Forum: Story Ideas

https://www.syfy.com/syfywire/how-to-keep-fanfiction-legal-and-avoid-trouble-with-lawyers

Quote from there: "No U.S. court has ever held that a noncommercial, transformative fanwork infringed copyright."

The US Federal courts (copyright is always a federal court matter is the US) are barred from issuing advisory opinions, they are only allowed to consider actual cases and controversies.

Assuming for the sake of argument that the quote is accurate that could mean one of two things that have very different consequences for the legality of fan fiction.

1. The US courts have considered the matter and have explicitly ruled that non-commercial transformative works do not infringe copyright.

2. To date no publisher has considered it worth while to pursue a non-commercial transformative work that far so that the US courts have never had occasion to consider and decide the matter.

Given that the article you cite, cites no court cases that would support option 1, I think option 2 is much more likely.

Also given that the right to produce derivative(what the article calls transformative) works is one of the exclusive rights that the US copyright act explicitly reserves to the author, I would put very little stock in the OTWs opinion on the matter.

One other factor you need to consider. the boundary between commercial and non-commercial doesn't necessarily sit where you think it does.

I've heard of cases (fair use quotation cases not transformative work cases) where the argument was made that a site having ad revenue made everything on the site a commercial use.

Anything on SOL could be deemed commercial because SOL has paid memberships.

Another caution The US Federal courts have three layers. The district courts where trials (both civil and criminal) are conducted, the Circuit courts (which are intermediate appellate courts), and the US Supreme Court (the court of final appeals).

The US Circuit courts are divided into 13 different circuits and decisions by one circuit are not binding on the other circuits.

12 of the circuits serve specific geographic territories. The 1st through the 11th circuits all cover different groups of states and territories. The twelfth geographically defined circuit is the DC circuit which hears appeals arising out of Washington DC.

The final circuit court is the Federal Circuit which has exclusive appellate jurisdiction over specific topics/areas of law.

One of the criteria the US Supreme court uses to decide which appeals to hear is the existence of a circuit split, that is at least two circuits have considered the same matter and came to opposite decisions.

So even if you could find a circuit court decision that supports option 1 above, it doesn't mean as much as you think it does.

Some of the hesitance to sue, of course, is that publishers benefit from there being no clear ruling.

More recently in the US, section 230 would shield the web site from liability for stories posted by users and the users are judgement proof by dint of having no money.

You might find an individual author with money who gets into a snit and prosecutes a case to the bitter end out of pure spite, but a commercial publisher is not likely to pursue a case that is guaranteed to cost them more than they will recover.

Some of the hesitance to sue, of course, is that publishers benefit from there being no clear ruling. It's much better for them to let this stay undecided than to risk a ruling that makes fanfiction definitively legal.

Given the black letter of the US copyright act, I rather doubt the risk of an adverse (for the publisher) ruling on that issue is even half what you think it is.

Another factor why publishers don't bring cases against "pure" fan fiction is that it is called "fan fiction" for a reason. You don't maximize profits by suing your most loyal customers into bankruptcy.

However, if the website involved is not in the USA or the author who owns the original copyright is not in the USA, then the USA laws would not be involved at all.

If just one of the two is in the US, then US law will likely matter to some extent even if it doesn't control the whole case.

For example, If a UK based author, such as JKR, wanted to go after a fan fiction author in the US, they would likely have to due so in the US courts. And while the US courts might look to UK copyright law as to whether or not a valid copyright exists, US legal principles particularly around the interaction of the first amendment and copyright law would still apply and govern the issue of whether or not a copyright violation has occurred.

Someone breeches my copyright and I choose to take it to court it will come under the Australian laws, even if the other party is in the USA.

In such a case if you want an enforceable judgment you have to sue in the US, because as a legal matter the defendant has to be given a reasonable opportunity to respond and mount a defense.

Trying to bring a foreign default judgement into the US to have it enforced by local courts will not go over as well as you think.

The US courts will in certain circumstances apply foreign law, but not to the extent of ignoring US Constitutional law issues.

In such a case if you want an enforceable judgment you have to sue in the US, because as a legal matter the defendant has to be given a reasonable opportunity to respond and mount a defense.

No, obviously you don't.
Your legal position didn't hold in case of some copyright lawsuits against Project Gutenberg.
German publishers sued Gutenberg for copyright infringements in a German court. This court ruled Gutenberg has to abide to German (EU) law.
So Gutenberg blocks access to its web site from Germany (based on the internet address of the user). Since some years now I can't access Gutenberg, I get redirected to this.

HM.

Since some years now I can't access Gutenberg, I get redirected to this.

A VPN connection can fix that for you.

That's injunctive relief against a website, not monetary damages against an individual infringer with no assets outside the US.

with no assets outside the US

AFAIK 'Project Gutenberg' has no assets outside of the US. So how is this different from individual infringers?

Did you look-up the linked information about the lawsuit?
The German court ruled PG should take-down the books in question or otherwise ensure they can't be downloaded from
Germany. To avoid further lawsuits concerning other books, PG decided to block access to all its books from Germany.

HM.

AFAIK 'Project Gutenberg' has no assets outside of the US. So how is this different from individual infringers?

Injunctive relief vs monetary damages. Actually collecting on monetary damages against Project Gutenberg would require coming into a US court.

Injunctive relief

If PG would ignore the German court's injunctive relief, how could the German court enforce it's decision against an exclusively US-based non-profit organisation?

BTW, I doubt this falls into the jurisdiction of a German court. PG resides in the US, it's servers are in the US, and the servers have to actually transfer the data to the user after receiving the download request, so the claimed infringement is done in the US.

HM.

If PG would ignore the German court's injunctive relief, how could the German court enforce it's decision against an exclusively US-based non-profit organisation?

You are correct. If PG chose to ignore the German Court the plaintiffs would have to seek enforcement of the foreign judgement in a US court.

There are several issues that impact the issue vs an individual.

1. It's easier to server process (notification that you are being sued in some specified court) on a large organization with a public presence on the internet than it is to serve process on a pseudonymous author posting fan fiction stories on sites run by other people.

2. Even if you do manage to serve process on an individual fan fiction (or other producer of derivative works) it is generally easier for an individual to ignore foreign process service than it is for a generally conscientious organization.

The intent of Project Gutenberg was to publish only things on which copyright had expired.

3. US courts will generally enforce foreign judgements when asked to, but there are exceptions. So it's not as simple as here's my foreign judgment-DING-here's your relief.

If a US defendant actually shows up in the foreign court either directly or as represented by a lawyer in the relevant jurisdiction. The US courts generally frown on that defendant contesting enforcement.

However, a foreign default judgement is a different matter and from what I've read, foreign plaintiffs bringing foreign default judgements to the US courts for enforcement frequently end up having to re-litigate the issue under US law.

And good luck getting a foreign(not necessarily just US) defendant who didn't show in you country's courts to voluntarily comply with a default judgment

BTW: If a US company or citizen refused to abide by a court ruling on copyright violation and the US government failed to assist in helping to enforce the judgement, then the US would be in breaking the treaties and agreements they have with those countries

The US didn't become a signatory to the Bern Convention until 1980 and even treaties can't override basic constitutional rights.

The US courts will generally enforce foreign court judgments, but this is not 100% automatic and there are exceptions.

Foreign default judgements generally carry less weight. And again, from what I've read, foreign plaintiffs with foreign default judgments can end up having to re-litigate in the US courts.

The US federal courts do not look kindly on US defendants who actually litigate a case in a foreign court and then try to bock enforcement in the US courts.

ETA: The issue with default judgments isn't bias against the foreign courts.

Even with default judgments issued by a US court, you will sometimes have a defendant popup with claims along the lines that they weren't properly served and had no notice of the case against them and that the default judgement is thus improper.

And yes, the courts frequently set aside default judgments in such cases.

That may be true, but then they have to consider how the reverse would be true.

This has nothing to do with the bit of my comment you actually quoted.

A US defendant that litigated the case in the foreign court will not be allowed to re-litigate the matter in the US courts absent very extraordinary conditions and that happens very rarely.

Default judgements are a different matter. You are going to have to prove effective service of process to the US courts to get the judgement enforced.

And they will set US based default judgments aside over inadequate service of process.

The issue seems to stem around what you mean by the word 'bock.'

The way the section I quoted reads, to me, as if the US court don't like foreign courts trying to enforce judgements in the US.

Well first, foreign courts can't enforce their judgements in the US. If the defendant does not voluntarily comply, the foreign plaintiff has to ask the US courts to enforce the judgment.

The issue seems to stem around what you mean by the word 'bock.'

Typographic error. Was supposed to be block.

The US federal courts do not like it when a US defendant litigates a case in a foreign courts and then tries to block enforcement of the foreign judgement in the US courts in an effort to re-litigate a case they lost in the foreign court.

As I understand it, it is extremently rare for the US courts to allow a US defendant to re-litigate a foreign case they lost in court.

The very few cases I am aware of where that happened involved cases where the foreign court system did not meet certain basic standards (usually third world countries) or a case where the defendant could prove corruption by the foreign judge*.

*The standard of proof on that is quite high.

them typos can really mess up what you're saying, can't they!

Yep.

typos can really mess up what you're saying

Blood type A, B or AB are ok, whether the Rh is positive or negative. Its the Type O's that make getting transfusions a problem. About 43% of Americans are type O.

Most constitutional rights relate to interactions with the government and criminal laws, not civil laws. A

Not true. Any civil cause of action created by statute, not common law mush abide by the constitution. This has hit civil cases based on anti-discrimination laws.

Copyright is a statutory cause of action.

Copy Wong is a guy in Hong Kong who sells cloned computer software ;-)

Except that he would actually be called Wong Copy.

:)

(Different naming convention)