Me vs. Ao3 Take 3

[shadowkat]

Ao3's response to my emails:

We are aware that clarification with regards to the Archive's established position on ephemeral content could be a valuable addition to the Terms of Service or Terms of Service FAQ. However, as these are legal documents, any potential revisions to them would require a great deal of consideration before the changes can be proposed, drafted, discussed, finalized, and voted on by the OTW Board. As such, we are unable to provide a timeline for when this might occur or state what form those revisions might take at this time.

However, our Terms of Service and our TOS FAQ are not intended to contain a comprehensive list of types of works that can or cannot be posted to the Archive because it would be impossible to generate such a list. Furthermore, the term "ephemeral content" is not intended to mean only review-type content. It also includes, e.g., prompts and advertisements for fan events.

As we informed you in our previous email, we do permit fannish non-fiction (or "meta") on the Archive. You can read more about how we define meta in our Terms of Service FAQ: https://archiveofourown.org/tos_faq#fannish_nonfiction

Regarding the role of ephemeral works in preserving fannish history, many ephemeral items are highly valuable to historical research. However, as our Terms of Service FAQ states, "as an Archive whose goal is preservation, we want permanent, nonephemeral content." Items of historical value are not necessarily suitable for posting to the Archive.

The Terms of Service are a legal document to which you agreed when you created your account. If you wish to use the Archive, you must comply with our Terms of Service.

If you have any further questions, please reply to this email. However, further messages disputing our policy on ephemeral works may not receive a reply.

PBJ
AO3 Policy & Abuse

My response:

If your terms of service are vague and open to interpretation, and you have not defined what is meant by ephemeral and non-permanent works than it can’t hold up in court. I know I negotiate contracts for a living.

"Ambiguity in contract law can result in a void or voidable contract, depending on the type of ambiguous language identified in the agreement. A contract might be ambiguous if the language itself, i.e. a specific term, word, or phrase, is reasonably subject to more than one interpretation.”

Often an entire contract can be rendered void - if the terminology is determined to be open to interpretation. I’m surprise your lawyers aren’t aware of this?

Also there is precedent that reviews of films, books, and other media are permanent works - and have been published. Plus people have published reactions to Twilight, and other works - see Mark Watches. These people are fans of the work.

Personally, I don’t care that much. But someone else might. That’’s the reason contracts define their words - to ensure that people don’t different interpretations. I write, manage and negotiate contracts for a living. Your terms are embarrassingly vague.

Go here for more information on Ambiquity in Contract Law.


ETA - I went to read their terms of service, and they don't list the content of mine that they want to remove anywhere in there...

I think you need to read your own terms of policy and abuse?

"
What falls within the definition of fannish nonfiction?

Fannish nonfiction can be discussions of fannish tropes, essays designed to entice other people into a fandom, commentary on fandoms, hypothetical casting for alternate versions of works, documentaries, podcasts about fandom, explanations of the creative process behind a fanwork or works, tutorials for creating fanworks, guides for fan-created gaming campaigns, or many other things.

However, the nature of the Archive and the limitations of our resources mean that, while we will endeavor to host as much fannish content as possible, we need to put some limits on allowable works. In particular, the Archive is not a journaling service and it is not designed to host ephemeral content.

In addition, we have a separate project, Fanlore, which is a wiki designed to chronicle fandom history. Some fannish content, especially discussions of specific fandom-related events such as conventions or debates over particular incidents, may be more appropriate for Fanlore than for the Archive.

We will, in general, defer to the creator's characterization of a work as fannish nonfiction as long as it has a reasonably perceptible fannish connection, either to a specific source or to fandom in general, and takes the form of an independent, nonephemeral commentary. For example, an analysis of or commentary on multiple fanworks falls within our definition (and must comply with our other policies, including our harassment policy). An essay on a particular character's narrative arc in canon or of the interaction between film and comics versions of a source is also within our definition.

We understand that, as with many things, there are hard cases at the edges of categories, but we nonetheless need some limits in order to keep the Archive manageable for our hard-working volunteers as well as for other users.

What isn't fannish nonfiction?

The examples are potentially limitless, but here are some examples that we believe, based on our experience so far, do not qualify as fandom nonfiction and should not be posted as a work:

1. episode transcripts and other non-transformative fandom material;
primarily autobiographical or non-fandom-related essays (e.g., essays on bike lanes, even if they contain a single reference to a fannish source);
2. general complaints about behavior towards a particular creator (e.g., a post stating that a work was deleted due to lack of feedback);
suggestions that other fans contact the creator through email or other social networks;
3. a single word or pairing name repeated hundreds of times;
offers and giveaways.
As with all works, we presume good faith on the part of our users, and ask that you do the same for the fans who make up our Support and Abuse teams."

Film reviews and episode reactions aren’t listed. Also the “transformative work” is a legal term associated with fan fiction. Film reviews, episode reactions, character analysis, fandom analysis, are all considered transformative legally. We are permitted to comment, react to, and relate to another’s work, we are not permitted to make it our own.

Again, if you do not list film reviews and episode reactions in your terms of service - you cannot delete them as non-ephemeral works. You can’t prove they are.

Sigh. These idiots give fandom and the legal profession a bad name. Also they are skating a thin line in regards to the legality of their site and interpretation of what a transformative work actually is. They'd be better off limiting some of the fanfic and allowing more fan reviews and commentary. Less likely to get kicked by copyright holders. That's what other sites like DW, Tumblr, and various fanboards did. If fanfic is not permanent, the copyright holder is less likely to get pissed about it.

Discussed this with Wales today, who was highly amused. First I had to explain my history with the site.

Me: I didn't post anything to it when it first cropped up because it appeared to be exclusive to fanfic. I thought it was poorly named. "archive of our own" - should have been "archive of fanfiction", exclusive to fanfic. But anyhow, sometime around 2020 they started doing "meta" challenges and I was told by friends to post my meta to the site. That they really needed meta. Meta is kind of ambiguous and broadly defined - but mainly it's scholarly character analysis, analysis of series, analysis of fandom, etc. At that time I wasn't sure if it included film but usually it does. Anyhow, in 2021-2022, I noticed that friends online were posting film reviews and episode reviews to it - and thought, okay I should do that as well. And I spent a lot of time doing it. Stupid me. But I checked their FAQs and all they stated was non-permanent, non-ephemeral, and non-fannish works would be accepted.
Wales: Ephemeral?
ME: It means for a very short period of time.
Wales: So they don't consider a film review of The Help permanent but fanfiction is?
Me: Yep.
Wales: And let me get this straight - they have attorneys? They are taking themselves awfully seriously for a fan site. [Wales works for a law firm - specifically in the contracts division. She's a legal secretary/paralegal.]
Me: Well it is fanfiction - they kind of need attorneys. Fanfiction is loosely allowed under a very small loophole in copyright law - aka the fair use exception.



Fanfiction in its current form is an infringement of copyright. Fanfiction is defined by the use of characters and expression from an original creative work and the creation of derivative works, all of which is illegal under current copyright law (McCardle, 2003). Most fanfiction expands beyond the limited allowances to comment and critique allowed through fair use (Johnson, 2016). They also borrow substantially from the creative work, and fair use is less likely to apply the more of the original substance is copied (McCardle, 2003). As characters typically closely resemble the characters in the original work, and are not hyperbolised to the point of parody, the ‘parody’ fair use argument does not apply. Some characters, settings, and plot elements are also trademarked, serving another avenue for prosecution. (McCardle, 2003).
- from an article about Copyright Law Being Dead due to the current digital allowances in regards to fanfiction


Hence the reason they have copyright attorneys. Albeit not necessarily good ones. A transformative work - fits critical review, analysis, scholarly analysis, episode reactions, or a fanfiction that falls under meta or commentary on the work (such as parody, satire, or non-commercial sharing of ideas). But apparently they don't have contract attorneys. Note like all professional fields, attorney's are not knowledgeable in everything - they tend to specialize. And contract law and copyright law varies from state to state, province to province and country to country - but one thing remains true - fanfiction isn't legal under intellectual property law, it is allowable under a loop hole known as the "fair use" clause. Also, if you are not precise and clear in your contractual terms of service - your terms could be voided by a court of law for vagueness. Particularly since you have multiple languages and translations.

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.

Go HERE for more information. Source US Copyright Office.

I wouldn't have any issues with Ao3 - if they were clear, and honest, and not self-righteous hypocrites. The "transformative non-ephemeral/permanent" bits are highly problematic per the above. Because ephemeral fanfic is more likely to be allowable than non-ephemeral for well obvious reasons.

I'd understand if they were targeting works that could be considered copyright infringement but these are film reviews.

Anyhow, I'm done with that site.