Monday, October 12, 2009

as daylight broke, I saw the earth: the trees had burned down to the ground

Cake Wrecks discovers steampunk cakes. Is that last one an armored air kraken?

For that matter, Mr. O'Toole clues me in to twelve necessary works of steampunk fiction. As he said, I don't disagree {DISAGREE! IT WAS SUPPOSED TO BE DISAGREE!} with anything on that list.

And what's up with the rumors of undead taking over Babbage? Anyone want to let me know?

And Jokay Wollongong gets slapped in the face. It's always comforting to hear when educational efforts are gang-raped by the Labs.

*adjusts her sarcasm meter*

Sorry, moving on.

I wanted to talk a bit about the principles of fair use. Stanford University defines it thusly:
In its most general sense, a fair use is any copying of copyrighted material
done for a limited and "transformative" purpose such as to comment upon,
criticize or parody a copyrighted work. Such uses can be done without
permission from the copyright owner. Another way of putting this is that
fair use is a defense against infringement. If your use qualifies under the
definition above, and as defined more specifically in this section, then
your use would not be considered an illegal infringement.
The tricky bit is that phrase, "transformative purpose". What are transformative purposes? As the article goes on, billions have been spent by law firms and clients trying to ascertain exactly what that means.

It's still vague, but it boils down to two distinct areas, near as anyone can figure.

First is fair use by means of critique. Think articles, essays, and reviews. You violate copyright if you quote the source work as a whole; but if you are reviewing a book, film, or album, you can use sections of the work without fear of prosecution. Snippets of song lyrics in a larger review of an album; quotes taken from the Lancet to support a doctor's findings on the H1N1 virus; a passage from an environmental book on the effects of acid rain. These are all legitimate examples of fair use by means of review.

The reason fair use via critique is allowed is that the public is offered a benefit, essentially by advertising the work: it's generally inferred to be an educational benefit, but porn websites have slid under this provision for years by claiming that their offer of a snippet of a full porn film, or the posting of a few photos from a larger (generally purchasable) photo set is using the fair use of legitimate "review".

The second is fair use by means of parody, and on this one, it's both a finer line, and a broader use. Because parody so specifically relies on knowing the source work, one is allowed a much larger use of that source work. In general, it's understood that to allow parody, likenesses of movie characters, resemblance to popular songs, and broad references to literary works are all allowable fair uses.

The PotterPuffs were an excellent project at the time that fell under fair use of parody. Parodying both the PowderPuff Girls animated series, and the Harry Potter novels by J.K. Rowling, she managed to make enough--and, incidentally, get enough practice as an artist--that she is now working on her own original anime project, in addition to selling commissioned works through her journal.

Parody is also the hinterland that "Weird Al" Yankovic and other comedic singers exist in. Yankovic in particular broadly parodies works of the time, blending music, sound and geeky reference into a melodious accordioned whole, and has rarely been attacked on any side.

Anything that Saturday Night Life has ever done; Mad Magazine has ever done--as a publication or as a skit show; a great amount of everything the Daily Show has done; it all falls under the rules of parody. And while these rules have been challenged, and generally far more often than the rules for review, fair use in all cases has generally been upheld. The exceptions are generally obvious, flagrant flouting of all fair use principles.

By the way, the prohibitions and protections of fair use as a concept? Only apply in the United States, and in Israel; no other country has adopted these measures.

It all comes down to Title 17 of the United States Code of copyright law; the same law that can be used to deny spammers access to your email (but really, who wants to go through that every single time you get a piece of spam email? Most of us just toss, or block, and move on).

This is the exact passage as given regarding copyright infringement:
TITLE 17 > CHAPTER 5 > § 501

§ 501. Infringement of copyright

(a) Anyone who violates any of the exclusive rights of the copyright owner
as provided by sections 106 through 122 or of the author as provided in
section 106A (a), or who imports copies or phonorecords into the United
States in violation of section 602, is an infringer of the copyright or
right of the author, as the case may be. For purposes of this chapter
(other than section 506), any reference to copyright shall be deemed to
include the rights conferred by section 106A (a). As used in this
subsection, the term “anyone” includes any State, any instrumentality of
a State, and any officer or employee of a State or instrumentality of a
State acting in his or her official capacity. Any State, and any such
instrumentality, officer, or employee, shall be subject to the provisions
of this title in the same manner and to the same extent as any
nongovernmental entity.

(b) The legal or beneficial owner of an exclusive right under a copyright
is entitled, subject to the requirements of section 411, to institute an
action for any infringement of that particular right committed while he or
she is the owner of it. The court may require such owner to serve written
notice of the action with a copy of the complaint upon any person shown, by
the records of the Copyright Office or otherwise, to have or claim an
interest in the copyright, and shall require that such notice be served
upon any person whose interest is likely to be affected by a decision in
the case. The court may require the joinder, and shall permit the
intervention, of any person having or claiming an interest in the

(c) For any secondary transmission by a cable system that embodies a
performance or a display of a work which is actionable as an act of
infringement under subsection (c) of section 111, a television broadcast
station holding a copyright or other license to transmit or perform the
same version of that work shall, for purposes of subsection (b) of this
section, be treated as a legal or beneficial owner if such secondary
transmission occurs within the local service area of that television

(d) For any secondary transmission by a cable system that is actionable as
an act of infringement pursuant to section 111 (c)(3), the following shall
also have standing to sue:
(i) the primary transmitter whose transmission has been altered by the
cable system; and
(ii) any broadcast station within whose local service area the
secondary transmission occurs.

(e) With respect to any secondary transmission that is made by a satellite
carrier of a performance or display of a work embodied in a primary
transmission and is actionable as an act of infringement under section 119
(a)(5), a network station holding a copyright or other license to transmit
or perform the same version of that work shall, for purposes of subsection
(b) of this section, be treated as a legal or beneficial owner if such
secondary transmission occurs within the local service area of that

(1) With respect to any secondary transmission that is made by a
satellite carrier of a performance or display of a work embodied in
a primary transmission and is actionable as an act of infringement
under section 122, a television broadcast station holding a copyright
or other license to transmit or perform the same version of that work
shall, for purposes of subsection (b) of this section, be treated as
a legal or beneficial owner if such secondary transmission occurs
within the local market of that station.

(2) A television broadcast station may file a civil action against
any satellite carrier that has refused to carry television broadcast
signals, as required under section 122 (a)(2), to enforce that
television broadcast station’s rights under section 338(a) of the
Communications Act of 1934.
Is it leaping out at anyone else that Title 17 was never intended to be used for non-broadcast violations? Songs, audio recordings, television broadcasts, theatres playing films? The Communications Act was put into place long before the advent of cable television; the provisions of DMCA, in fact, were never intended to apply to the internet.

And yet, it's what we're trying to focus on to protect us on the grid; with provisions that are wildly out of date, meant to apply to mediums in which we are not working, as designers and makers of items.

So what's our alternative? We don't know yet. Both the MPAA and the RIAA, in America, are pushing President Obama to enact more stringent measures to protect their copyrighted works, in terms of media; to date, nothing has been signed into new law. And while both organizations derive a great amount of satisfaction from throwing their weight around, very little is getting done, save for the random, targeted arrests of citizens no different than the rest of us, who just happened to get caught.

All we do know is that if we file a DMCA cease and desist notice on someone we believe is violating our intellectual property, is that most of the time the Lindens will remove that content--at least for a while--due to the strength of that filing. (What happens after, with counterfiling, legal action and actual lawsuits--well, that's up to you. And up to how much you can afford, in terms of profits lost and real-world monies paid out.) And that it can, tenuously at least, be connected to some definition of "fair use".

For the rest...well, we're on our own. Until something better comes along.


Dale Innis said...

I think the basic idea behind "transformative" is that you shouldn't be using your derivative work for the same thing that the creator of the original work was using it for. So if you use part of a play in a review of the play, it's not competing for playgoer eyeballs with the original. If you use part of a play in a parody of the play, you're basically commenting on the original, so again it's a different level of usage. The content has been "transformed" into something with a different purpose.

At least that's my naive reading of the word "transformative". :) Deciding whether or not it applies in the various hard cases is of course another thing entirely...

Emilly Orr said...

Absolutely; take any movie (or publication) of National Lampoon's, for instance, or the Engrish versions of the Lord of the Rings films, or even better, Lord of the Peeps. Lord of the Peeps quotes largely from both the movie version and Tolkien's original writing, but because it is broad parody, it is allowed. No one can possibly confuse sugary marshmallow candies dressed up as fantasy creatures as a serious attempt to retell the story.

The same cannot be said of the man who wished to publish the Harry Potter Lexicon. What got Vander Ark into trouble, after all, was not the stated purpose of the book, but the fact that it quoted such large sections of Rowling's original writings. This fell neither under fair use or parody provisions.

The problem, in the realm of digital graphics--and I'm beginning to think that digital art, truly, is where the prohibitions and responsibilities of grid design lie--is there are few hard and fast rules, at least as far as fair use and parody. And, while the Labs are based in the US, many users of Second Life are international, and rely on their own local laws of copyright to protect them--or not, as the case may be.

Edward Pearse, Duke of Argylle said...

The 12 works of Steampunk fiction is an interesting list, though I find myself surprised that you don't agree with anything on the list. The Difference Engine I would certainly place as one of the essential starting points for the genre. The Anubis Gates I'd add as it's the best (IMHO) of the original stories that Jeter referred to when he coined the phrase Steampunk. Girl Genius and "League" are great though perhaps not essential. The Diamond Age isn't steampunk though. It reinforces how often people get it wrong.

If I ever find an affordable copy of Nevins' Encyclopedia of Fantastic Victoriana I'll be snapping it up though.

As for the zombies in Babbage, there was a little problem when the old Academy was finally cleared of debris to make it accessible again. Then of course Mr. Footman thought that this new undead workforce would be a boon to workhouses and industry - until one came loose from it's electric collar. It's Babbage after all. What could possible go wrong?

Emilly Orr said...

*coughs* I meant, I *agree* with that list! Argh...

Though I did think Jeter coined Steampunk after Powers wrote The Anubis Gates...?

Edward Pearse, Duke of Argylle said...

Yes, Powers had written Anubis Gates before Jeter coined the term but he listed Powers and Blaylock as the examples of his proposed new genre. The fictional poet William Ashbless that is referenced in the book also turns up in one of Blaylock's stories.

Emilly Orr said...

*reads through that again and realizes she skewed the timeline*

I'd actually toss in Tim Powers as a great historical fantasist in general. Both Gates and On Stranger Tides are marvelously deranging historical romps, and even Dinner at Deviant's Palace is a wonderful read--dark, disturbing and unnerving, but wonderful.

And I love that Ashbless wandered as a character. I keep waiting for someone to drag him into something else...