Talk:Omegaverse Litigation/Lindsay Ellis videos

Initial Writeup

Author note: I utilized the video transcripts in order to create the quotations, and to the best of my knowledge and ability they're correct and accurate.

An initial video Into the Omegaverse: How a Fanfic Trope Landed in Federal Court was uploaded on September 3 2020 as a piece of commentary on the Omegaverse Litigation case overall. The first 20 minutes of the video summarized the trope of Omegaverse, initial details about the Addison Cain vs Zoe Ellis Case, and included a cameo by Devin of Legal Eagle regarding DMCA notices and why platforms often remove content without doing independent analyses to check whether the takedown notice is legitimate. The next 20 minutes compare plot points of Cain and Ellis’s books, highlight other times Cain has gone up against other authors claiming they plagiarized her, and summarizing what happened in the court cases. The last 20 min roughly covered reasons why Blushing Books offered a complete settlement to the Oklahoma case; details of Cain’s post about the Virginia case results; and presenting the argument that the way Cain portrayed and framed the Virginia case was not accurate. Lindsay Ellis wraps her overview of the events saying:

Timestamp – 59:06. so she's (Cain) trying really hard to frame this as an I was right all along and this is a win for authors and I’m helping you actually when in reality after the details of her involvement and malice and subsequent perjury were revealed to the court in the Oklahoma case… her publisher settled because their author perjured herself and Cain got to walk away with effectively no consequences from that, while the other lawsuit against her in another state fizzled and died for completely unrelated reasons. And that is how it ends...

…so if you were reading this as an invitation to go harass this woman, first of all what the hell is wrong with you? And also why are you even watching my channel? Second, don't. But this is less a cautionary tale of one vindictive author. The New York Times article claims that it raises a deep legal question, but it isn't really a deep legal question about who owns ideas. If there is a deep legal question it is how can people without the resources of giants like YouTube protect themselves from bad faith DMCA claims?

DMCA counterclaims do exist as a barrier, and Zoey Ellis did use them, but clearly that wasn't enough because Cain and Blushing (Books) steamrolled right through them and kept issuing takedowns for months. So a lot of the focus on this case was on the weird fanfic subculture, and not the fact that cases like this can and often do set important legal precedents. To me this is less about a “Too Horny on Main” train wreck as much as it is a good example of how laws designed to protect giant corporations are written in presumed good faith and assume that everyone is going to play by the rules.

(Cain quote) “I tried to protect authors”

Well as a fellow USA Today best-selling author who writes extremely niche trash involving questionable use of non-human anatomies, um, I cannot say I feel protected by this. If she had won this thing, which she didn't, that would have meant despite her claims to the contrary that you can actually own genre tropes which would make creating that much more difficult and give bad faith actors that much more arsenal to attack their fellow artists. And in cases like these we do kind of need to say something when bad faith actors try to use this sort of thing to their advantage, and it might inadvertently strengthen already draconian copyright law pushed by the likes of the Walt Disney company and all for your petty vindictive bullshit.

So this attitude is bad. Don't do it. You can't own tropes.

This initial video thus served as a primer about the scandal for viewers not in the know; a critique of the “petty fandom bullshit” that Lindsay argues underpins the dispute between the authors; and an argument that while intellectual property claims and fandom tropes are centered in the controversy, these were of lesser consequence for creators than the legal precedent about 'owning tropes' that might be set by the case - which Lindsay argues would actually hurt current or future authors.

Subsequently, a video was published on October 23, 2020 describing the aftermath of the first video. In Addison Cain's lawyer e-mailed me, and it only got worse from there, Lindsay reiterates that she specifically requested no one harass Addison Cain and acknowledges that she had to demonetize the initial Omegaverse video. After a review of some key players, Lindsay reveals that on September 4th 2020 she received an email from Addison’s Cain’s lawyer demanding she take the video down. In subsequent days, she was contacted by both Patreon and Youtube saying DMCA takedowns had been issued because some content of Cain’s book was read aloud in the first two minutes of Lindsay Ellis’s first video. In Patreon’s case, Lindsay said:

Timestamp – 7:51. So I talked to the legal team at Patreon for a while, we discussed some options, and what we decided was that they, in order not to be on the hook legally just in case litigation came down the pike... we will honor that DMCA takedown notice. And all that meant was that I had to unlink the YouTube URL from the Patreon post for ten days. And then relink it. So I send the DMCA counternotice and Patreon basically tells Addison Cain and her "lawyer" that they have ten days to sue me or I can do whatever I want with the content. And here's the thing, despite my years and years of doing this, I've never actually gotten a DMCA takedown notice before.

In Youtube’s case, Into the Omegaverse: How a Fanfic Trope Landed in Federal Court had its ads reported, the URL reported on Twitter, and the video temporarily age-restricted due to other reports filed by unknown parties. Youtube contacted Lindsay Ellis saying they thought the DMCA Takedown received for the video was bogus, and provided Lindsay with the letter Addison Cain sent to Youtube because they legally had to. Lindsay dissects the claims made through the DMCA takedown letter by Addison Cain of copyright infringement and defamation, and gives a brief overview of some key points regarding Fair Use in copyright law. The remainder of the video discusses other parties Cain remains embroiled with, including Zoey Ellis, a number of other published authors, and lawyers or other legal experts. Lindsay Ellis said:

Timestamp – 34:51. So, why bring all of this up? Well, originally, this video was meant to be sort of a learning experience about copyright. But obviously, this isn't about copyright. Some people just want other people to shut up. And sometimes she (Cain) uses copyright law to do it. But most of the time, she doesn't.

Like, the way she uses this word "defamation" just so eagerly. I'm reminded of the way that el presidente is just so eager to expand libel laws in the US to be like the ones in the UK. So really this isn't even about copyright law anymore. And it never was. It's about deplatforming.

Cain has people she doesn't like. She wants to deplatform them. Just sometimes she uses the DMCA to do it. And I think this is really interesting because while I think she's wrong and is definitely abusing systems that are in place to protect people, it does kind of highlight a major problem. Which is that platforms don't really care about abuse. They don't care about harassment. And before you go there, Addison, no by no meaningful definition, legal or ethical, does this count as defamation, abuse, or harassment. However, as someone who has multiple times been on the wrong side of coordinated harassment campaigns, and is also friends with people who have gone through way, way worse, including having to move, sometimes move cities, I feel like I can say with some certainty, that platforms don't take harassment seriously. But you know what they do take seriously? Copyright.

Lastly, Lindsay describes how the EFF (Electronic Frontier Foundation) decided to take her on, and responded to the DMCA Takedown letter that Cain had sent; it isn't clear whether the EFF responded to the letter sent to Youtube, to Patreon, or to both. Addison Cain responded with a long letter alleging among other things that Lindsay Ellis was somehow supported by the EFF and OTW in the production of her first video. Lindsay responded:

Timestamp – 43:22. Neither EFF nor OTW has anything to do with the production of that video. No collusion.

To date, I have not made a donation to EFF, especially since the damn video was demonetized. I only chose EFF because they were a nonprofit that was relevant to the topics of the court case. But Jesus Christ, the moon logic of bringing the OTW into this. Like, I don't even have an AO3 account. I have no contact or affiliation with OTW. I did reach out to them about this video, and they left me on read. The only connection I have with OTW is I wrote one article for them earlier this year, when my book came out, that nobody read. And I lost a Hugo to them last year. For best related work. You guys deserved to win the Hugo. It's fine.

But the moon logic of even connecting OTW to this case is that Ellis's lawyers hired Kristina Busse as their expert witness on the topic of fanfiction, and she happens to be on the board of OTW… In this case, the fact that the EFF has worked with OTW before on completely unrelated things, means that there is a fan fiction deep state keen on taking Addison Cain down.

Lindsay's comments regarding Kristina Busse were inaccurate; she was brought on as an expert witness, but is a former OTW Board Director and a current volunteer. Lindsay points out how much of the timeline and legal interpretation that she covered in her initial video came from a podcast called All Lawyers Are Bad. Lindsay speculates as to why Addison Cain didn't go after the podcast creators:

Timestamp – 45:55. And they read out loud about as much copyrighted material as I did. And they were also a lot harsher. Going so far as to call Cain things like (redacted)... They also use her real name a lot, which I never did. So, I wonder, why did they never get a DMCA takedown notice or emails from her lawyer, Tynia?

(Excerpt from the podcast where they call Addison hot)

Uh huh. I guess that'll do it... And something that one of the guys in the podcast said inspired her to commission fanart of herself drinking the blood of her enemies.

The fanart in question is available to view on the artist’s Twitter and on Addison Cain’s Facebook page.

Lindsay concludes her video saying:

Timestamp – 49:01 And I don't want this to be the Addison Cain drama channel. I genuinely hope this is the last video I make on this subject. By which, I mean I hope we don't go to court.

That said, it is petty fandom bullshit, but it does real harm. In the great Regina George tradition, this does have impact on people's lives. Every single author that I talked to (except (one)) said that their careers have been harmed by everything Addison Cain has done. From DMCA on to petty fandom bullshit. Now that said, to reiterate myself: Don't harass her, god damn it! She blames me for every single one of you idiots that are shitty to her on social media.

I understand the energy needing to go somewhere. We're in quarantine and public shaming is fun. But if you really want to piss her off, instead of being an asshole on Twitter, support the authors that she has targeted. I was really glib about the whole erotica thing in the first video, and I kinda would like to backtrack that. Erotica is a real, legit genre, and if you're into it, go check them out. Most of it's ABO. Not for me. But it might be for you. Awoooo!

The second video thus focuses more on Addison Cain’s behaviour behind the scenes of the litigation, the impacts her behaviour is having on people, and the impact such behaviour might have on other authors who want to move into a publishing career based on the writing they’ve previously done for fandoms or using fannish tropes.

Both videos are being discussed in fannish spaces. See, as an example, this post on Tumblr by whencartoonsruletheworld from September 5 2020, updated on October 23 2020, which has over 36000 notes as of October 25 (13000+ reblogs). The videos are also being discussed on sites like Reddit

The second video was also commented on by cfiesler, a member of the OTW legal team, who discussed in a Twitter thread the ins and outs of Fair Use as it applied to Lindsay’s video, and reaffirmed there was no involvement from the OTW in producing Lindsay Ellis’s videos . Another Twitter user reacted with a meme regarding the claim about the OTW.

-- Lightdescending (talk) 18:34, 25 October 2020 (UTC)

Discussion

A couple of meta-notes that I realize may be absent from the writeup: In Lindsay's videos, her sources are 1) the ALAB podcast for establishing a timeline and 2) the publicly available documentation from the courtcases and 3) copies of DMCA takedown notices or letters sent to her directly either by Patreon, Youtube, or by the EFF when they got involved on her behalf. I don't think that I described what sources Lindsay herself was citing. -- Lightdescending (talk) 19:02, 25 October 2020 (UTC)

I've only watched the video today, so I' playing catch-up a bit. My immediate response is that this needs its own page. And that's just down to the last two paragraphs. These videos have inspired debate and discussion in fandom separate from the lawsuit. We can expand on that, using fan comments to build a page. I just have no idea what it would be called, but the second video definitely seems to have inspired more of a response than the first.

If I had to nitpick one thing, I'd remove the references to lawyers and not include their names if possible. This relates to contested edits on the original page. There was agreement there not to mention lawyers or their families, as the implication they were doing something wrong wasn't something we had evidence for. So for balance, I'd remove the lawyer's name that Lindsay kept mispronouncing in the 2nd video.

Also the expert witness hired by Zoey Ellis' team is Kristina Busse - she's got a fanlore page already. Lindsay was wrong to say Kristina is on the Board. She's a former Board Director and a current volunteer. We'd need to make it clear that Lindsay's comments are inaccurate there.

Overall I think this is a good basis for a page about these videos. And I'm hoping other editors will agree. --Auntags (talk) 21:35, 25 October 2020 (UTC)

Thanks so much for your thoughts so far! I'm happy to make the suggested edits in the draft above(ie: removing the lawyer's name) and a comment regarding Kristina Busse's mention while waiting for other editors to give feedback. -- Lightdescending (talk) 23:17, 25 October 2020 (UTC)

I've removed the name of the lawyer and corrected the spelling of Kristina's name (I missed that the first time; my original spelling came from the transcript of the video! Apologies!) and made a note that Lindsay's comments regarding Kristina's standing with the OTW were inaccurate. Thanks so much for weighing on what's here so far; I'd be glad if it could be a useful starting point and look forward to hearing from any other editors! -- Lightdescending (talk) 23:33, 25 October 2020 (UTC)

Thanks so much for working on this, Lightdescending! I agree with Auntags that this deserves to be a separate page, as it's really blowing up in fandom and there is now "Fanfiction Deep State" merchandise and the EFF has published a letter responding to Cain and Techdirt has published an article on it.

Regarding feedback on your page so far, I think since we've agreed that this should be a separate page and thus won't be affected by the lock on the Omegaverse Litigation page, you can go ahead and create it and then others can just make edits to it directly. With that said, I think the draft you have here focuses a bit too much on what each video covers, which to me is the equivalent of a "too much canon" problem. Definitely do summarise the points that they hit, but I think the quotes used could be shorter, and the summaries and quotes should focus more on the aspects linked to fandom (discussion of A/B/O, tropes, and "fanfiction deep state" conspiracies) and less on the legal/copyright aspects. I would also incorporate more fannish response/discussion - but we can easily add that to the page once it's created! It's a great start :3 -- enchantedsleeper (talk) 20:17, 27 October 2020 (UTC)

My pleasure! Tracking this story as it's developed has been supremely entertaining to me in the last couple of days so I'd be delighted to create a separate page. I'm happy to shorten some of the quotes before posting, but I've also been collecting some additional links and examples of fandom responses to the videos. I'll try to have that created and posted in the next few days when I have some time to work on it! Thanks so much for your thoughts. -- Lightdescending (talk) 01:26, 28 October 2020 (UTC)

Oh, one question - would it make sense to add the new page as a Fandom Occurrence / Event? -- Lightdescending (talk) 02:10, 28 October 2020 (UTC)

Hey Lightdescending, I would use Template:VideoEssay and Category:Fandom Occurrences. You could also add Category:2020 or Category:2020 Meta (whichever you think is more appropriate). We were also considering adding a category for video essays/meta on video awhile back, so I'm going to try and find that discussion again. If we create that category, I'll add it to the page too. --Auntags (talk) 11:12, 28 October 2020 (UTC)

Thanks so much to both of you, EnchantedSleeper and Auntags! I've created 2 pages using the Video Essay template: Into the Omegaverse: How a Fanfic Trope Landed in Federal Court and Addison Cain's lawyer e-mailed me, and it only got worse from there. I feel like right now the second one is more fleshed out with examples of fannish response and wider discussion, though I do have some other posts/commentary I think could get recorded/added into each article. I hope these will be some good starting points for other editors! I took some cues on what sections could be included from a couple other video essay pages on Fanlore. Cheers, -- Lightdescending (talk) 23:11, 1 November 2020 (UTC)