Episode 121: The Money Question 2: The Appening
In Episode 121, Flourish and Elizabeth revisit the themes of an earlier episode about fanfiction and money in the wake of the recent brouhaha about apps like Fanfic Pocket Archive Library. They talk to fanfic author and copyright law professor Earlgreytea68 about “the AO3 App Wars,” digging into topics like the basics of U.S. copyright law, the AO3’s non-monetization policies, and the legal, moral, and ethical dimensions of who is (and who should be) permitted to make money from fanfic.
Show Notes
[00:00:00] As always, our intro music is “Awel” by stefsax, used under a CC BY 3.0 license.
[00:01:55] This episode is a sequel to #86, “The Money Question.”
[00:03:14] We’re talking about our last episode, #120, “Ebony Elizabeth Thomas.”
[00:05:34] Our interstitial music here and throughout the episode is “The Past” by Lee Rosevere, used under a CC BY 3.0 license.
[00:12:05]
[00:13:10] Fanlore’s coverage of the AO3 App Wars is definitely worth reading as a primer.
[00:17:32] Fanlore also has good coverage of the Ebooks Tree incident, for an example of a related earlier kerfuffle.
[00:21:21] If you don’t already subscribe to “The Rec Center,” you probably should start now 😊
[00:23:49] Elizabeth covered TheoryOfFicGate for The Millions!
[00:27:40] Toast’s stats on how frequently RPF is archive-locked, compared to other fic!
[00:39:00] Here’s what the law actually says about fair use (17 U.S. Code § 107):
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
[00:44:53] For a primer on Kindle Worlds, again, Fanlore!
[00:51:28] Tumblr swiftly explained why “if you aren’t paying for the product, you are the product” does not apply to the AO3.
[00:54:34] Anne Helen Petersen’s newsletter piece was “what a hobby feels like.” The New York magazine article is “Why Can’t I Commit to a Hobby?” by Katie Heaney.
[01:01:00] Read the full text of the OTW’s response to the unofficial reader app situation.
[01:03:51] Here are some more reasons that games have been rejected from the Apple app store. It ain’t great.
[01:08:21] Find out more about Creative Commons licenses!
[01:20:17] We discussed the “schmoop plateau” in our $1-a-month special episode with Javier Grillo-Marxuach. To hear all about it, pledge to our Patreon!
Testing the bounds of fair use...
...bonus: a fanwork from that clip!
Transcript
[Intro music]
Flourish Klink: Hi, Elizabeth!
Elizabeth Minkel: Hi, Flourish!
FK: And welcome to Fansplaining, the podcast by, for, and about fandom!
ELM: This is Episode #121, “The Money Question 2: The Appening.”
FK: [laughs] The appening.
ELM: Yeah. Hollywood, do you hear that? We got really good titles for sequels, which is all you make, so we’ll do that for you.
FK: The appening!
ELM: Yep.
FK: OK. So, if you have not been around lately, there has been a recent drama about a variety of apps.
ELM: If you haven’t been around. Just around.
FK: Around, around fandom, fanfiction spaces, there’s a variety of apps that allow people to access Archive Of Our Own content through a different interface on their phone. And we’re going to be talking with extremely prolific fanfic author and also lawyer—actually law professor, right?
ELM: Copyright lawyer in particular, copyright and trademark.
FK: Earlgreytea68.
ELM: That’s right. Very excited to have EGT on, because she is an expert in the law, and when these apps kind of somehow came to a head, a few weeks—it’ll be a few weeks by the time this comes out…there was some really really muddled commentary from panicking fans about what fair use and copyright law actually entails. And so I thought this would probably be the right time to call on Earlgreytea.
But it’s called “The Money Question 2” because it also connects to our episode “The Money Question,” which was part of our Discourse Trilogy, which is now 2018, I think that was, so it’s now two years ago.
FK: Whoo!
ELM: Time is passing! Where we talked about monetizing fanfiction, and so I’m especially glad that Earlgreytea is dually important here, because she is a very popular, like very very popular fanfiction writer. So she has a particular perspective on, she has stakes, basically, in this conversation about who gets to make money off fanfiction, if you should make money off fanfiction, in addition to being really good on the law.
FK: I am very excited about that and I’m sure that what we talk about, people are gonna have questions, comments, thoughts. So if you do when we get to the end of this, please shoot us an email, fansplaining at gmail.com, or give us a phone call at 1-401-526-FANS, or leave us a Tumblr message in our askbox, or a message on our website through the form there, send us your thoughts, comments, questions, we always love having those and we try to answer them! So looking forward to hearing people’s thoughts on whatever we talk about with Earlgreytea.
ELM: OK, so other business before we call her: our giveaway.
FK: Right. So last episode, we initiated a giveaway of Ebony Elizabeth Thomas’s book The Dark Fantastic. Thank you everybody who put in their names! If you haven’t heard from us by now, then you did not win the book. If you have heard from us by now, then the book will be on its way to you soon!
ELM: I mean, you’re already gonna know that, cause we woulda told you that.
FK: Right. But. Anyway, thank you to everybody who signed up for that. We’re really happy that we were able to give those away.
ELM: Yeah, it’s exciting. We’ve never done this before. We’re excited so many people tossed their name in for consideration. “Consideration,” it wasn’t like a grant proposal or something.
FK: [laughing] No, it was like a hat. It was more like a hat.
ELM: It was a literal draw. [laughing] OK, and the final final piece of business, most important piece of business, is Patreon!
FK: Yes. As you know, we are funded by listeners and readers like you, so if you would like to keep us recording…
ELM: Speaking of monetizing, uh…
FK: Yeah, speaking of monetizing fanworks! Yeah, donate to our Patreon. We’ve got a lot of really awesome stuff for Patrons including things like an enamel pin, sometimes we do little tiny zines, we’ve got a bunch of episodes, special episodes that only Patrons can listen to, so…
ELM: Oh, oh, oh, OK: because we’ve gotten many messages on this, if you are a Patron or you become a Patron and you listen to our most recent special episode, on Birds of Prey, in which we say that we had heard that there was canonical…
FK: Oh my God.
ELM: …queer representation and we were confused cause we didn’t know, we missed it, but everyone seemed kinda gay to us, uh…
FK: We have now been informed what the canonical queer representation is by everybody.
ELM: Apparently there was a line that we both missed, probably because we saw it in 4DX so we were busy being pummelled by our own chairs.
FK: Yeah. But we stand by our statement that everybody seemed kinda gay.
ELM: Yeah, it’s actually interesting cause it’s like, well, is this the most important? Like, one line, the fact that we missed one line and we didn’t know? But like, everything had like queer overtones or undertones or…tones?
FK: Tones.
ELM: You know? Like, I don’t know. It’s interesting the way these conversations get framed, basically. But we do appreciate everyone clarifying, no need to clarify further, we got it.
FK: [laughs] OK, all right. OK. On that note, do you think we should call Earlgreytea?
ELM: Yeah, I think we should!
FK: Let’s do it.
[Interstitial music]
FK: OK, I think it’s time to welcome Earlgreytea to the podcast! Hey, EGT!
Earlgreytea68: Hi, thank you so much for having me! This is a life-long dream.
FK: Oh! Life-long!
ELM: Did you think that it was, like, when you say you’ve been waiting for us, I mean, obviously it was only a matter of time, but was it, did you think it was going to be this topic or did you think we were going to have you on to like, argue about, like, the structure of fic plots?
EGT: I thought we were going to argue about the structure of fic plots.
FK: We probably will argue about that also.
EGT: I did indeed think. [ELM laughs] Elizabeth’s gonna have me on so she can yell at me about happy fic.
FK: About the schmoop plateau.
ELM: [laughing] So truly at one point, I think I may have told you this because you collaborate with Aja Romano.
EGT: Yes.
ELM: Who we are friends with also. And I thought it would be interesting to have you both on [EGT laughs] to talk about some of your collaborative projects, because I truly find them interesting, but because Aja and I actually agree on a lot of fic stuff, like, any—you are the odd one out in these conversations.
EGT: I am.
ELM: I thought that it could turn into a bad scene, because then it’d be potentially three against one. Even though everyone loves your work and it’s very popular! I don’t need to tell you that!
EGT: I’m a lawyer [FK laughs] so I’m really used to being outnumbered in conversation, really doesn’t bother me.
FK: Out of all the people we could invite on, this is the perfect person to be like “YEAH, fight me!”
ELM: Yeah, OK, we’re not gonna talk about fic structures yet. Maybe we’ll get to it. All fic structures are valid.
FK: Are they though?
ELM: But. [FK laughs] OK. We—we brought you here to talk about the law.
EGT: Yes.
ELM: So I think it would be really helpful first if you, do you wanna give like a little bio I guess?
EGT: A little bio…
ELM: Yes. People who don’t know who you are, basically.
EGT: OK I am…Earlgreytea68 is my full fanfic writer name, fandom name, and I’ve been writing under that name for awhile, like, 12 years now at this point? 13 years? But I’m also a copyright and trademark lawyer and that is what I practiced in law firms for many years and now I am a professor who writes on copyright and trademark stuff, and I’ve been involved with the OTW for a few years now as well. Not at the beginning, later.
ELM: OK so we should clarify: you’re not speaking on behalf of the OTW.
EGT: I am not speaking on behalf of the OTW. Not at all in any way.
ELM: Double check that.
FK: I am really excited to have you on because every time, often on this podcast I end up saying things about fair use and at the end of it I’m like “But I’m not a lawyer so please talk to an actual lawyer!!” And every time we have an actual lawyer on I’m like “YES! Authority!” Really exciting to have some of your authority here.
EGT: It’s really upsetting, nobody ever wants to talk to an actual lawyer. This is going to be very disappointing for everybody. Because when you talk to an actual lawyer, our answer is always like, “Eh…I don’t know…it depends!” And then everyone gets frustrated and they’re like “Forget it! I don’t want to talk to lawyers any more.”
FK: That’s what fair use law is like!
ELM: I mean, that’s what makes it so interesting though!
EGT: I mean I agree, I agree with you! But I think that people, people want, when you say “go talk to a lawyer” I think they want to get like an answer, and instead we’re always just like “Could be many things!” You know? “A spectrum!”
FK: “We’ll have argue about it and find out!”
EGT: Right, yeah, yeah!
ELM: So just before we get into it, I am curious, did you—what came first, being a fanfiction person or focusing on copyright and trademark? Because those are not disconnected.
EGT: They’re not disconnected, but, so, I was a writer always, like, my whole life. I did not discover fanfiction until I was in law school though. Which has been a big regret of mine, because I bet fanfiction is really fun when you’re in college, and I’m really sad that I didn’t discover it until law school. But I didn’t start writing fanfiction until I was already a lawyer. So I would say that I, I went into copyright and trademark before I did anything with fandom. But I did choose my field because I was a writer and liked books and so that is why I chose copyright stuff. It’s just that I wasn’t thinking of it in terms of fan stuff at the time.
ELM: You, you also, you also have another persona as a professional writer.
EGT: I do. I have a lot of personas.
ELM: [laughs] Well, so, I think that makes you—you kind of are the perfect guest for this topic because it’s following on from the monetizing fic episode, right? Because you, I mean, and some of the, as far as I understand it—and you talk about this with your fannish persona, right?—some of the stuff that you write is, is very much for hire.
EGT: Yes.
ELM: In the sense of, right, like, they will—it’s not toiling away with a special manuscript that’s all yours. You are, you are writing to beats that have been structured in some of the work that you do.
EGT: Yeah.
ELM: Can you talk about that for like two seconds? I think that might be interesting to fic writers.
EGT: Right. So I’m also a published novelist. And I have published novels that, I never have toiled away. I’m not that kind of writer.
ELM: Sure, yeah.
EGT: But I have published novels that I just came up with myself, but yeah, I also publish novels now that are kind of like fic prompts almost, right? It’s like, “Hey, we want there to be a love story and it takes place in the south of France and there’s a cute dog and there should be a lot of croissants.” [FK laughs] And it’s like, “OK!” And then I like, structure…it really is like writing to a fic prompt that I’m able to sit and just structure around the beats that they want me to do. And sometimes what I come up with, I think, is very different than what they imagined? Which is how fic prompts go, and then sometimes they make comments that are like completely the opposite of what I thought we were talking about, and it’s like a really collaborative process in that way and I think that’s different than a lot of other published writing.
ELM: That’s really interesting, and it’s interesting too, I mean, Flourish always talks about how it’s interesting that, that fic folks focus so much on this idea of becoming a capital-N Novelist, when like television writing actually has a lot more in common with a lot of what people in fandom do.
EGT: I can see that.
ELM: And this is, this is similar.
FK: Yeah.
ELM: What you’re talking about is also another way, and I think when people talk about becoming professional novelists out of fandom, they rarely talk about the huge swaths of fiction writing that actually is a bit more structured and to these things that are essentially like prompts and formalized structures, you know?
EGT: Yeah, yeah. I mean I think there’s like this one way that people think that professional writing happens, and it’s kind of like, in my head I think we all get it from like, reading Little Women where Jo March would like, sit there [FK laughs] and like, scribble out her manuscript and like, she’d go and convince some evil guy in New York that like, women’s writing was worth it. And I feel like that’s what we think. We just all got that, like, image in our brains.
I didn’t know until—I actually got contacted by someone who was a fan of my fic with the first, like, work-for-hire novel that she’d read my stuff. And she was like, “Look, we want something really happy and fluffy, you seem like the person to write that!” [FK laughs] And I was like “Yes! On brand!” And I was delighted to, to do that. But I had no idea that that was an option really, because I don’t know, we only hear about—you do NaNoWriMo and then you like…
FK: Yes, sell your Great American Novel.
EGT: Torture yourself. Yeah, yeah.
ELM: Totally. All right, that’s really interesting. I think that’s enough background information.
EGT: OK!
FK: OK, so let’s, let’s get on to the topic of the podcast, which is—I was trying to figure out the shortest way to talk about this and I think that “the fic app ads debacle”?
ELM: Yes.
FK: Is, is maybe my best shorthand for what’s going on here?
ELM: Well, fan—Fanlore is calling it “AO3 App Wars.”
EGT: Ooh.
FK: AO3 App Wars! That’s catchy!
ELM: Yeah, and shout-out to Morgan Dawn, I believe, is their Twitter name, and meeedeee on Tumblr, because they have been doing most of the cataloging of that as far as I can tell in real time, and it just seems like a—a thankless task. So we should put that link in the show notes, but it’s really helpful. I was sharing this with people who were lucky enough to have not been on Twitter or Tumblr in the last week.
FK: Ooh.
ELM: So, someone said that it made them feel very nostalgic for, that fandom never truly changes. And I was like, “That’s fair.”
FK: Yeah, yeah.
EGT: I can see that. Yeah. What a silver-lining way to look at all of this.
FK: All right, so, so for those people who haven’t been on Twitter for awhile, let’s talk about…
ELM: Or Tumblr.
FK: Or Tumblr. Or…yeah, just Twitter and Tumblr.
ELM: Nope. Those two. Those two.
FK: Let’s talk about what actually happened. Is, is still happening with this.
EGT: So, Elizabeth, I think an interesting thing that I’m gonna ask you—sorry Flourish, I didn’t mean to like cut you out, but I feel like Elizabeth maybe has looked into this and so that’s why I wanted to ask her. I’m not entirely sure why it happened now. Because this app has been around for a while, at this point.
FK: What is the “it” though? Let’s talk about what the “it” is.
EGT: OK, OK.
ELM: Yeah, talk about what the “it” is, but I will say off the bat that I do believe the reason it happened now is because a few posts were written over the weekend—it was President’s Day weekend, and a few posts just kind of took off like wildfire on Tumblr and were being presented as relatively new information.
EGT: OK.
FK: OK, but what’s the it.
ELM: And I, I think that’s it.
FK: But what’s the it.
ELM: So the it. The it.
EGT: So there’s, there was an app—there were a few apps that were involved, that was contributing to the confusion, but the main app that people seemed to be complaining about was an app that someone had developed so that you could read AO3 on your phone, was theoretically what the marketing was behind this app. And it had some ads, and it had a pay level and it had like a little button for tips, but all that it was doing was really just, I don’t know the technical term for this. But it wasn’t hosting any of the fics. It was just like, a screen reader that was directing you back to AO3 with a particualr way of being able to read more cleanly on mobile, is my understanding.
FK: So it was like a skin, almost.
EGT: Yes.
FK: It was like, it was accessing the AO3 stuff on the AO3 servers.
EGT: Exactly.
ELM: Or if people use Chrome extensions, is a good analogy as well. So yeah, there was a real misunderstanding about the idea of, that content is hosted and you need a browser or an app to view that content. But content is hosted on the AO3.
EGT: Apparently the misunderstanding was because there was more than one app that people were talking about, and they were talking past each other, so there was one app, I think it was the Fanfiction Pocket? I don’t know. There was one app that was not hosting anything. There was another app that had—it seemed like they had copied the fics and they had put them into buckets, but it was harder to figure that out because you had to pay to see like, almost anything on that particular app. And that one’s, that one was gone fairly quickly, but there was a lot of misinformation about this Fanfiction Pocket app, Archive Reader, whatever it was called, that had a really long name, and the fact that it had the ads and it had the pay level and people really got upset about the fact that this app developer in their view was profiting off of their fics and had post—there was a lot of talk about how they had reposted them to this app without their consent.
ELM: “Consent” was a very popular word.
EGT: “Consent” was a popular word. Right. And I—
FK: OK, so…so just to, just so that I’m clear, there were multiple apps that got talked about and some of these are now not on the app store, so we’ll never know what was really going on with them unless somebody has really effectively responded about it. There was one major one and there was these others, and they might have had different ways of dealing with this stuff.
ELM: Well, so the, the Woodsign app, which was the one where they broke it down into “MCU fic” and “Harry Potter fic”—
EGT: Yes, exactly.
ELM: —as far as I understand, that was, I saw the word “scummy” and I think that was the right word for it. That was like a wholesale ripping-off.
EGT: It was.
ELM: You know. And that’s not, I mean, that is something that I think, I mean, you probably are more attuned to this as someone who works with the OTW legal committee than me, but that’s something that I feel like crops up pretty regularly and you see these wholesale kind of, just these, these kind of plagiarism…
EGT: Right.
FK: I definitely remember the, that happening before.
EGT: I don’t know how common I would say any of this is, to be totally frank, I don’t think it’s—you know, it’s not like an epidemic, I don’t think. But I think that when we think about it we think about it in that guise, right? Like, when we think about it happening, it’s like, “Yeah, people stole fic wholesale and put it somewhere else.”
ELM: Straight-up reposting.
EGT: That’s always what it looks like. And I think that’s what threw everybody off about this other fic, was they were like “Oh, surely it falls into the same, you know, well-known familiar ruts of the other times we’ve had to deal with this.”
FK: Yeah, like EBooksTree or whatever—
EGT: Exactly.
FK: —where people were literally stealing stuff from the archive—
ELM: Yes.
FK: —they were literally stealing it, downloading it, hosting it somewhere else—
EGT: Yes.
FK: —and putting it up under different guises or with the names taken off or whatever, and then charging money for it.
EGT: And that’s usually how you see it, right.
FK: But then the main app that people were talking about was not like this.
EGT: Right.
ELM: Right, and I’ve seen blow-ups around that too where it’s people who truly don’t understand plagiarism and they don’t under—you know, so they’ll, there was one years ago when Wattpad was just hitting the zeitgeist, I remember, where people were like posting, they were just posting fics on their Wattpad accounts and they were like “What? I—I wanted to read it on my Wattpad account!”
EGT: Yeah.
ELM: It’s like, no, you know? And actually in essence, even though it has a different set of understandings about how things work, it was sort of the same thing, saying “I wanna read this in a way that’s more comfortable to me.” Right? But that was wholesale just copy-pasting and…
EGT: Although I think on Wattpad…
ELM: I think there was an issue with this on Goodreads as well.
EGT: I don’t know anything about the developer of this particular app or what their motivations were, but I don’t think they were trying to pretend that they had written all of these fics or anything like that, whereas I think on Wattpad even though they might not have been intending to pretend it, the way that it looked was like they had written—like they were taking credit for the fic, because it was like, under their account name on Wattpad, you know.
ELM: Right, right, but when confronted I remember there were at least a few people who said “Oh, I didn’t understand! I just,” and it’s obviously it’s probably very young people.
EGT: Yeah, no.
FK: I see, so…
ELM: “I just put it on my account!”
FK: So we’re talking about multiple things, we’re talking about like the interface that people want to use to read their fic, so if I understand correctly the app that most people have been talking about is literally just interface changes.
EGT: Exactly.
FK: What’s the consent thing that people are talking about here? Because I’m confused. [laughs] I mean, I read a lot, but I’m still confused about what, what the heck they mean.
EGT: I think that what they mean is that when you find out that there is something going on with your work that you had no idea was happening, and immediately they’re like “You didn’t have to ask me about that?” Right? It’s like, you figure out that there is a place on the internet where people are consuming your creative work and you had no idea, and I think they like, jump to “consent.” You must need consent to do that! Which isn’t necessarily true, right?
Like, Google is constantly linking to fics all over the place and that’s, you know, when you run a Google search Google does not ask all of those websites it links to when you get the results like “Is it OK, is it OK if I put the search there?” Because that’s not how that kind of thing works, right? So you don’t actually need consent for everything that’s happening, and I’m not sure—because they weren’t copying or wholesale pasting, they were just linking back to AO3 with a different skin, I don’t know that it really was about consent in that respect.
The ads are a different question, right? Like, there’s two things going on here and I think just the linking—like, it’s like rec lists, right? Like, people rec my fic…I just got a comment on a fic and the person was like, “This came up in a Twitter thread about things that make you cry!” And I was like “Oh! I would have liked to see that Twitter thread,” but that stuff happens all the time when you have no idea, right?
FK: Right.
ELM: Yeah.
EGT: And you wouldn’t be like “Oh no! Don’t rec my fics without my consent.” I think most people wouldn’t, wouldn’t—
FK: Right.
EGT: —be that way, so…
FK: But it also feels a little different when it moves into an app, right, as opposed to—
EGT: Right, it does.
FK: —when it’s just a rec list.
ELM: Right, right.
EGT: Yeah.
ELM: I will say, having run a newsletter with rec lists every week for the last whatever, 216 weeks, I have had one instance. Cause we always ask permission for fanart, because we are reposting it.
EGT: Yes.
ELM: You know, we’re not just linking to it. And we don’t ask for permission when we link to fanart, which we do constantly. Or to people’s Tumblr posts. But we don’t ask for permission to rec fic! And I had one person come in my mentions a few years ago who didn’t follow me and started yelling at me and I was like, “I don’t think that that’s realistic, that’s not what reccing is,” you know? Like, you don’t ask for permission to put something on a rec list.
And then they tried to make it into a “Well, I don’t think anyone should profit off of fandom” argument, and we’re not making any profit off of—this is completely non-monetized. And then I was also like “Well, I am a journalist and I write about fandom,” and they were like “I don’t know who you are” and then they left the conversation. [all laughing] It was like, OK! Bye!
FK: I remember this conversation, it was very obvious they had no context for any of this and they were just like, “I’m confused and angry!”
ELM: Yeah, I was like, “OK goodbye!” [laughs]
EGT: I think there’s always going to be—I mean I think, I think writing and drawing and creating is a weird thing, right, where you’re putting a piece of yourself out there in the world. And I think you tell yourself, like, “I do it because I understand the parameters.” Like, “I put it on AO3 and I understand the parameters of engagement and I understand it’s gonna get shown up on rec lists,” and then it gets sent in an email to—I don’t know how many people are in your “Rec Center” mailing list but it’s a lot, maybe more than would see your typical, like, you know, Tumblr rec list that I throw upon Tumblr. And then they’re like “Oh no, I didn’t think about that scale!” Right?
Like…I had that moment myself. I found out, I didn’t know that this was a thing, that people will like stick fics on Goodreads? Not the text of fics, but fics on Goodreads with like, reviews. I didn’t know that this was a thing that people did, and so I, like, “EGT” has a profile on Goodreads that someone who’s not me has like, put up there, and like, all the fics are like up there with like ratings and stuff. And I was like—for a second when I found it I was super taken aback! I was like “What is this?! I don’t have, why is my work on Goodreads now!?” I wasn’t thinking, and then, like, I—you know, I’m a lawyer so I like took a deep breath and was like “Well, this is like, completely within their rights and I’m OK with this,” right? But like…you know.
FK: Yeah.
EGT: I think the, because it’s like a personal piece of yourself, you react like—like it’s a personal piece of yourself when something happens like that!
ELM: It’s the decontextualization. I think the Goodreads, I was thinking about that, when people started noticing the big fic writers showing up on Goodreads. And also I was thinking of the TheoryOfFicGate this past week?
FK: Oh, yeah.
ELM: That Berkeley class, do you remember this?
EGT: I do remember this!
FK: So for anyone who doesn’t remember it, it was a class at Berkeley run by students and they had fanfic, they had people, it was like a…
ELM: A short, like, a January term like a…
FK: Like a January term. Not an official, a semi-official kind of a thing. And they had students read fic and then they had students review, which really got people upset.
ELM: They were writing constructive criticism, and there was a lot of suggestion that these people were not in fandom because they were leaving these, you know, not totally fluffy I-love-this comments. Like, they were leaving, they were being asked to leave substantive comments, people were saying “there’s no way they’re in fandom.” But it seemed pretty clear—
FK: They were in fandom!
ELM: —they were in fandom, there are many different norms, and they were doxxed.
EGT: Oh wow. I have a question about that whole situation. How do you think fandom feels about that situation? Because I was really kind of shocked, I have to be honest, as a person who is also an educator, that you would ask for permission before teaching something in class. Like, that is not a thing that has ever occurred to me, right? I don’t ask for permission—
ELM: Right.
EGT: —from any of the authors that I teach that are published authors, I don’t ask permission from any of the people, all of the cases that I teach, the articles that I teach, right? I have them read your article, Elizabeth, I don’t call up and tell you it’s on the syllabus, right? So I guess I…
ELM: How could you?! Why won’t you tell me?!
EGT: I should tell you because it’s exciting! I would think I would want to know because that—
ELM: It is exciting, actually, I would, yeah.
EGT: But I just, I was really taken aback by the reaction to that. I thought maybe the making them leave comments was stepping over the line, but the idea that you, your fic couldn’t be put on a syllabus really kind of surprised me, because—maybe because I do this kind of thing academically, but I was like, “Gee. Fic is a really important and valuable genre of creativity, and I don’t want it to be a thing that we don’t get to talk about.”
ELM: Yeah, I, it’s interesting. I’ve talked a lot about this with Anne Jamison, who I think everyone here is friends with in some capacity. She has a pretty strong stance on the fact that she used to somewhat ask for permission, and then she just kind of set down her, like, put her foot down and was like “I’m not asking for permission anymore,” which I—I mean obviously not for the stuff that she engaged with in the book Fic.
EGT: Right, right, yeah, that’s different.
ELM: But in class and—I don’t know, I, this whole topic, I don’t wanna be too dismissive of fans’ concerns, but I do find that the kind of idea of…I understand why people are upset about it being decontextualized, but I, it’s not like people are putting your fics on syllabi because they wanna make fun of them. It’s actually because they’re treating them like serious literature, and I understand the tension there.
EGT: Yeah.
ELM: You know?
FK: There’s also the reality that people need to accept which is that if you have something that’s like, archive-locked, then that’s one thing, but if you have it just on the archive, that’s on the public internet, and I keep saying this to people! You know? Like, I think that there is a line and I think that like, I would not share something that had been only shared on a private mailing list or archive-locked or, you know, like—there’s a lot of stuff that’s behind passwords in the Jane Austen fandom, and I wouldn’t share that stuff on a syllabus? Like, I’m not gonna like go out of my way to make it available to people? Right?
EGT: Right.
FK: But you published your fanfic on the internet. Security through obscurity is not totally a thing.
EGT & ELM: Yeah.
FK: That’s the answer!
ELM: Right.
EGT: I think it comes back to that whole thing about it being very personal, in that it’s just this like knee-jerk creation of “Oh! I didn’t know people were gonna be talking about it in college classes!” And if you’re uncomfortable with that, that’s OK! But I don’t think that that’s on them as much as it’s on you to not have the stuff out there in the public, because I do think that once it’s out in the public, that happens.
ELM: Right, right. It always struck me, it’s always stuck with me when we had Destination Toast on early, talking about some stats about how RPF is not massively more likely, but at the time anyway was at least a few percentage points more likely I guess to be archive-locked.
EGT: Yes.
ELM: And I thought that was interesting because it was just, it’s not like it’s password-protected or actually private, but it’s just that level of…
EGT: I actually used to archive-lock my RPF, and I don’t lock anything.
ELM: Yeah?
EGT: And I was like—
ELM: Did you do it for that reason? Did you just wanna create a little extra barrier?
EGT: No, it felt like it was a norm. It felt like it was an RPF norm that people were locking their fics.
ELM: Interesting.
EGT: And then I’m actually one of those people who I’m really like, this is like one of my weird principled stances where I’m like, “RPF is like such a common form of creativity! And it wins Oscars like every year! And we shouldn’t be like, so ashamed of what we’re doing!” And so I went through and took the, took the lock off of it after that, because I was kind of like, “I should really like, if I’m gonna say this then I should own it.” So that’s what I decided to do. But it did seem like a norm, that people would lock it.
But then I was kind of like, I feel like that was an old-fashioned LJ type of thing where you were like, “Don’t come over here and read my fic!” Whereas now, I’m like, “If you’re on Archive Of Our Own, searching for your name, I can’t help you.” Like… [laughs] That must be what you’re looking for! Like…
FK: All right, all right, all right.
EGT: So I’m not gonna worry about that.
FK: Oh man oh man. Yeah it’s true! You, you asked for it! You really did ask for it.
ELM: Yeah.
FK: You literally typed your name into the search bar, which is asking for it.
EGT: I can see you stumbling upon it on LJ, you just wanna like, I don’t know, read what people are saying about how hot you are or something, and then you get fic and you’re all upset. Like, that seemed more defensible that you would…
ELM: I don’t know. If you’re just scouring fan blogs to see people talking about how hot you are, I kinda think you deserve to see the, the—that in fictional form as well. You know? If that’s what you’re after! [all laughing]
EGT: Yeah.
FK: OK OK OK OK.
ELM: Like…
FK: We’ve gotten a little afield now.
ELM: This is all relevant Flourish!
FK: I wanna bring us back because I feel like we’ve been talking a lot about that first part of like, “I saw my work in a different context and that is upsetting.”
ELM: Decontextualized, yes.
FK: Whether or not that’s like, anything that can have legal action or whether or not you’re quote “in the right,” it is understandably upsetting. The other piece of this, which I’ve seen a lot about, is the issue of ads.
EGT: Yes.
FK: And the idea that these apps were serving ads on the fics that they were showing. And there’s a lot of anxiety in this around, like, what that means for fair use, what that means for individual people and their fic…
ELM: Can we lay out a few before we start, because I would like EGT to explain fair use in a straightforward way.
FK: OK.
ELM: But can I lay out a few of the pieces that I think we should touch—
EGT: Yes.
ELM: —in this topic? One is, there seemed to be an interest in framing the app developer, who was a random person, who I believe made negative—something like negative $2200 on this, because they paid about $3000 as far as I know to make the app, and in total I think they made $100 in ads over the course of many years. Because, FYI, that’s, that’s how much you make when you put banner ads on something.
EGT: And I think like, $10 in tips or something. Yeah.
ELM: Yeah. It was something like that, right. Or maybe it was the other way around, maybe they made $10 in ads and $50 in tips or something. It was like genuinely a small—they, they took a huge loss and the way they framed it was that they had just created this because they wanted a better, they wanted, you know, they wanted more functionality in the way you read it. But to be fair, they were charging for customized rec lists or whatever, and you know, like, as someone with a free rec list source, I don’t necessarily think we should be charging for rec lists! Whatever. OK. So there’s that element.
So there were a lot of people who were like, I saw a lot of commentary that was like “This is just The Man coming and trying to profit off fans!” And I was like, “Is this The Man, though?” Like, you’re actually generating more money for Jack Dorsey with your 50 angry tweets right here, of Twitter, or the people who on Tumblr—you’re not making any money for them actually. [all laugh]
FK: But that’s because they don’t know how to make money, not because you’re not trying.
ELM: Yeah, yeah.
EGT: A great fandom victory.
ELM: Yeah it’s really great, love you Tumblr! But you know it’s not, I doubt that an individual Twitter user is actually creating an extraordinary amount of monetary value with a handful of tweets, but like, yes, you’re actually posting these sentiments on something that is owned by The Man. Like, that’s The Man, you know?
Whereas this app developer, maybe not The Man? But you can’t actually yell at Jack Dorsey, as we know, you can’t—
EGT: Well, you can, but it doesn’t have any effect. But that’s a thing you can do.
ELM: “Jack get rid of the Nazis,” right. Whereas this was a more accessible place to put your frustrations about who makes money off this and who doesn’t. But the other piece of it I saw a big undercurrent of was this kind of idea of “Well, AO3 won’t even let me link to a Kofi.”
EGT: I know that’s how you say it.
FK: Coffee?
ELM: I’m calling it “koh-fye.” Or Patreon or Paypal or whatever. “And this motherfucker is making money off of my work and I’m not even allowed to make money off of my work.” But often framed in a way that was mostly being mad at, at the OTW and the AO3. And this is also a thread that I’ve seen a lot of whenever the donation drives come up, of saying “This monster place allows these pedophile fics and they won’t let me monetize my stories?!” [all laugh] And you’re like “All right, one or the other, one or the other.” Like…and so I just wanna keep this in mind…
FK: Amazing to hear that you wanna profit off of your stories in a place that has such morally repugnant content to you!
ELM: Yeah! They profit off—
FK: You’d think that you’d want to not be associated with the, but it turns out… [all laughing]
ELM: So there’s those things. And then the third piece, my final piece, is the thing that I saw a lot of, which is very—what I would describe as a little bit, not concern trolling necessarily, but a sort of—like, “PSA! For the good of the community, so you all know,” like, “when an ad, when there are ads next to fic, that invalidates fair use.” I saw that written many, many times. And every time I was like, “I can’t just jump into these random conversations, but that is not accurate.”
So these are the three pieces I would love to tackle, maybe the last one first.
EGT: I think the last one first—
ELM: Cause it’s maybe easiest.
EGT: —and the first one last, because the first one is a really, it’s gonna make your head hurt when you think about it too much. So we’ll do the last one first. So fair use is a defense to copyright infringement, so what that means is that we know that copyright infringement has happened, and the only way it’s OK is because we’ve decided that it’s a fair use. So this is a doctrine that gets used for a lot of stuff. It is not just a doctrine for fandom or internet. This is the doctrine that lets me use video clips and audio clips when I teach, because we have exceptions for educational purposes.
ELM: Can I, can I pause you for one second? Can you tell me what a “doctrine” is?
EGT: Uh…
ELM: Like, who decided this? Like, where—
EGT: Oh, I can say that! I thought you wanted me to define the word “doctrine” and I was like “I actually don’t know the definition of that word, Elizabeth…” [laughs] “It’s a thing?”
ELM: Is it a Latin root or like…
EGT: It’s a thing! A thing we have! I don’t know. [all laughing] So it was actually, so, copyright came about in the 18th century… [laughing] when the publishing press had gotten, the printing press had gotten invented.
ELM: 18th or 19th?
EGT: So the printing press gets invented in like the 17th, like, right? Isn’t it like, late 1600s? Yes.
FK: Or, it’s brought into common use at that point anyway in the Western world.
EGT: Yes. And so in the early 18th century, England passes the first copyright law. And it was meant to deal with the fact that for the first time ever in the history of human civilization, you could fairly quickly duplicate writing. Right? We could never do that before, we had to have monks who were writing about it in medieval times.
Soon after we started protecting copyright, judges deciding copyright cases decided that we needed to have a doctrine, a theory, that would protect certain uses that judges decided were important to society, that there were certain things that copyright holders had a monopoly over that would be dangerous to a free society. So, for instance, politicians hold the copyright in their speeches and their platforms and things of that nature. Right? But in order to be informed political beings, we need to be able to talk about their platforms and stuff. So we can’t let copyright stop us from having news reports about what it is that politicians stand fo. That kind of thing.
So that’s where the root of it came from, was judges sort of sitting around and they got copyright cases in front of them going like “Hey, you know what? This might be problematic technically, but we think this is an important thing and we should be protecting it.” And so fair use started like 300 years ago, at this point, and it developed through a bunch of cases over many centuries and then finally in 1976 the United States passed a major copyright statute, so Congress sat down and actually wrote down in words what we were doing with copyright currently, and at that point fair use became a part of the statutes.
So it’s literally written in, you go and you pull the United States code, which you can do, it’s a book, you can read all of the laws that govern you, and one of them will talk to you about fair use and what fair use is. And it’s very short. It’s a very short section of the statute. It literally says “Hey, we think some things are awesome, like news reporting, like criticism, like scholarship and teaching and education. And for those types of things, we’re gonna call those fair uses, and they will not be copyright infringement, they won’t be something that you get in trouble for.” And then the statute goes on to say, “How are we gonna figure out what this stuff is? Well, I don’t know, could be a lot of ways, here’s four things we might wanna look at.”
And so the first one of the things that it tells us to look at is what the purpose and character is of what you’re doing. Which you will often see called “transformativeness,” which is why the OTW is the Organization for Transformative Works. It comes from copyright law. That’s a term of art. And transformative works are more likely to be fair use than non-transformative works.
Another one of the things that the statute tells you to look at is the effect on the market. So, what is the effect that you are having on the market for the original work? And so that’s where the commercialism stuff comes in, and people fighting about ads: it’s in reaction to that part of the statute.
FK: So like, if I understand that correctly, then in that part of the statute it’s like, if I were to like duplicate a movie, like, and sell the DVD on the street, then that’s in direct competition with selling the, the DVD.
EGT: Exactly.
FK: But if I were to, like, I don’t know. Write a review of the movie, obviously no one is going to—which even included part of the dialogue or whatever—no one is going to like, read that review and then like not go see the movie. They’re not the same thing. So there’s not an effect on the market.
ELM: Well, they might if it was a bad review.
EGT: They might read the review and not go see the movie, but that’s not a copyright harm. We don’t care about that.
FK: Right. Yeah yeah yeah.
EGT: What we do care about is, you’re not going to use that as a substitute.
FK: Yeah yeah yeah right, right.
EGT: No one’s gonna say “I was gonna go see the movie, instead I’ll just watch this critic and that will be the same experience.” [laughter] Right? That’s not gonna happen.
ELM: Sometimes it is.
FK: Sometimes they will say “This critic said it sucked so I didn’t see it,” but I wouldn’t want to.
EGT: And that doesn’t matter. We don’t care about that. We’re not trying to protect copyright holders from that, right. We’re just trying to protect their markets that we want them to be able to exploit, and it really is—like, your example is the best example that we can think of. Like, music downloading? The music downloading cases were very much like, “Hey, you downloaded that song for free, so you will now never go buy my CD.” And that’s not always true, but that was sort of like the argument that people were making that it was a substitute in the marketplace for the official copyrighted thing.
So that’s mainly what people are thinking about. But we, like, so the thing about fair use is there are no bright-line rules. And when we say that in law, what we mean is, we cannot really ever say to you, “Every time you do X, Y will result.” We can’t do it in fair use. Like, that’s not how it works. The courts, the cases literally say “No such thing as a bright-line rule!” That means we have to look at every case individually. So the best that we can ever give you in fair use law is probabilities.
And so what I can tell you is, works that are not commercial are more likely to be found to be fair use than works that are commercialized. It is not, again, a bright-line rule. It is not that all non-commercial works are automatically fair use. It is not that all commercial works are automatically not fair use. It’s just that probability-wise, you are more likely to be OK if you are a non-commercial work because you are less likely to be seen as being, as taking money away from the copyright holder.
ELM: So, when the OTW sided on the non, you know, it’s very kind of—the OTW—
EGT: Well I wasn’t there, so…
ELM: Right, but we have to assume…I mean, it makes sense to me in the sense of like, you need to, like, they picked an all-or…like, they picked a hard…I mean in the same way as they do with their free speech maximalist approach, they picked a hard line.
EGT: Yes, yes.
ELM: And this is a very, actually a relatively conservative line as far as I understand when it comes to actually how much grey space there is in the law.
EGT: I think that’s right. Yeah.
ELM: OK.
EGT: I think that’s right, to say that it’s conservative. But I do think it’s probably the way most lawyers think, right? Like, you called it “conservative”—
ELM: Sure!
EGT: —I had this moment of being like “Would we say that?” and then I was like “Yeah, we would!” We’re not really risk-takers!
ELM: Minimal risk!
EGT: Right.
FK: I can tell you that having worked with many lawyers on the side of the corporations, lawyers are not risk-takers.
EGT: No!
FK: And you can sit there and talk to them all day about fair use, and a lawyer at any of the major studios is still gonna go “Yeah, but I’m worried about trademark infringement, and also that could not be fair use, so let’s go after them” and people have to come and be like “No, we’re not doing that, buddy!” [laughs]
EGT: When I, so I actually—one of the courses I teach, I teach internet law, and so we do a section on fair use. And the book that I use actually has a little, like, section where it’s like…it doesn’t say “no good lawyer,” but it says something like “No rational lawyer would advise that their client builds a business based on fair use.” [all laugh] And it’s just like, it’s this stunning statement, but also it makes total sense from a conservative legal point of view, because it’s so unpredictable and you’re trying to advise your clients and you’re like, “I can’t guarantee you’re not gonna get shut down, because it’s so unpredictable.”
So did the OTW, does it take a conservative stance? Yes. But I also think that was like the most legally coherent—
FK: Yeah.
EGT: —justifiable stance for a bunch of lawyers who are like “We don’t wanna get shut down, so we’re gonna go with the, and we’re running a business based on fair use.” It’s not a business. “We’re running a non-profit based on fair use, so we’re gonna go with the most conservative reading of fair use.”
FK: I mean to put this in a little context, I mean, I think it might be worth mentioning to anybody who has not worked with lawyers in this way before, like, I’ve literally had a lawyer tell me that he thought that the best thing I could do would be to never post anything on the internet, because it might negatively impact my business.
EGT: I have also given that advice to clients. I’m like…
FK: Yeah!
EGT: “If you wanna protect your work the best thing to do is not to put it on the internet. Once it’s on the internet I cannot guarantee you that it will not be infringed, that it will not be…” Like, if it’s on the internet there’s nothing I can do.
FK: Oh in this case it was like “No one can misunderstand your statements about, you know, the entertainment industry and fandom.”
EGT: Oh.
FK: Cause my work is in this stuff. And he’s like “Yeah, just don’t say anything!”
ELM: Yeah, Flourish!
FK: “And then you can never be—”
ELM: Never tweet!
EGT: Don’t write anything down, don’t write anything down ever.
FK: You can never be in violation of an NDA if you never make another podcast, you can never be— [ELM laughs] And you know, I’m not gonna take that advice but I understand where it comes from. But like this is the level of conservatism.
EGT: It makes me nervous, every word I’ve said on this podcast is making me nervous deep inside. And we will be done and I’ll be like, “What have I said that is now passed into history that will haunt me forever?” Because this is how lawyers think.
FK: This is how lawyers think!
EGT: It’s terrifying to be on the record ever. Like, you never write anything down. Yeah.
ELM: As the child of a lawyer, this is really hitting home right now. [all laugh]
FK: Is this your dad’s advice also?
ELM: He’s—I would—I—I don’t wanna put any, I genuinely—
FK: You don’t wanna put words in his mouth! [laughs]
ELM: I was about to say something and then I was like—
FK: It would be on the record!
ELM: He wouldn’t appreciate it if I said in a public fashion anything he thinks about anything whatsoever, so…
EGT: Because he’s a lawyer!
ELM: He’s such a lawyer, that’s fine. And also, like, he—oh, I won’t say any details. I was about to give you more details, but…
FK: He wouldn’t like it!
ELM: It really just wars with my nature.
FK: So lawyers are conservative in this way.
ELM: But I think with the OTW’s case, going back to that, it does seem to me too that having a hard-line stance then minimizes the fact of having to make calls. Because there’s a huge difference between saying “give me a tip,” or like, “give me a dollar on Paypal” or whatever, and “Oh, you liked chapter one and two? Now pay for chapters three through ten!” You know? And “Oh, you liked this last fic? Now pay for the sequel by clicking here,” right? And that stuff is I think the stuff that could be truly problematic. Right? And especially if it was at scale.
EGT: Right, yes. I mean well that’s basically just like, I mean, that’s what Amazon’s out there doing, right? Like, isn’t that the—we would be considered like, you’re just publishing, versus just doing—I feel like fanfiction is different. Right? Like…
ELM: Right, right, but imagine if there were 1,000 Harry Potter novels on there where “You liked chapter one?” And completely unlicensed with no sanctioning. Like Kindle Worlds might have.
EGT: Right.
ELM: I don’t think they would love that! You know?
EGT: No. I don’t think so either. It is a true statement that when you are making money, you attract more attention.
ELM: Yep.
FK: But wait, as a person who has been involved in running a fanfic archive, it’s not new for archives to ask for money. So like, at FictionAlley not only did we have a tip jar for FictionAlley, we also like—by the way, one of my co-runners being a lawyer who’s very involved with the OTW! So you know, I know that this is at least a somewhat legally defensible practice, you know, for a fact—we also like, had stuff from the Harry Potter store, the official Warner Brothers store, we had like you know with the partnership thing where—do you remember when you used to be able to have like a store on your website and you would get a commission—
EGT: Yeah.
FK: —when people bought merch through the store, and that was, I mean, Warner Brothers knew about that and they were OK with it. But no one at this time had a problem with that. We needed to keep the servers online. Right? And so I…
EGT: Right.
FK: I’m having a little bit of a hard time understanding, I mean I do get the idea that like, you don’t want your fic to be behind paywalls, but if someone’s saying like “Here’s a tip jar, I made this, I made this app,” how is that different from an archive saying “Here’s a tip jar, we need to keep the servers up”?
EGT: Well and I mean, OTW asks for money to run the servers.
ELM: Right. But is this the thing that leads us then to the second piece of like, number two out of my one-two-three points of: “I can’t ask for a tip, so why are you allowed to ask for a tip?”
EGT: Yes. I guess so? Right, that…ask me more about that.
ELM: Well, anger—so there’s, there were two different things going on.
EGT: Right.
ELM: One was the idea of, either anger that ads—that there were ads on your fic and you say “I posted on AO3 because I don’t want ads,” you know. Me sitting there being like, “You post fic on Tumblr, there’s the weirdest ads on the face of the earth next to your fic, I’m sorry to say.” Right? [all laugh] Oh, God. Do you guys get, I’m sorry. Side note. Do you guys get the ones with like gross skin conditions?
FK: Yes.
ELM: Yes.
ELM: I’ve been getting those a lot recently on Tumblr and I keep saying “This is offensive to me.” I don’t wanna see that! [EGT laughs] And it will not acknowledge my preferences!!
FK: Yeah.
ELM: Unlike every other—
EGT: Because it’s a non-functional website, it’s a non-functional platform! [laughing]
ELM: It is, truly is. I love it though. Some of those ads that show in the dash are truly incredible. These are like the side, not side box. Over by the radar.
FK: Yeah.
ELM: I get these gross skin ads. But some of the, oh God. Delightful. Anyway, you know, people are posting their fic, they say “Well, I chose to post on the AO3 because there are no ads.” You know. “I choose to donate,” me personally saying this, I choose to donate to public radio. Part of the reason is I wanna support them and I listen all the time. Part of it is I understand that they are not, I mean, they have underwriting so it’s actually basically ads. But you know what I mean, like, I appreciate that that’s mostly ad-free. And this is a bit of a premium that I pay to help them do that.
FK: Yeah, you don’t have someone yelling in your ear about, like, car sales every once in a while.
ELM: Yeah! C’mon down!
FK: That does not happen on public radio. “C’mon down!” You don’t hear that.
ELM: “Low APR!” Right. It’s nice. You know, so they’re saying “That’s why I post on the AO3, because yeah, if I posted on fanfiction.net there’d be weird ads next to all my stuff,” or whatever. So I understand that. And so people will, I saw people being upset that they were like, “I don’t want an ad next to my fic!” And it’s like, “OK, you made that active choice.” But then the other piece of it was, “And this person was profiting off me!”
EGT: Right.
ELM: “And asking for tips!” That kind of thing.
EGT: So I feel like there’s two different things. The first thing is that in our society, there is literally nothing that does not have a commercial aspect to it. So I remember saying to a colleague of mine that I volunteer for this non-profit, and he was like, “It’s not a non-profit.” And I was like “It is a non-profit! It doesn’t make any profit.” And it’s like “Yeah, but it needs money.” And I was like “Well, of course it needs money, it needs to run the servers or whatever!” And he’s like “Yeah, so there’s money involved.”
ELM: Right.
EGT: He didn’t really mean like—it’s a non-profit, but it can’t exist outside of this world where you need money. And so all of the things that you were talking about, right, it’s like, you give to public radio so that you don’t have to have ads. Because you recognize that they need money! Right? There’s gotta be a way to make the money somehow. Like, the OTW cannot exist in a world with no money. Like, that’s not—because we don’t live in that world.
And so I feel like it’s trying its very hardest to maintain the least amount of commercialism that it can, because one of the things that has come out in fair use cases over the years is that there’s no such thing as a non-commercial use. That there’s a commercial aspect to almost everything, because we are such, we are a society that needs money. There’s nothing that is free. So the server space isn’t free.
So that’s kind of like the first aspect to it, right, is like: you don’t want your ads, that’s cool, but someone still has to pay. Right? Like, we—and that’s—
ELM: Right.
EGT: That’s just the way that our world works. It’s just how it is.
The other side of it, though, I think is a different question entirely, which is not “I don’t want ads,” it’s that “I want ads, and if I’m not allowed to have them no one else can have them,” almost. Right? Like, that’s what you’re getting into there.
And I don’t really have a good response to that, other than “I don’t know, don’t use AO3 then?” I mean, this is just like…go to Wattpad! Wattpad would let you post stuff, I think? I don’t really know what Wattpad’s terms are. But AO3 has just been like, “Look, in a world that is so commercial, we are doing the best we can to stay non-commercial and this is how we’re drawing this line, because we know, we’ve read our fair use cases and we know this is the cleanest case that we can make and we want to be there for the largest amount of people.”
And again, I’m not speaking on their behalf but as a lawyer, this is the position that I would make. I’d be like “This is my hard line,” right? I’m not getting into—there are other places on the internet you can go to if you want to have that experience. But that’s not this place. But that’s like different than what was going on with the ads—with the app, rather.
FK: Yeah. Well, cause Wattpad does have ads. They serve ads next to your stuff and they also are very open to you commercializing your stuff. They don’t kick people off for having a Ko-fi [coffee], Ko-fi [koh-fye], and in fact if you want to rub the serial numbers off your fic, they’ll encourage you, help you and act as your agent in doing so if it’s, you know, if it has enough attention.
EGT: Right.
FK: So they’re like, very pro-let’s-commercialize-this-stuff.
EGT: Well cause they are a for-profit.
FK: Yeah!
EGT: You don’t have to pay to be on Wattpad.
FK: No.
EGT: So what we know is that if you have a service that is trying to make money, and you’re not paying for that service, then you are the product.
FK: Yeah! Totally.
EGT: That’s just the true story, so.
ELM: You just gave me flashbacks to that famous Tumblr post where people tried to use that argument about the AO3 and then [laughs] were like, “They’re not selling you anything.” Like… [laughs]
EGT: It doesn’t make a profit! It literally does not make a profit, like…
ELM: Yeah! There’s nothing to sell!
EGT: It’s a not for profit operation, right! Yeah.
ELM: No. I’m wondering if you could talk about, cause I know we’ve talked about this offline, well, it was technically online but not on air—
EGT: It wasn’t on the record.
ELM: Yeah that’s what I meant, I’m a great journalist. Talking about your stance—you have a very very strong anti-monetization stance [EGT laughs] when it comes to fic personally.
EGT: Yes.
ELM: And I’m wondering if you can talk about that a little, because like, not to say that your opinion gets outsized weight because you are this famous fanfiction writer, but you are much more widely read than almost everyone I know who writes fic.
EGT: That’s very sweet of you to say. [laughs]
ELM: You know. It’s literally true! I have eyes and I know how to read numbers. But also, like, you have genuinely—compared to I think probably either of us, you’re actually giving up the most monetarily.
EGT: Right.
FK: Definitely.
ELM: Neither of us have ever published a fic that got half a million or a quarter of a million hits, right?
FK: Nope.
ELM: I assume that’s true, Flourish, do you have another secret pseud?
FK: I do not have another secret pseud who has gotten a bajillion hits. I don’t.
ELM: [laughs] So you are giving up more potential monetary value than either of us, and so you have higher stakes.
EGT: I get questions about that actually, that people are like “Why don’t you have some kind of Patreon, or Ko-fi,” coffee—
ELM: Terrible platform.
EGT: “—where we could give you some tips or whatever.” I’m just very, so, I say all this coming from a place of incredible privilege that I have a job that I love that pays me enough. So I really genuinely want there to be a thing in my life that I’m not doing for money. Like, I just think it’s really important that we have things in our lives that we don’t do for money. And fic is my thing.
And I don’t think I’m giving up millions of dollars here, right? I think that the amount of money that I’m giving up is well worth it for me, for the pleasure that I get from writing for fun and really having a lot of fun with it and getting the fan attraction that I get, I mean, I also publish commercially and it’s not nearly as much fun. And it’s not that much money [all laugh] that I’m making from that, and there’s not nearly as much interaction, it’s a whole different—right, the community norms are all different and all of that kind of stuff.
And for me, I just feel like when I, once I became a published writer, it really brought home to me how important it was that I have writing that I not be doing for money. That I not feel pressures of “Oh no, someone paid me for this, like, I’ve gotta sit down, I’ve gotta get something out today, and it’s gonna be good quality and it’s gonna be what they want.” I write for me, and for me mentally, that’s really important.
But everyone’s allowed to make their own choice, I’m just really anti-, I don’t wanna monetize my fic, really, at all.
ELM: It’s interesting, I was thinking about this recently, because there was, there was some interesting writing from people—there was like a piece in one of the New York magazine articles, and then Anne Helen Petersen wrote about it on her newsletter, about hobbies and adulthood. And they were very interesting pieces to read, because they were talking about…the Anne Helen Petersen was particularly interesting because she was talking about how these like, like Tough Mudder?
FK: Oh yes.
ELM: Do you know Tough Mudder?
EGT: I do.
ELM: And this idea of, oh, you feel like as an adult you can’t take up a non-monetized hobby unless there’s like pain. And you have to suffer in some way, right? And like, I think that, I mean, Flourish, I feel like sometimes—
FK: I have almost—
ELM: You might be a little bit guilty of—
FK: I have almost run Tough Mudder, by the way. I signed up and I didn’t actually end up running it cause I hurt my knee.
ELM: Oh, I’m sorry. I think you do have a little bit of the psychology in you, when, even with some fandom stuff. There’s an element of “It’s a slog but I gotta do it!” element to it, right? You know? Which of course, like, people do all the time when they’re writing fic. Where they’re like “Oh, woe is me, the writing, the writing is so,” you know, it’s like—
EGT: I just had a big Tumblr post about that, where I’m like, I don’t wanna contribute to that narrative anymore. I mean, it’s fine, but I think that we never hear the counterbalance of like, “I sit down and writing makes me happy.” It does not have to be like a terrible thing in your life! Like, I feel like that’s the only narrative people hear is like, “If it’s not painful, if you’re not crying, if it’s not the thing you dread most, then it’s like, not worth your time.” Like, that’s not true!
FK: To be, to be clear, I don’t feel this way about it, I do sometimes feel like— [ELM laughs] I just, I just, cause I feel like I’m getting co-opted to this narrative which is not how I feel! Sometimes I do—
ELM: I’m talking about your like, your Star Trek novel reading where you’re like “It’s, some of these are painful but I gotta finish!” And you’re like “Oh, why?”
FK: I gotta say I find that with many of my hobbies, like, whatever, I, you know, when I’m in the middle of knitting a sweater there’s a part in the middle where I’m like, “I’m bored of doing stockinette stitch!” But then like, you get to the end of it and you’re like “I’m glad that I pushed through the stockinette stitch and I enjoyed most of the act of making this sweater!”
ELM: Sure.
FK: “There was just a part in the middle there where I was like ‘ugh, do I have to knit more of this?’” And that’s what I feel often. And I mean, some people don’t wanna do that and I think maybe more power to them? You know? Like…I sorta wish I could delete that middle part?
EGT: And it doesn’t feel like that always—right. I don’t always feel like writing. So I don’t wanna leave the impression that like if you’re not always excited to write that’s a problem, too.
ELM: Yeah.
FK: Yeah.
EGT: I mean, I, I took a few days off from writing because I was really busy and I like, opened my work in progress and I looked at it and I was like, “Ugh. I don’t know if I feel like doing this right now.” Like, I have those moments too. I just always think like, if they’re not being—if you don’t spend the majority of the time liking it, if like, literally…
FK: Yeah, why would you do that?
EGT: —30 days out of 31 you open it up and you’re miserable, like, I don’t know, you don’t have to do that! Like, it’s a hobby! You could do whatever makes you happy! Like, that’s cool. That’s just, yeah.
ELM: Yeah. The reason I brought up these posts, though—this is all relevant obviously—was cause I was, when I was tweeting about it I was like “These are very interesting pieces but this is like very foreign to me.” As someone who like, really, I like, enjoy writing. I have a hobby that’s, I don’t wanna monetize in any way, I enjoy writing fanfiction. Right? Like, I just enjoy writing it.
And I was saying, I always think it’s really funny, cause I’ll have friends who are like literary people and they like respect that, “Oh, you’re writing this fiction stuff,” it’s not like, they’re not like “You’re writing,” they don’t act like it’s super weird or anything. But they’ll say like, “I just don’t know how you have the time.”
EGT: Yes.
ELM: And then they’ll tell me about the like, 15 television shows they’ve watched in the last month. And I haven’t, like, watched—I’ve watched like two episodes of Parks & Rec for the 14th time over the course of like, six—you know what I mean? So it’s like, the idea of this being…not necessarily, it’s, it sits in this weird space because it’s like a productive hobby.
EGT: Right.
ELM: So it seems like work.
EGT: Right.
ELM: But actually for me if I’m not, if I’m writing fic then I’m just not watching TV. It’s not like I have to carve out this special space. Yeah.
EGT: It’s like “where do you get the time” and I’m like, “It’s what I do for fun, so…” Right. I come home from work and I do watch television too, but I’ll like, spend like 45 minutes or whatever just writing. Like, that’s my like, writing time. I’ve set it aside. And I know that I have that to look forward to. Because it’s fun! That’s my like, yeah. So I think other people are watching TV, or, but I have a weird view of this because I used to be a lawyer in a law firm. And so I’m like, super-hyper-scheduled, I schedule my free time because I learned as a lawyer in a law firm that if you don’t schedule your free time then you never have free time, because like your work will always take like every minute of your life.
ELM: Lawyers.
EGT: And so I schedule, like, from seven to eight, that’s my fic-writing time. That’s it. I don’t work, like, from seven to eight, I sit and I write. And that doesn’t always work, like, this week like I said I was super busy, and so I didn’t write from seven to eight, but I try to schedule that, because I know it’s gonna be fun. So it’s like, I find the time because you have to make time for yourself for fun things, because I’ve just learned really quickly, like, if you let it, your job will take every second of every day of your life. You have to be like, “Nope! This is my time to do something fun and that’s OK. I can schedule that too.”
ELM: Yeah.
EGT: My life advice! [laughs]
ELM: I think that’s good life advice. Flourish, you should stop punishing yourself.
FK: I don’t understand where this narrative of me punishing myself comes from! I genuinely don’t! I’m a little upset about this! [all laughing]
ELM: Oh no don’t be upset!
FK: This is not how I feel at all! You drafted me into this narrative and it’s not how I feel about my life! Like, the fact that occasionally I read a bad book—I mean, it’s not—I don’t know!! [laughing]
EGT: Look, some people are made happy by punishing themselves. [FK wails] We do not kinkshame! It’s cool. Do what you wanna do. Like…it’s fine!
FK: I don’t want to be part of that narrative either!! But we’ll move on. [all laughing]
ELM: Yeah, it’s like, I mean, I know you’re, you wanna become an Episcopal priest, but it’s like, kind of a Catholic thing you know?
EGT: It is kind of a Catholic thing, yeah.
FK: I truly don’t, I don’t have any relationship, I know this is your vision of what I live like, but like, it’s not for me, so… [laughs]
ELM: I’m gonna start, start pulling these receipts every time you talk to me. Like, you contribute to this narrative that is true.
FK: It’s not true!
ELM: All right. Wait. We’re gonna end this interrogation of Flourish. [EGT laughs]
FK: Thank you.
ELM: And their soul.
FK: Thank you, I’m really grateful that this is over. [laughing]
EGT: Ending the Flourish portion.
ELM: You’re free.
EGT: I support your mudding. It’s cool. [all laugh]
ELM: Pain!! All right, let’s go back to fic, copyright, fair use, the OTW. I wanna talk a little bit about the OTW’s response and the response to that, which was mixed, I would say!
EGT: Is there anything not mixed, though?
ELM: It’s complicated.
EGT: Everything is complicated.
FK: Yeah, we, the podcast tagline is pretty much “It’s complicated.”
ELM: I did, I did read the comments on it when I included the link to the like, FAQ in The Rec Center, and I felt bad because one person in the comments said “What are you talking about? I use the AO3 app, they have an app.”
EGT: Yes.
ELM: And then like, someone from the OTW was like, “Is someone saying that?! You need to let us know!” [laughs] And I was just, I loved that was their response when it was so clear that, that there is no official AO3 app. Based on all of that. And they were like “No, no, I’m using it.” And it was like, “Oh, no!” [laughs]
FK: All right, so, the AO3’s response to all of this, right, was we don’t—just to rephrase, in case people hadn’t been following this, and you guys can tell me if I’m getting it wrong—they were basically like “We don’t have an app, so there’s no official AO3 app, and we’re not planning on making one for a variety of reasons—”
ELM: Pause! Let’s just clarify what some of those reasons are, because there was a lot of confusion about this as well. It’s my understanding and I don’t think, I don’t know if you will even be able to confirm this—
EGT: I don’t know, it’s all technical stuff I don’t understand.
ELM: I don’t think it actually is—
EGT: Oh, OK. Maybe I don’t know about it.
ELM: Actually, well, so I do know because I’ve been reporting on a very technical piece on the AO3, so I do have some sense of the very limited bandwidth they have on the technical front. But, they do bring in contractors. They have since 2014. To do some of the heavy lifting to like, upgrade—I don’t even, I don’t, I was about to give you the actual details then I was like “No one needs this information.” And it sounds like the decision to kind of start using contractors was debated. But it’s now a part of the, you know.
EGT: Right.
ELM: Regular part of the—
EGT: I don’t think I was part of it when…they were using them when I got there, so.
ELM: Yeah, I believe it was in 2014 was the first time they used a contractor. And it’s for the kind of things that it’s hard to ask a volunteer who maybe doesn’t have a reliable schedule to do, basically. Some unglamorous—
FK: There’s some very good reasons that people need to use contractors. You need to pay someone to do things that no one wants to do and doesn’t have the time to do.
ELM: Yes.
FK: Or maybe it’s hard to find the skills for. And like, fine.
ELM: Right. So, so from a technical perspective, you know, I don’t wanna speak for them in any, I don’t have anything to do with this, but like, building an app—not that costly, you’re already bringing in contractors to work on it, also even building something like what this person built to kind of reskin it and have a little more, just have something you can get in the App Store—it’s my sense, and I don’t know if this is true, but what I’ve always heard and suspected is that the App Store terms—particularly the Apple App Store, not the Google Play store, are genuinely…we throw around this word but they are puritanical.
FK: They are in fact puritanical.
EGT: Yes.
ELM: And famously historically did the kind of like labeling of queer content as “adult” when it was just, you know, two dudes kissing. That kind of thing. And they’re very very anti-sexual-content.
FK: One of my friends had a game that was thrown out of the Apple App Store because it had an object in the game that was called a “prophylactic.” It was not used in any sexual context, it was a game about like, going through TSA scanners, and what the TSA would flag.
ELM: Wow, wow.
FK: But instead of saying that this is because you’re critiquing the TSA, they said you can’t have an image of a condom in your game, even if it’s called “prophylactic” and it’s in a packet. Yeah.
ELM: OK, that’s puritanical.
FK: It sure is!
ELM: So my, like, law and tech question that I doubt we can actually, is, I don’t know how much risk that would open up to, to the actual OTW if, even if it wasn’t…you know, obviously the content would likely still be hosted on the OTW servers, and it could be the same sort of thing where it’s like, you know, you could basically be reskinning it. So you’re not actually hosting that content within an app on the app store. But I suspect that that opens up a kind of, a can of risk-worms, basically.
EGT: Right.
ELM: Risk exposure, essentially. If, you know, if these things are connected. And I know the people, whether they did it or not, were threatening to try to get these apps down by saying they contain adult content, and we know Apple is like this. Which I, you know, I saw an interesting commentary saying, you know, “I don’t consent to having my fanworks used that way, as a bludgeon against,” you know, “ to try to censor content,” right? Talking about consent. Which I thought was a pretty good point. “I don’t want my fics to be used in a sort of morality play,” right?
EGT: Right. So, I’ve never been speaking for OTW this whole time. But I specifically have never had any conversations about any of this. So I really don’t know what the organization is thinking at all. What I do know is, the whole point to founding it was the idea that the fans would own the servers. Right? And you wouldn’t be at the whims of people taking things down, and deciding they were gonna monetize this way, and move stuff all around, right? That was the whole theory underlying like, let’s have an archive of our own.
When you move into the app space, you have lost control. You’re now on Apple space, you’re on Google space, and you don’t own, you’re subject to their terms and views. And just as a matter of, of sort of like, thinking about that? It’s like, now you’ve lost your independence, right? Like, you’ve literally signed yourself over to “We’re gonna be governed by whatever your terms of use are.” And I have no idea if there have been any discussions about that, but this is like a larger problem, that we should be more aware of in society, which is that we are conceding a lot of our rights by joining bigger platforms. Right?
Just stick all your stuff up on Instagram and all your stuff up on Facebook and all your stuff up on Twitter and put it all on Tumblr—and those terms of use are awful. Even putting stuff on like Google Drive! Google says that they can get rid of Google Drive whenever they want. So you’d better have backups of that stuff you put on Google Drive! And that’s just, we’re just giving a lot of stuff away that I’m not sure people are appreciating how rare and important it is that AO3 owns those servers and there’s, like, no one who’s gonna come in and really just impose new terms or anything on us.
ELM: OK but—all right. But what about the rest of the response to that post? There seemed to be some anger that the OTW or the AO3 weren’t quote-unquote “protecting fans.” I honestly think that it’s super cool that I own the copyright to my own work and that I didn’t cede it the second I stuck it on a platform, which like you’re just saying, is in fact what, you know—
FK: But I think this is somewhat what people are confused about, right? So…
ELM: So maybe we should spell it out a little.
FK: So when I post my fic on the AO3, what rights am I giving to the AO3 and what responsibilities am I giving to them, and what, what am I keeping for myself?
EGT: Right. So the way that copyright works, you have a copyright in everything you create as soon as you create it. It’s very simple, it’s very straightforward. So that copyright belongs to you automatically as soon as it is being fixed in a tangible medium. So we’re recording this whole conversation, so we all collectively have a copyright in everything we’re saying right now. So…
ELM: Well, this is CC licensed, so we’re just gonna put it right back out in the world.
EGT: But you still have a copyright on it.
FK: Yeah.
ELM: Right, right.
EGT: This is just you have allowed—
FK: And we haven’t ceded the copyright, it’s not, we’re not putting it in the public domain.
ELM: That’s true.
FK: Creative Commons licenses lay on top of your copyright, it’s a license that you’re giving, yeah.
EGT: Exactly.
ELM: Just so people, because a lot of people don’t really understand what that is. So public domain—could we cede copyright and put something in the public domain?
EGT: Yes. Yes.
ELM: OK.
EGT: You could say “I’m not gonna protect this under copyright, gonna put it in the public domain.” That’s what open source coding is. Right?
ELM: Right. “Do whatever you want with it.”
EGT: Yeah.
ELM: Yes, exactly. But so Creative Commons licenses are a series of basically instructions saying you can reuse my content this way with no restrictions, with these restrictions, et cetera.
EGT: Right. And that is much more common than just sticking something in the public domain.
ELM: Yeah.
EGT: Almost everybody uses a Creative Commons license. They make it really easy for you, there’s like a website you can go to and sort of be like “I want people to be able to do this and not this, what kind of legal language would I use in that respect,” because sometimes you want people to use it for whatever, you just want attribution; sometimes you don’t want people using it for commercial uses, right? Like, you are in control of your copyright. You can make lots of, you can, you know, carve out lots of different exceptions to what you’re OK with people doing.
And fic writers kind of do this instinctively. Right? Like, fic writers put stuff up and some fic writers will be like, “Hey, record whatever you want, make a podcast out of—” make a podcast. “Make a podfic out of anything that you want, I’m fine with it,” right? And that’s like your blanket license that you’re giving for people to make a podfic of your work.
So I think that fanfic writers get the idea that they own some kind of copyright. I think maybe the question that I more often see them have is: “Do I own a copyright considering that I’m taking stuff from an established creative property?” And the answer is you don’t own Harry Potter, but you own the original embellishments of your story. And so that’s, that’s what you have a copyright over.
ELM: But you can’t copyright ideas, is that correct?
EGT: That’s correct. You can only copyright your particular expression of an idea. And this is, I mean, fandom thrives on this. This is why every fandom has a coffee shop AU, because no one owns the idea of a coffee shop AU.
ELM: Just one? [laughs] This is something that I feel like—
EGT: Every fandom has at least one coffee shop AU. [all laugh]
ELM: But I feel like there’s a, there’s often a breakdown in the comments about knowledge about this, cause people will say, you know, “They obviously read all our fic and they stole our idea in the next episode of the show!” I saw this in Sherlock, Season Three Episode One, when they were like “They clearly read all our fic and stole it!” And it’s like, “Well, A, like, these ideas aren’t that unique.” Like, this isn’t like you created like the theory of relativity.
EGT: But that’s actually why we don’t protect ideas, because they’re often not unique.
ELM: Right, right, exactly. But even if it was exactly lifting up, then like, they—you can’t sue. You couldn’t go and sue Moffatt and Gatiss for stealing your idea.
EGT: Not your idea. But you could hit a point where if it was, if it was the same in enough expressions of it…
ELM: The dialogue.
EGT: Yes, the dialogue…
ELM: Yes.
EGT: A particular original character you’d added with this name, with this career, with this physical appearance, who said these words: all of that stuff would be what’s protectable.
ELM: Right.
FK: OK, but to get us back on the original point, right, so you own your own—you own the copyright in those parts of your work, when you put your things up on AO3, they don’t—they, you’re not ceding your copyrights to them.
EGT: No.
FK: You keep that copyright, right? And so—
EGT: You have the copyright.
FK: —under the Digital Millennium Copyright Act, you’re the one who owns that copyright and you’re the only one who can enforce anything to do with that copyright, right?
EGT: Right. So that’s the additional piece of this, is that we have a particular statute, a particular part of the law that deals with copyright on the internet called the Digital Millennium Copyright Act. You will often see it said “DMCA.” And that dictates how you complain about copyright infringement on the internet, that you file what’s known as a “DMCA notice.” And the only person that can file the DMCA notice is the copyright holder. Or the copyright holder’s authorized agent, which is not what AO3 is. That’s like who your lawyer is. Right? Like, something like that.
And so you own the copyright on your fic, you are just like every other copyright holder in the universe: Disney and Marvel and Universal. You’ve gotta go file your own DMCA notices! They’re incredibly simple to do, most big websites have literal forms that you just like, click on it and you fill out the form. AO3’s Terms of Use actually have like, in the OTW statement on this whole thing, had the parts of a DMCA notice. And you just like fill them all out. There’s like five or six things you have to say. There’s silly little lawyerly things, like, some of the stuff is like “Make sure that you promise under penalty of perjury!” And you’re probably reading that like “Who cares?” Lawyers care a lot about that penalty of perjury thing, so make sure you say that.
But it’s a fairly straightforward process, and if the site doesn’t take the complained-about infringement down fairly quickly, they lose their immunity from prosecution in a court of law. And that’s a big deal. So most sites that are legitimate sites will respond to you fairly quickly when they get a DMCA notice. Theoretically. This is how it should work. Does the law always work this way? No, the world is not a perfect place. But that’s what the theory is behind that.
So the OTW has trademarks, right, and they protect their trademarks, and they try hard to make sure that no apps are confusing and that you don’t think they’re the official app. That’s why when people say “Oh, I used the official app,” the OTW legal team is usually like, “Please let us know! Because there is no official app, so we need to, we need to contact that person.” But as far as what happens with your fics, like, you kind of have to do that, because you’re the copyright holder.
And when you think about that, that only makes sense. Like, the OTW cannot possibly police four million works of fiction or however many they have! Whereas you’ve written like…
ELM: It’s five million now.
EGT: Five million! You’ve written like 22. You can probably do that, you know? I mean I don’t say that to be like, blasé, but it’s just that that’s what you, that’s part of your responsibility as a copyright holder, and trust me, if you don’t like the system, Disney hates it, right? Like… [all laugh] They have to police their copyright and infringement stuff, but that’s just how the statute works. So when people were asking like, “Why didn’t the OTW just have them take all of our fics down,” first of all it didn’t appear to be that they were copied, right, which is another matter entirely, it seemed like they were just linking back. But also, second of all, the OTW can’t sign DMCA notices for those things because they’re not the copyright holder. You are.
ELM: Right. It’s very interesting to me thinking about all this and the confusion about it, because I have been a journalist for so long and so we actually have to think about this at all times. Because when you sign a contract to write a piece…and I don’t, I know some of the things that I’ve written I don’t own.
FK: Yep.
ELM: And we’ve seen now huge spates, in the last five years, because especially all these venture capitalists gutting media organizations, and people talking about their entire cache of bylines on a certain site just being completely, or—I’ve even seen recently there’s been a bunch where instead of just having their pieces just taken from the internet, which I think most journalists now know this is a real fear that could happen with their old stuff, I have seen some where they’ve removed the authors.
FK: Oh yeah.
ELM: And just wrote like, “Staff.” And it’s like, “OK!”
EGT: Yeah.
ELM: But we wind up signing these contracts, when you just wanna make $500 for your article or whatever, and I sit here and argue with them…
EGT: Right.
ELM: But it’s huge now because you have journalists, so many journalists are optioning their stories.
EGT: Yes.
ELM: For, you know, a Hulu series or whatever, right? So it’s like…but there’s a lot of people who I think in the last 10 years have wound up being taken advantage of because you don’t really think about this.
FK: This is why you get such weird stuff in Hollywood where you’ve got, like, the 500 different ways people are credited and like, all of the—this is why you sit through those incredibly lengthy credits and you’re like “Why the fuck are all of these people’s names on here and how,” and it’s because in the context of that…
ELM: Oh, it’s also cause you need all those best boy grips.
FK: Well it’s also because of that. But in the context of that those people are protected by their union and like, because it has to do with who gets money out of what, right.
EGT: Yeah.
ELM: Right, right.
FK: And however that is. So journalists: get together, get together.
EGT: It’s a good thing that AO3 doesn’t take it because that’s what’s causing the problem, Elizabeth, right? Is like, people are losing, people sign away their copyrights. They sign away those particular rights that—
ELM: Right.
EGT: —that they might have. So it’s a good thing that AO3 isn’t taking the copyright from you. That’s good for you. You don’t want that. Because I mean, theoretically that means AO3 could turn around and take all your names off, like Elizabeth’s saying, right? And all that kind of stuff.
ELM: Right. Orphan every work!
EGT: Yeah.
ELM: Or, if you wanna pull to publish, you know? My last job, I was an editor, and we were funded by the Gates Foundation, and so they had…it wasn’t very strict language but they were basically like “You can’t put a paywall up because, you can’t because we want this to reach as many people as possible, because it’s about science,” and all this. You know. Gates, blah blah blah.
EGT: Whatever, savin’ the world.
ELM: Whatever. So, we, you know, we had a lot of issues with this, because we were publishing under Creative Commons licenses. And we had to explain to writers that like, no, it has to be a non-commercial license, because you know, there are ways that things exist in the commons that are antithetical to individual authors, you know what I mean? It’s like a really tricky balance, basically.
And like, I don’t know. Maybe it’s a lot to ask, like, every single person in fandom to understand this, but I feel like a fundamental of like—it’s yours! You own it. If you wanna, you know, we were slightly stymieing some of these journalists by saying “it has to be published non-commercially.” If you wanna take your fic down and turn it into, you know, a fluffy rom-com book or whatever, the AO3 can’t stop you. Right?
EGT: Right!
ELM: Whereas like, with my previous job, we might even say “No you can’t actually profit,” you know, et cetera et cetera. You know what I mean?
EGT: I mean I think that—
ELM: The control is so much in the writers’ hands.
EGT: I feel like you’re right, that it’s a lot to ask every person to understand copyright law. I get it. I teach it to people in 13 weeks and I don’t think that I get across to people, right, like—so I understand that not everyone wants to be a lawyer. Trust me, I understand that. [all laugh] Very much.
But, I do think if the only thing people understand that copyright law is so complex because we’re trying to balance—how do we get the most creativity? That’s what we’re trying to do with copyright law. It’s supposed t o be a really tricky balance between incentivizing and letting other people be creative and build on what other people have done. It’s not easy. It’s really complicated.
And I think if every fic writer could just take a lot of pride in the fact that they’re part of this really complicated canvas, they’re contributing to like, this astonishing creative culture that we have, that they’re contributing creativity and it should definitely be protected as fiercely as I have seen them want to protect it, but then they’re also part of this ongoing conversation. And that’s just what copyright law is. And if they can just kind of get that like, there’s a lot of complexity there, so just beware. If people are talking in black-and-white, like, you know, “That’s the end of fair use, it cancels everything,” it’s probably not a true statement because it’s just so complex.
ELM: All right fandom.
FK: Gauntlet thrown, I guess? I don’t know. That was good, that was really—
EGT: Was that mean?! I meant it to be inspiring!
FK: Not ‘gauntlet,’ that’s really military.
EGT: That was an empowering speech!
FK: It was empowering.
ELM: It was a call to arms!
EGT: Thank you.
ELM: Like, celebrate—
FK: Yeah OK, that is the better martial metaphor. It was a great call to arms. [laughs]
ELM: Yeah.
EGT: Thank you.
FK: All right well thank you so much for coming on and explaining all of this. I know it wasn’t—
ELM: Hang on, Flourish, hang on. We didn’t get to the most important topic at all.
EGT: The schmoop plateau topic?
ELM: Yeah, I just don’t think—I just don’t know about the schmoop plateau.
EGT: Elizabeth, we’re out of time. [all laugh] First of all though, I wanna make it very clear to everyone listening: “schmoop plateau” is not my term, that is Elizabeth Minkel’s term.
ELM: I own the copyright in “schmoop plateau”! [laughing]
FK: Do I have to come and separate you two? Just reach through my computer and separate you.
EGT: That’s fine.
FK: We maybe will have another episode where we argue about the purported schmoop plateau.
EGT: Yeah.
ELM: It’s not just the schmoop plateau! Because EGT has this like—
FK: Elizabeth.
ELM: —false narrative—
FK: Elizabeth.
ELM: —about, about—
FK: Elizabeth.
ELM: —intellectual angsty fic—
FK: Elizabeth, Elizabeth.
ELM: Ohh!
FK: I’m restraining you. [EGT laughing] You’re restrained. Just imagine my hand gently reaching out and covering your mouth, very lovingly.
ELM: Having you on—
EGT: I’ll come back and talk about schmoop plateaus.
ELM: I don’t consent to that. [all laugh] We’ll bring Aja on so it’ll be like a—
EGT: I’m gonna ask your listeners, like, to do a write-in campaign saying how much they wanna hear this discussion.
FK: This has been a delight. Thank you for coming on, EGT. And Elizabeth—
EGT: Thank you for having me.
FK: —no thank you to your desperate desire to argue about schmoop plateaus.
ELM: We’ll discuss this later.
EGT: Elizabeth hates happiness.
FK: Goodbye, EGT, goodbye.
ELM: Excuse me!! [all laughing]
EGT: Goodbye!
[Interstitial music]
FK: Ahh, it was a delight to have Earlgreytea on! I feel informed.
ELM: Did you, did you not know that stuff before?
FK: I knew some of that stuff, but I still feel informed.
ELM: I do really, I do really appreciate an understanding that fair use…as you know, I am very interested in the law. You know this.
FK: I do.
ELM: I worry that this is eventually gonna suddenly lead to me becoming a lawyer, which my dad probably, I shouldn’t say anything about him.
FK: He would hate it.
ELM: Shouldn’t mention him at all. [laughs] I don’t know how he would feel! But every time I end up doing, like, legal, like, research on the law for like a fic or something, I’m like “Oh no. Is this where it’s gonna wind up?” But I appreciate this kind of, the idea fair use…I did not know there wasn’t actually some sort of statute in the sense of, understanding the kind of iterative, the carving-out kind of thing—which is the way actually a lot of the law works, basically. It’s not set in stone in the, in an amendment or something, you know.
FK: Yeah.
ELM: But actually it’s over a series of like, kind of prodding and poking at the issue from different angles and setting precedent. So it’s really nice to be given that context and obviously I find that stuff fairly interesting too. So it was just incredible for me.
FK: Yeah!
ELM: I enjoyed it.
FK: Enjoyable all around.
ELM: Take that information and go write some non-monetized fanworks.
FK: Yeah, that’s, that’s I think the outcome of this, is that everyone should go write some non-monetized fanworks, as always.
ELM: Yeah!
FK: Or draw them!
ELM: Well…
FK: Or…vid-edit them…
ELM: Right.
FK: Or construct a costume or something.
ELM: OK good, why don’t you just name some more fanworks, thank you.
FK: Make all of them, all the fanworks.
ELM: Good, great. OK, all right. Well, I’m sure people are gonna have thoughts about this. Excited to hear them.
FK: Me too!
ELM: Truly.
FK: [laughs] All right, I will talk to you later Elizabeth, and maybe we’ll talk about those thoughts.
ELM: All right, maybe we will. Bye Flourish!
FK: Bye!
[Outro music]