that he or she needn't be bound by all of
those subtle precautions and deferential notices that the trouble
starts.
There's no guarantee that the delicate "don't ask, don't tell"
situation in which fanfic writers flourish will last. As soon as
some idiot fanfic writer decides to get in the face of and harm the
financial and/or legal interests of the copyright owner of whatever
media universe is the focus of the fanfic writer's
interest/obsession, then the copyright owner may well strike back in
such a way that it stops not just that fanfic writer but many or most
or possibly even all of them.
I personally think that fanfic does benefit the various TPB by
keeping interest in their franchises alive between major media
events. As I've previously stated, though, this would be a very
difficult argument to prove, and I'm not even sure how I would go
about collecting such proof. It's a gut instinct, but gut instincts
aren't admissible in court. I am personally grateful that TPTB have
chosen to turn a blind eye to fanfic activity, including its
distribution on the Internet. I haven't published any fanfic in
zines because I am concerned that the selling of zines--even if it's
only to cover costs--may be interpreted as a profit-seeking activity,
and I don't want to get caught up in that. I do think that as long
as fanfic writers do not flaunt their activities or try to make money
from them, it is to the benefit of TPTB not to go after the writers.
That's because doing so would create a lot of ill will among the
fans. Generally speaking, as long as TPTB don't *need* to create
that kind of ill will, I can't see them doing it. But as I have also
said before, if they feel, for legal or financial reasons, that they
do need to go after one or more fanfic writers, I don't think they'd
hesitate.
Bridget Mintz Testa
--
Bridget Mintz Testa
btesta@firstworld.net
------------------------------
Date: Tue, 24 Jul 2001 18:33:34 -0400
From: joanne <jojoann@videotron.ca>
Subject: canadian igloos was Re: bootleg tapes & more
We need isolated one too :)
JoAnne
jojoann@videotron.ca
(yesterday - 105 F. with the humidex factor - 41
C. -
today a big relief -
100 F - 38 C.)
(apologies for the double posting about french HL
- was using my son computer, not set like mine!)
----------
> From: K Swanson <swanson@TELUS.NET>
> Date: July 24, 2001 1:35 PM
>
> >We're in
> >Africa! If I wanted to be cold I'd move to
Canada!
>
> Yeah, cos as everyone knows, we all live in
igloos here. ;-)
------------------------------
Date: Tue, 24 Jul 2001 23:46:49 +0100
From: "John Mosby (B)" <a.j.mosby@btinternet.com>
Subject: Re: bootleg tapes & more (was--ATTN: All Fan Fic writers)
Me (opening)
> >>>Don't ask, Don't tell' situation exists which sems to suit
> > both parties. As long as fanfic writers don't overstate their 'legal'
> rights
> > (none when it comes to previously copyrighted characters) and TPTB don't
> > decide to crack down on every fansite, seize every unofficial
> badge/button,
> > t-shirt etc, then everyone seems to be happy. At least legally.
Nina (objecting):
> No, no, no. "Don't ask/don't tell" has NOTHING to do w/ the legality of
> anything. The fact those who are being infringed on have not yet publicly
> protested does NOT mean that they LIKE being wronged, or that they don't
> really feel they ARE being wronged, or anything of the sort. It just
means
> that so far they haven't felt a public protest is the best thing for the
> franchise. That doesn't mean that fanfic writers/distributors are legally
> right.
Me (rebuttal)
I stand by the description and that - regardless of the way you are
interpretting the current law (which might be the way a judge would consider
it, might not) - TPTB and a majority of fans seem generally happy to keep
the situation as it stands (and the way Bridget wonderfully summed it up).On
a legal level,TPTB aren't going to/haven't run to sue anyone and responsible
writers aren't going to post their "Darius Does Dallas" efforts to Bill
Panzer's home. I would therefore describe that as the current happy 'legal
situation' ie: both sides happy enough to keep the status quo of non-court
action and reaping the (non $) benefits.
Am I wrong? Well, let's get common-sensical... there's enough fanfic out
there (...hell, there's enough slash fanfic out there) and has been for
quite a while, for TPTB to go after a fanfic writer today if they decided
they wanted to. As I've said before (and as you claim), I think TPTB could
win a legal argument. So why the hell don't they try?
1) Because they don't think they would win. (Don't agree, but it's a
position)
2) They don't want to piss off a passionate fanbase (post-Endgame can they
afford to?)
3) There isn't a large enough loss to warrant a huge financial law-suit
which would also cost time and goodwill.
I'm also betting it's a mix of 1 and 2. All ways around, nobody really
loses significant $ if the current state of play (fanfic circulated but not
sold) holds and is not tested/strained by extremists on either side. Maybe
this is the ultimately flawed 'no-one minds me/them doing it' defence...but
it seems to be work. Is it legal? Probably not....but if no-one cares enough
to take it to court and TPTB acknowledge its existence, then it's not really
surprising that fanfic continues and flourishes, is it? Essentially...can a
law exist for long, if it's never enforced?
Me (sustained)
> > Correct me if I'm wrong, but your job as a lawyer would be to go into
> court
> > and defend/prosecute by whichever side you had been hired, using as many
> > facts as possible which backed up your viewpoint. Presumably, the
> oppossing
> > council would go into court with just as much enthusiasm.
Nina (cross examination)
> I'd be on the franchise's side, so I would have the luxury of being able
to
> argue both the facts & the law; my unworthy (& doomed) opponent would be
> reduced to pounding the table. (BUT, THEY _LIKE_ WRITING FANFIC, YOUR
> HONOR!!!)
Me:
And still, you'd only be a lawyer and not a judge, so you could argue but
never have the final say. And as... heavens forbid... the opponent MIGHT see
things differently from his perception of the facts and just be as good or
better than you as a lawyer (as a lawyer, does one have the obligation to
present all the facts, just the facts that back up the side of the courtroom
they are on, or just have better presentation? - serious question), I would
never presume to bet on the outcome beforehand. I've seen too many
unexpected verdicts, reversals and appeals.
me: (summing up)
> > your opinion (all fanfic is wrong and should not be written)
Nina (objection)
> That is NOT my opinion, & I would appreciate you NOT paraphrasing me w/
such
> blatant inaccuracy; I'm beginning to wonder if it isn't designed to
inflame.
Me:
It was a genuine description of what I thought your position was. If it's
not, I was wrong. (But...if I was trying to flame you, I'd be talking to a
pile of cinders). I'm trying to get the big picture and we disagree on a lot
of points and agree on others. I can live with that.
Nina:
> I have said repeatedly that WRITING fanfic is just peachy. As is most
> anything done privately, as long as fraud & force aren't involved. But
> DISTRIBUTING fanfic is totally another matter, & distributing it via paid
> zine subscriptions or via the Internet is flagrant disregard for both the
> law & the fanfic community's own professed creed of not bringing their
work
> to official attention--except of course when discretion gets in the way of
> flaunting themselves in the MOST public way imaginable.
Me:
Okay. Distribution is pretty much where we agree the problems can start. I
stand corrected on where I thought you stood. But you didn't really come
across as a particular fanfic fan from your recent posts. You don't think
fanfic is wrong but you never want to see or hear any from anyone else. A
peachy personal view which is perfectly valid.
Me:
> >And hey, I know several lawyers. No better or worse than film producers.
> ;)
Nina:
> Or journalists.
Me:
Oh, amen to that.
John
------------------------------
Date: Tue, 24 Jul 2001 19:36:54 -0400
From: Trilby <trilby23@bellsouth.net>
Subject: Re: bootleg tapes & more (was--ATTN: All Fan Fic writers)
John:
> Am I wrong? Well, let's get common-sensical... there's enough fanfic out
> there (...hell, there's enough slash fanfic out there) and has been for
> quite a while, for TPTB to go after a fanfic writer today if they decided
> they wanted to. As I've said before (and as you claim), I think TPTB could
> win a legal argument. So why the hell don't they try?
>
> 1) Because they don't think they would win. (Don't agree, but it's a
> position)
> 2) They don't want to piss off a passionate fanbase (post-Endgame can they
> afford to?)
> 3) There isn't a large enough loss to warrant a huge financial law-suit
> which would also cost time and goodwill.
>
> I'm also betting it's a mix of 1 and 2.
John, did you really mean 1 & 2? My own guess would be that it's
2 & 3. If nothing else, I'm sure TPTB can afford more lawyers than
the average fanfic writer.
And maybe the only important reason is #2. I wouldn't think it's a
legal defense, but there's plenty of evidence from Star Trek alone
that fan activities can keep an entertainment franchise alive and
profitable, and those fan activities have included the writing and
distribution of fanfic since the 60's (and of slash since the 70's).
That alone, it seems to me, would be reason enough for TPTB to
maintain "plausible deniability" regarding fanfic.
-------------------- Trilby
"Let dreamers dream what dreams they please,
Those Edens can't be found.
The sweetest flowers, the fairest trees
Are grown in solid ground.
We're neither pure, nor wise, nor good.
We do the best we know.
We build our house, and chop our wood,
And make our garden grow."
-- from "Candide", lyrics by R.Wilbur/L.Hellman, music by L.Bernstein
------------------------------
Date: Wed, 25 Jul 2001 00:39:58 +0100
From: "John Mosby (B)" <a.j.mosby@btinternet.com>
Subject: Re: bootleg tapes & more (was--ATTN: All Fan Fic writers)
Crap.
Yup.
I meant 2 and 3.
That'll teach me to cut and paste as I work.
(Sue me). ;)
John
> John, did you really mean 1 & 2? My own guess would be that it's
> 2 & 3. If nothing else, I'm sure TPTB can afford more lawyers than
> the average fanfic writer.
>
> And maybe the only important reason is #2. I wouldn't think it's a
> legal defense, but there's plenty of evidence from Star Trek alone
> that fan activities can keep an entertainment franchise alive and
> profitable, and those fan activities have included the writing and
> distribution of fanfic since the 60's (and of slash since the 70's).
> That alone, it seems to me, would be reason enough for TPTB to
> maintain "plausible deniability" regarding fanfic.
>
>
> -------------------- Trilby
> "Let dreamers dream what dreams they please,
> Those Edens can't be found.
> The sweetest flowers, the fairest trees
> Are grown in solid ground.
> We're neither pure, nor wise, nor good.
> We do the best we know.
> We build our house, and chop our wood,
> And make our garden grow."
> -- from "Candide", lyrics by R.Wilbur/L.Hellman, music by
L.Bernstein
------------------------------
End of HIGHLA-L Digest - 24 Jul 2001 (#2001-217)
************************************************