AngiePen (angiepen) wrote,
AngiePen
angiepen

Browsing the FanLib TOS

Just to add my two cents' worth to the rumbling about FanLib.com....

stewardess had a good idea about protecting our names so I'm in the process of signing up for an account, just so no one else can grab "AngiePen" and post crap in my name. Ignoring for a moment the ridiculously lame search functions and other coding and organizational issues which a commercial set-up should be able to afford to do at least as well as any free fan-run site, let's take a look at the TOS. (All bolding mine.)

Certain information about You is subject to our Privacy Policy. For more information, see our full privacy policy at [edited to remove link.] 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.

Umm, right. :/ Sure, I'm going to post stories there after agreeing that a bunch of corporate drones are allowed to edit them. No prob. [eyeroll]

You know, I get that there might be some horribly offensive whatver posted [cough] but it'd be more than adequate to reserve the right to "refuse to post or to remove" that material. There you go, that covers it. WTF is this "edit" thing coming from?

FanLib claims no ownership or control over Your Submissions.

(Except where we said above that we can edit them if we want to.)

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.

Sooo, if they decide some day to publish and sell an anthology of fanfiction "in connection with the Web site" then that's okay and they don't owe us any royalties? Check. [earnest nod]

I know what they're getting at here, but it could be interpreted in other ways as well and if it comes to a court case, they have a lot more lawyer money than I do, or than all of us together do. You'd think they'd have spent a tiny bit of that money to have a lawyer come up with a better, narrower way of wording this.

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

So they're perfectly happy to sit there and rake in money from ad revenue but if some copyright holder who's not a part of their little cartel decides to sue, it's the author's ass hanging over the fire and FanLib will just shrug and point to the TOS. (No, really, we thought they had your permission! You mean they didn't??)

FanLib does not permit copyright infringing activities and infringement of intellectual property rights on its Website

Oh, please! Until there's been an actual court case, this is all up in the air and no one knows for sure whether or not fanfic is fair use. That being the case, this is just a lame attempt to weasel out of responsibility for setting up a service the purpose of which they know damn well is to host unauthorized stories based on copyrighted characters and settings and profit by it through ad revenue.

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

Which means that if they turn around and sell your e-mail to spammers after all (for example) your "sole right and remedy" is to cancel your FanLib membership.

Violation of the TOS may subject the Member to international, federal, and/or state civil and/or criminal liability. FanLib will, where appropriate, attempt to refer actual or potential violations of laws to the proper authorities, and fully cooperate with authorities in the investigation of any suspected criminal or civil wrong. FanLib assumes no obligation to inform a Member in the event that the above-mentioned referral or cooperation has been provided and, in some cases, may be prohibited by law from providing such notice.

You know, this is probably just me being paranoid here but since the TOS prohibits any posting of material which violates someone else's copyright, they could in theory have set up this site to draw in as many fanfic writers as possible with the intention of turning around and smacking all of them for copyright violation, whether that means direct prosecution of people who are writing fics based on properties whose owners are represented on the FanLib board, or sending notification with names and e-mails and copies of stories to the copyright holders who are not associated with the site. I'm just saying.

We do not control the information provided by other Members which is made available through any Member's Account. You may have a risk of dealing with underage persons or people acting under false pretense. You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials residing on the Website ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that You, and not FanLib are entirely responsible for any Submissions (defined below) that You post, email, upload, transmit or otherwise make available via Your Account. FanLib does not control the Content posted by Members on the Website and, as such, does not guarantee the accuracy, integrity, [==>]legality[<==] or quality of such Content.

[Bracketted additions mine.] Just underlining, with a thick black marker, that FanLib is not responsible for any material uploaded to the site which violates copyright.

The Website must not be used: (1) to store, publish, distribute, or otherwise disseminate unlawful material or information including, but not limited to: threatening, harassing, defamatory, obscene, vulgar, indecent, hateful, objectionable, tortuous, libelous, deceptive, or fraudulent information and materials

Heck, that lets out three-quarters of the fanfic on the net already. [eyeroll] And how can fiction be anything other than "fraudulent?" :/

[Continued from the section above] (6) in the furtherance of any activity, that infringes (directly or indirectly) upon the intellectual property or proprietary rights of others, including, but not limited to, copyrights, trademarks, service marks, trade secrets, and patents;

No, really, FanLib had No Idea At All that there was ANYTHING on their site which infringed upon anyone's intellectual property! I'm sure FanLib's lawyers are practicing their innocently aghast expressions of remorse as we speak.

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.

No, really! We mean it! If Joss Whedon or Christopher Tolkien or Anne Rice or anyone else sues your butt, you're on your own. And in fact, if they sue us over a story you posted here, you have to defend us too! [high-five!]

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 other words, sounds like if you have a dispute you have to sue them within six months or you're out of luck. They, on the other hand, can sue you whenever they want, up to and including forever.

The laws of the State of New York, excluding its conflicts-of-law rules, govern the TOS and Your Account.

Umm, wait, since when are people (companies, corporations, etc.) allowed to cherry-pick which laws in their jurisdiction do and don't apply? Anyone out there who can explain this? o_O

Also, there are a couple of mentions of their "fees," (VI.4, VIII) which sounds odd and even suspicious for a free service. Looks to me like they're planning to start charging some time in the foreseeable future and they figured, hey, why should we have to rewrite the TOS so soon?

Other people are talking about other reasons to avoid posting anything on FanLib.com (check out this [EDIT: she unlocked it so go read] by stewardess and this by telesilla just for starters) but to me that TOS is reason enough even if everything else looked just fine. If someone wants to "help us" bring fanfic to the masses and out from under the bush, that could be cool (whether or not it's a good idea in principle is a whole 'nother kettle of twinkies and beyond the scope of this discussion) but only if they're willing to stand with us and accept some of the responsibility in case everything goes pear-shaped, along with raking in the revenue. These people come across like a pack of weasels willing to make a few bucks off the fans for as long as the gravy train is rolling but who are all ready to sever the relationship if anything at all goes wrong. Heck, that "relationship" is already about ninety percent sawn through according to their TOS. It's perfectly clear -- they get the bucks and we get the lawsuits.

I don't think so. :/


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Tags: fandom, issues, writing
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