So, I'm boycotting Hasbro, and I invite you to join me. From this point on I will not buy any products manufactured by Hasbro or their subsidiaries, including Milton Bradley, Parker Brothers, Playskool, Tiger Electronics, Wizards of the Coast, and Avalon Hill. I intend to use any money I save by doing this to support fan creators, and I will maintain this boycott until Hasbro:
- Makes a public statement that fanworks are not a form of piracy and apologizes to the fan creators who they have shut down.
- Retracts any cease-and-desist orders against fanworks.
- Agrees not to treat fan creators as pirates in the future.
You know how people talk about feeling "entitled?" That's what you're doing here.
ReplyDeleteIf by entitled you mean that I believe people have a right to create fanworks that do not interfere with the sales of the original work, and that our current IP law is fucked up for not recognizing it, then guilty as charged.
DeleteThe situation is sadly more complicated than that.
ReplyDeleteFirst off, you're right in that Hasbro is technically free to ignore individual copyright violations as they see fit. However, if they willfully ignore it, it damages their legal ability to defend their copyright should something more serious happen down the road.
The YouTube situation is exacerbated by the fact that YouTube's automated pattern-matching filter bot is... well, you've probably already seen fifty vloggers rant about that ridiculously broken and glitchy program. And not only does it take down too many videos willy-nilly, but half the time the APPEALS system doesn't even work, and automatically rejects appeals without ever actually getting ahold of the copyright holder.
This isn't any one group's fault. Current processors can't handle this kind of complex pattern-matching yet, and by NOT using it, Google would be sitting ducks for predatory lawsuits.
As for the C&D of Fighting is Magic... well, when the game got presented at Evo, after they hadn't even tried to negotiate in any capacity whatsoever, that created a legal mess.
Yes, there are past examples of companies buying up fangames and publishing them (though never, AFAIK, with franchises that are still actively being produced... Mega Man and King's Quest were both effectively dead when Capcom acquired those fangames), however, those games all involved the creators reaching out to the copyright holders and finding workarounds... which is exactly what the Fighting is Magic creators are trying to do now.
Of course, I already don't buy Hasbro products at firsthand retail. But there's also the fact that boycotts don't actually do much (whining tantrums, on the other hand...).
As I understand it (not a lawyer), you do not need to defend a copyright to retain it. If a *trademark* becomes used generically, you can lose that trademark, but that also doesn't require a company to prosecute every use of the trademark (otherwise every book that ever mentioned buying a coke would have to negotiate rights with Coca-Cola, which I can assure you is not the case). The only way a company can lose their trademark to genericization is if they sue someone for using it, and that someone successfully makes the argument in court that the public regards the trademark as a generic term for the product--thermos, for example, is a genericized trademark. It is not sufficient for that someone to prove that there was one time the company knew about a trademark violation and didn't prosecute; that's an urban legend.
DeleteAs for the effectiveness of boycotts, unfocused declarations generally don't work. There have been very successful boycotts in the past, but they require a clear statement of what the targeted company can do to end the boycott, a large base of participants, and attention on (mainstream, industry-specific, or social) media.
Of course they don't automatically lose the copyright. It does make it harder, but in a bunch of little ways rather than one big one.
DeleteFor instance, if they receive a YouTube appeal with the wrong grounds selected by the user? Well, clicking "okay" won't automatically invalidate their hold on the property, but it shaves off brownie points.
(and sadly, Friendship is Witchcraft does not actually fall under the legal qualifications for Fair Use. It's a Derivative Work, which is a big no-no)
Of course, none of this is really a defense of Hasbro, because we already know they're jackasses AND because they don't need defending by random bronies online. However, in cases where boycotts have worked, it wasn't the boycott itself, but rather the PR campaign and statements, that created the leverage. Particularly in this case, since we're not the target MLP demographic, and corporations tend to learn all the wrong lessons from sales losses anyway.
Actually, I'm fairly sure Friendship Is Witchcraft qualifies as a parody as defined under U.S. law--the use of elements of a copyrighted work to comment on that work. For instance, the infamous C&D'd Penny Arcade strip American McGee's Strawberry Shortcake used Strawberry Shortcake to comment on McGee's work, not Strawberry Shortcake, so it's not legally a parody. Yu-Gi-Oh the Abridged Series uses video from Yu-Gi-Oh episodes to mock Yu-Gi-Oh, so it does qualify as one.
DeleteAnd I believe you're straight up wrong that a copyright can be lost, at all, ever--it can be bought or sold, but the only way for a copyrighted work to enter the public domain is for the copyright holder to release it, or for the timer to run out, and currently that's 90 years from the death of the author, IIRC. That's not happening to ponies anytime soon. I am virtually certain you're confusing copyright and trademark here.
I'm pretty sure Fair Use doesn't apply to trademarks either, so it may not be a defense for FIW and Fighting Is Magic; on the other hand I'm not sure either of them is actually a trademark violation either--I don't see much risk of either being confused for or competing with an actual Hasbro MLP product.
I really think this is just Hasbro's lawyers pulling the standard corporate bully tactic. They know the people they're C&Ding can't afford to fight back, so they can freely shut them down and there's nothing anyone can do about it. The only way to fight back is to take the fight somewhere the lawyers are powerless, such as the court of public opinion or the marketplace.