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Posted on Monday 21 May 2007 at 11:35 am

Watch out FanFic writers!!


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Woah. I'm not even sure how to explain this other than to say avoid fanlib.com at all costs. This is a new fanfic archive. I've been reading about it following various links all over the web and LJ and things are not good.

The biggest problem with fanlib is the nature of their for profit orientation. Their FAQs try so hard to make it all sound so reasonable, though if you are reasonably intelligent you can poke holes in everything they say.

Are you for-profit?
Yes. Some people think that makes us evil. But, sometimes to do things really well, it takes money. We are backed by major investors and we make money mainly by selling advertising, but also by helping other companies like HarperCollins and MSN produce their own fan events.

Aren't other fan fiction sites non-profit?
Many sites that are run by fans as labors of love do not intend to make a profit. But most, if not all, of the large sites that host fan content are decidedly commercial. LiveJournal is for-profit, as is Yahoo!, MySpace, Quizilla, TheForce.net, AtomFilms, and many others with loads of fan fiction and other fan creations. FanFiction.net as well, though many people don't realize it, makes a lot of money.

Will I get in trouble for posting here?
First of all, because of our backing, it is far more likely that if a copyright holder, like a major movie studio or TV network, came after anyone, they would come after us. But, if they did come after you, and you privatized or removed the offending work, it is extremely unlikely that they would take further action. There is simply no business incentive for them to hurt their best customers.

Do I lose my rights or ownership in my work by posting here?
The rights and ownership of fan fiction are a complex matter since it's based on work that may be owned by someone else. But, by posting here you do not lose any of the ownership rights that you may have. When you post something publicly on the site, you give FanLib a temporary right to present it to others on the site. This right ends the moment you remove it.

Why do you need any rights to my work? Are you going to steal it to make money?
If you own or have any rights to the work you post, then we legally need a license from you to display it online. This license terminates as soon as you remove that work. (From the TOS, "The foregoing licenses granted by You terminate once You remove or delete a Submission from the Website.") This leaves us with very little incentive to invest in any product that contains your work, since you could simply remove your work from the site, which ends our license, then sue us. Not to mention, it would probably make it a lot harder to attract members if we gained a reputation for inappropriately exploiting their work.


If we ignore that LJ, MySpace, etc. don't make money from the fanfic itself (they make money and people do post fanfic but the two are not related) and we ignore that they do a lot of hand waving about how they will make a profit and copyright issues, things don't sound too bad. Too bad for fanlib the Terms of Service can't be as vague.

FanLib claims no ownership or control over Your Submissions. You retain all of Your ownership rights in Your Submissions. However, by submitting the Submissions to FanLib, You hereby grant FanLib a non-exclusive, worldwide, and royalty-free license to use, reproduce, distribute, and display the Submissions in connection with the Website. FanLib may prepare derivative works from Your Submissions solely for the purpose of promoting and showcasing them in connection with the Website. FanLib shall not make any use of your Submissions or exercise any of the rights to Your Submissions granted to it hereunder other than in connection with the Website.

Basically, Fanlib reserves the right to make any money possible off your work and will not owe you a thing. This could include publishing your stories in a book form and, as long as the name of the website is connected with the project, you have given them permission by posting your fic with them. This is not the same as just having ads on a site on which your fic is posted. If that is all they intended, they wouldn't need rights to reproduce, distribute, and publish your fics.

Just to make things even better, if the lawyers come calling about copyright violation Fanlib will have made all the money but will still claim you are the responsible party and the one who should be sued. If they are sued, they can sue you for it!

You shall be solely responsible for Your own Submissions and the consequences of posting or publishing them. In connection with Submissions, You affirm, represent, and/or warrant that You own or have the necessary rights or permissions, either from third parties, or through an ultimate determination of fair use under copyright law, as applicable, to use and authorize FanLib to use the Submissions in the manner contemplated by the Website and these TOS.

They are hosting a FANFIC website and claim they assume you have all legal rights to create your fanfics. Yeah, right. Not only will they not protect you for making money off your fanfic, you are expected to protect them:

You agree to defend, indemnify and hold harmless FanLib, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) Your use of and access to the Website; (ii) Your violation of any term of these TOS; (iii) Your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that one of Your Submissions caused damage to a third party. This defense and indemnification obligation will survive these TOS and Your use of the Website.

Another issue is the privacy policy.

Certain information about You is subject to our Privacy Policy. For more information, see our full privacy policy at http://www.fanlib.com/privacyPolicy.do. Notwithstanding the foregoing, FanLib reserves the right at all times to disclose any information as FanLib deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in FanLib's sole discretion. You understand and agree that the Website Privacy Policy, including FanLib's enforcement of that policy, is not intended to confer, and does not confer, any rights or remedies upon You or any other person.

In other words, we can and will disclose any of your information to whomever we want and you have no remedy. Also, that little "to edit" bit in there means they can edit your stories as much as they want without requiring your consent.

And if you don't like anything Fanlib does, your only recourse is to leave the website.

Either You or FanLib may end this relationship, and thus Your ability to use the Website at any time. You understand and agree that cancellation is Your sole right and remedy with respect to any dispute with FanLib. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of the TOS or FanLib's enforcement or application thereof; (2) any policy or practice of FanLib, including the Website Privacy Policy, or FanLib's enforcement or application of these policies; or (3) Your ability to access and/or use the Website. Members may cancel their Account by emailing a cancellation request to support@fanlib.com. Cancellation requests must originate from the email address on Your Account as of the time of the request.

But remember, they already said that you have to defend them when the lawyers come calling even after you end your relationship with the website.

And if you want to think about taking them to court, you have to do it within six months of the violation and have to agree to binding arbitration rather than a trial, though they can take you to court whenever they want and in whatever way they want. Also, they specify taking you to court to collect fees. What fees? Will this become a pay site in the near future?

Any legal controversy or legal claim arising out of or relating to this TOS or Provider services, excluding legal action taken by FanLib to collect our fees and/or recover damages for, or obtain an injunction relating to FanLib or the Website operations, intellectual property, and our services, shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party, unless in our sole judgment, FanLib wishes to consolidate the legal controversy of two or more parties in any legal action.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of this site or services or the TOS must be filed by You within six (6) months after such claim or cause of action arose or be forever barred. Not withstanding anything else to the contrary in this TOS, FanLib shall always have and retain the right to pursue legal action of any kind or nature whatsoever in any appropriate jurisdiction in order to protect our interests.

In short, this is a website that wants to post your fanfic, try to make a profit from it, not give you any of the money, throw you to the sharks if the lawyers come calling, not protect your information, and deny you any legal recourse. Stay away, folks!
Annoyed
Feeling: Annoyed

Comments:

What's Taters, Precious?
mrstater at 4:36 pm on 21 May 2007 (UTC) (Link)
Good grief. Why would anyone want to use their service?
Rachael
bratty_jedi at 5:53 pm on 21 May 2007 (UTC) (Link)
I really don't know. Failure to read the TOS, even giving it so much as a cursory glance, before posting? Though I would hope the FAQs refusal to be specific on issues of them needing rights to your fics and the ways in which they intend to make money would set off alarm bells even without reading the TOS.
JD
lady_bracknell at 5:03 pm on 21 May 2007 (UTC) (Link)
I'm really glad you posted this. I've been approached by them via every site I post fanfic on (I'm assuming they just hit people en masse with PMs, or go after people with lots of hits/reviews first?), and have given them a very wide berth because their ToS scared the heck out of me, and I can't imagine why anyone would want their stuff there.

But I daresay a lot of people won't read those, and won't know what they're potentially getting themselves into, so I'm really glad you've spelled this out. dracothelizard was saying the other day how surprised she was that there wasn't more furore about Fanlib and asking where the Meta was, so would you mind if I linked this? I think there's a metafandom community here on LJ, too, where you might link it for people across fandoms who might be affected.
JD
lady_bracknell at 5:46 pm on 21 May 2007 (UTC) (Link)
Note how I've erroneously capitalised Meta there. Force of habit ;).
Rachael
bratty_jedi at 6:03 pm on 21 May 2007 (UTC) (Link)
I've been seeing bits and pieces around LJ and the web about this for some time but finally saw enough to make me want to read the TOS for myself. I couldn't believe it. My particular favorite is that they say, more than once, that the TOS is applicable even if the laws of an area would state otherwise. They apparently think their TOS is superior to state/national/whatever laws and they get to pick and choose which laws they will comply with and which they will not. Isn't that special?

I posted this just because I hope none of my flist would be silly enough to post at a site without glancing at the TOS but I wanted to do what I could to make sure no one would be taken in. I know this has been kicking around in the background of fandom, the supposed CEO of Fanlib has joined in some of the arguments at various LJ comms and journals, and I think its been mentioned at metafandom though I don't pay much attention to that so I'm not certain. In any event, I hadn't seen much of anything on my flist or in the R/T community at large about this and thought it was time to make sure everyone had warning. If you want to link to make sure the word gets out to more writers, feel free.
author_by_night
author_by_night at 5:33 pm on 21 May 2007 (UTC) (Link)
I'd heard of FanLib, but wow, I assumed it was just another meme or something. (I'm trying my hardest not to get worked up about wank, because it only leads me to have opinions on stories I know one side to.) But... yikes.

I doubt they'll last long, however - surely someone'll complain? I know there's a few authors out there with strong anti-fanfic feelings who'll certainly speak up, and maybe even threaten a lawsuit?
Rachael
bratty_jedi at 6:07 pm on 21 May 2007 (UTC) (Link)
I don't think this should really be wanky. If the CEO of fanlib with his LJ decided to come chat with me, it could get wanky. Other than that, it really is just about telling people that this TOS is set up to be a legal nightmare for any fanficcer. Just don't post fics with them and there won't be any problems. I certainly have no interest in going to the fanlib boards and trying to yell at/argue with them as others are doing. My preference is for warning and avoidance over fighting.
Rainbow Haired Auror
auror_ithilien at 7:08 pm on 21 May 2007 (UTC) (Link)
Yikes! That's really scary.


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