Same Shit, Different Day
|Title:||Same Shit, Different Day|
|Date(s):||April 19, 2003|
|External Links:||Same Shit, Different Day; archive link|
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Same Shit, Different Day is a 2003 essay by maygra.
It was written in response to a unknown fannish kerfuffle.
Some Topics Discussed
- fandom and visibility
- fannish entitlement
- fans may have more to worry about from fellow fans than from TPTB
- cease and desist letters
- linking to fansites without permission
- much, much about legalities of fanworks in the comments
From the Essay
When I first got on line and stumbled over the thing we now ubiquitously call "media fandom", the huge brouhaha at the time in HL fandom was a disagreement some fans had with a single individual who had compiled a massive amount of links, trying to bring a central location to all of the HL sites from archives to script transcripts sites and everything in between, including a lot of people's individual sites and homepages.Now, while online fandom had come into being and was steadily growing, there was still a lot of nervousness by fans who came in from off-line fandom who had been involved in or witnessed any number of unpleasant examples of TPTB flexing their muscle a bit. Or who had only heard about them -- friend of a friend of a friend was C&D'd and dire consequences awaited them.
Back to the King of Links. A lot of people objected to this, because he would include links without permission. And upon being requested to remove a link, he would refuse. Threats were made, arguments were voiced, flame wars erupted, and the King of Links held fast. There was nothing, nothing anyone could legally do to enforce their will on him. He baited and dared people to take him to court. He posted his own legal defenses comments on the then very sketchy approach to copyright, privacy and the internet.
It went on for months. Eventually people lost interest, or he did, and as far as I know, the link page is still there but most, if not all, the links are worthless. I doubt seriously that anyone ever took him up on his invitation to court. And shortly thereafter, Geocities appeared on the scene and a few other free hosting services and on-line fandom pretty much exploded across the internet.
But his argument then boiled down to something that still holds true. If you put it on the net, and someone can find it, be it a homepage, a picture, artwork, vids, stories or your personal resume, you have pretty much lost the ability to maintain control over that bit of data. You can put up all the warnings and pleas you like, you can password protect your site, you can make it unsearchable by search engines and robots, but if one person posts that picture elsewhere, or that story, or that password…you've lost the battle. Oh, you can take your stuff and move it. You can scream and shout and stomp your feet and threaten to have them TOS'd by their ISP's. You can defame their name from here until kingdom come. But in reality, your methods of control are limited and rarely infallible.To some extent, however, you can rely on the integrity of other fans to respect what boundaries you set. But that only goes so far. One fan who has no respect for anyone's boundaries, whose focus is entirely fixated on what they want and how best to get it, is all it takes to undo the good intentions of a thousand other fans. It doesn’t matter if you are right or wrong. The deed is done.
And in the nether gray world of fanfiction, fan art and fan vids, of thousands of faceless, pseudonymed participants in the hundred-plus areas of interest that is online fandom, those few people make all the difference. You can't trust them. You can't reason with them. You can't protect yourself from them and still participate on every level in every area you would like to. You can't depend on them to use common sense or common courtesy in dealing with material that is already dancing the thin wire between illegality and fair-use. They will take your work and post it elsewhere. They will take your stories and put their names on them and cry foul when you cry plagiarism -- because you, of course, don't have any legal claim to the source material either, so how can it be yours?
You cannot expect that everyone will share your ethical boundaries. While there are most certainly a lot of people who will join you in the sandbox and happily share your toys with you, there are those who will take your toys and run away with them.And there is not, realistically, one damn thing you can do about it, except to do your very best to minimize your risk.
For most of my fannish life, my concerns have been primarily focused on not bringing enough attention to myself (or my fandom) to make the TPTB look around and notice. They seem, for the most part, willing and able to ignore me and mine as long as I don't try to make them look like idiots or fools, or try to somehow capitalize monetarily from my ill-gotten gains and hours of source material.
But the new boogey-man isn't really Fox networks, or Mutant Enemy, or George Lucas, or Anne Rice. And this boogey-man really isn't new. He/she is just an email address away, or on the next LJ or one of the people on your favorite mailing lists. He/she really isn't so much out to get *you* as he/she is out for him/herself. The boogey-man is the fan right next to you.Some people call this boogey-man a sense of entitlement -- I've used the term myself. But even in doing so, I'm admitting that there are people out there whose ethical choices don't mesh with mine, whose rationale is so far afield from mine I can't even fathom it. We have nothing in common save for the one thing above all -- fandom.
So, the choices presented to any fan are pretty limited. And honestly, as in the movie Wargames, the only real way to win is not to play.
But if you play, be very careful about what you risk. The actual risk of losing control of your fannish output, of your creativity is pretty small in the grand percentages of these things, but it only has to happen once for you to feel violated and betrayed. If you don't want people to steal your vids, don't leave them up on your servers for long if at all. Password your site. If you don't want your stories to be taken and plagiarized don't archive them from here to everywhere. Change your URLS frequently. Be paranoid.
Or not. Raise the hue and cry if you are violated and pray that some of your basic ethical standards will be recognized. Defy the odds, and leave yourself wide open, your work available, and your creative output undaunted.
Or find someplace in the middle. Know that it can happen to you. Know that while Public Domain really isn't a status associated with every bit of data out on the internet, public access is. Trust your friends, but know that not everyone on the internet is your friend or even friendly.
And when some asshat claims that because you're already infringing on copyright, that you have no control and no right to control your output or what happens to it -- be aware that he/she is correct. You have no *legal* right to claim ownership (you know, until some fan actually gets taken to court and *wins*.)Fandom has no Geneva Convention. Fandom has no SEC dictate or court appointed jurisdiction to enforce ethical standards. There is no fandom police. Fandom has…fans.
And lest you think I'm fortelling doom in the manner of the three witches of Macbeth -- I'm not. I have some six sites with fiction, artwork, archives, journals, blogs, rants, raves, and resumes scattered about on the World Wide Web. One of them is passworded -- with a flimsy system at best meant primarily to ensure people read the disclaimers and understand what they are about to see and read, as opposed to try and protect myself from TPTB or protect myself from content theft by other fans. And the site is virtually mirrored elsewhere with no password. I rarely allow archiving, but I do allow links. I even occasionally change those links. I have no idea, really, how many people hit my sites in any given month. For all I know, no one is and few are reading. I don't make vids, but if I did, I probably wouldn't have them on the net, or if I did, I would have them password protected (and that really would be more in response to the RIAA's rather aggressive hunt & prosecution of copyright violaters of music and lyrics, than to save myself from TPTB of major television studios.)
I don't think fandom is an evil place. I don't think the majority of fans are anything but fairly reasonable, rational, and for the most part, respectful of the rights of ownership and fannish creativity as it applies to their fellow fen (even when they may be ripping said fan a new one, or disemboweling their latest story.)
But I do think some fans, possibly even the majority of fans, are being dangerously naïve if they think that all fen are created equal, or that the only threat to their continued enjoyment is TPTB.
The Powers That Be don't need to hunt us down or look for us. We have fellow fen who quite blithely point out our caves and cliff-dwellings, slums and condos with prideful glee at how clever we all are. Who mistakenly believe that physical, tangible proof of the adoration of fans will somehow be received gratefully and thrillingly by those same powers.
There are fans who view fannish output as common property, who believe they have the absolute right to take anything they find on the internet and put it toward their own use. They don't care what you think, what your friends think, or what other fans think. To them, your fannish output is merely an extension of the source material and since the use of that is already in legal question, they are in no further violation, or in any worse violation, of claiming or using or posting your work than they are of using the original source material. If you aren't respecting that very valid legal right, why should they be in any way concerned with your incredibly nebulous and grey right to your own derivative works?
Be really clear: I don't agree with this stance. I am a firm believer that fans have to police themselves, that it is possibly more important to respect one another and extend common courtesy if only because there is no other recourse once that unspoken agreement is breached. Someone else said it far better, (SilviaKundera said it best: " If you alienate the people who go about creating these things you love... you won't have any more. It's not terribly complicated logic."
At the same time, it's easy to forget that in the fast paced life we know as on-line fandom. It's easy to drop your guard. It's easy to forget people like the King of Links. Today's battleground is the next minute's old news. So, the pattern repeats itself.
Over and over.
And at the root of it all, is the same thorny problem: fans do what fans want to get more of what they want, when and how they want it. It's true of the fic writers posting to a half dozen lists and equally as many archives. It true of the screen cappers and the vidders and the artists. They want to create, they want to share, they want to hear back from the people enjoying the fruits of their labors or there would be no real reason to make any of it available in the public access forum that is the internet. The same is true of those whose "lack of respect" drives so many of us batshit or into temporary exile. They want to create, to be seen, to share, to get accolades. The motives are the same.
But the devil, as they say, is in the details. Your sense of entitlement to create or enjoy derivative works in the way you like is not a singly-defined, universally accepted standard.Keep it in mind the next time you put something of "yours" out there for "them".
Comments at the Post
... I think Witchqueen had the right of it -- this is kind of like closing the barn door after the horses have escaped.
I meant to compliment you. You seriously handled yourself very, very well on the FF thread. But I have to admit, as soon as the name calling and the comparisons to the messiah started, it was pretty much over for me. The only thing lacking was a a reference to Hitler, Nazi's, or baby killing...or all three.and I had such a great post going on in my head. Succatash: Messiah or Moron. You decide.
[taraljc]: I said my piece and backed off days ago, and just have spent all day BOGGLING at where it has all gone. Tho making twinkie icons cheered me this morning greatly.
[maygra]: I was...unsurprised I think. I worry about vidders more, I think. On both sides of the issue -- re: having their work pirated, and because the RIAA is even more rabid than Disney about pursuing copyright violators. I'm such a huge fan of vids, and so very aware of how much work goes into them, that the idea of not having them...it's very sad. But I have to admit I rarely access on-line vids. I do think it's a foolish risk for the most part, and I really don't get any gratification contributing to something that puts the vidder at risk, even if they want me to. I'd rather pay them shipping and CD or VHS cost than see a vid online.
Christ, I'm glad I'm not in fandom anymore ...
One of them is passworded -- with a flimsy system at best meant primarily to ensure people read the disclaimers and understand what they are about to see and read, as opposed to try and protect myself from TPTB ...
This is an interesting comment, though. I've put my fic up without pwding, but I do pwd the Star Wars and Potter stuff I've written. (No Potter slash yet, sad to say -- not without knowing more about how Snape ended up a Death Eater.) The passwords require an age statement from the person requesting them, which is no security whatsoever, but part of the reason why TPTB have disliked some SW and Potter explicit fic has been that they maintain that kids can get at it. At least this way, I've put up a bit of ass-covering for myself by requiring that someone state that they are over 18 before I send them the pwd for my SW/Potter fic.
Does it work? Not necessarily, although you'd be surprised at the number of requests I get that say, "May I please have the password?" and do not include an age statement. Perhaps they think sendmail lets me detect their age through the ones and zeros. :-)
But at any rate, part of my pwding is indeed as a sop to TPTB, just to let them know, should they ever find my stuff, that I am at least aware of their concerns.As far as the validity of those concerns go, though ... Well, if Warner Bros. didn't want people to slash Harry Potter, they shouldn't have hired Alan Rickman and Jason Isaacs to play their characters. Those guys make my tongue vibrate.
Very well said. However, I just wanted to clarify this point:
And when some asshat claims that because you're already infringing on copyright, that you have no control and no right to control your output or what happens to it -- be aware that he/she is correct. You have no *legal* right to claim ownership (you know, until some fan actually gets taken to court and *wins*.)
Actually, this isn't correct. When someone creates a new artistic work which is a derivative work then a new copyright in that work automatically subsists and belongs to the creator. This is irrespective of whether this new derivative work was created in breach of someone else's copyright. If so, then the original copyright holder can sue for breach of copyright certainly, but it does not invalidate the copyright in the derivative work. So, actually, you, the fanwriter, vidder, fan-artist etc does have the legal right to claim ownership in your work, a claim which (in theory) should be upheld against anyone other than the original copyright holder, assuming that you've breached his copyright in the first place.I should also add that fans who state, 'Oh, but of course we're all stealing from TPTB anyway' as a matter of fact are wrong - there are cogent arguments that fan-produced artistic works do not actually breach copyright in the first place. My understanding is that these arguments are stronger in some jurisdictions than others, for example, I think under UK law I'd have a fair chance at arguing the point successfully, but there are also arguments under US law. Whether fan-produced artistic works actually do breach copyright remains an undecided point. These works may well breach some copyrights (US, for example), but not others (UK). I just thought I'd mention it because I see this argument trotted out all over the place as though it's gospel when it clearly isn't.