Dear Dan: As I see in the Terms Of Service (TOS), Gaia Online is ruled by California State laws... Taiwanese copyright applies? Best, Alejandro Tortolini Scitech journalist - Teacher 2012/7/10 Dan L. Burk <dburk@uci.edu>
Okay, I guess I had better step in.
1) Fair use is specific to the United States (and Israel). Emily appears to be located in Taiwan. She almost certainly has no fair use claim.
2) There may possibly be some local exception or privilege, but she would need to consult local counsel to find out. I don't do Taiwanese copyright, and I doubt anyone else on the list does either.
3) However, she has less of a copyright problem than a contract problem. Under the ToS, she purportedly waives any applicable exception or privilege. If the ToS is enforceable, the copyright question is largely irrelevant.
4) It may be that the ToS does not constitute an enforceable contract in her jurisdiction. Again, she would need to consult local counsel familiar with her jurisdiction's contract law to find out. I don't do Taiwanese contract law, etc., etc.
5) There is probably no clean solution to her problem. Realistically, if she cannot get permission from Gaia Online, her choices are either to use the material and hope no one notices and/or cares, or to do without.
Regards, DLB
Dan L. Burk Chancellor's Professor of Law University of California, Irvine
Emily,
You ask a very interesting question. I can only speak to US law, but I'm of the opinion that the previous posts mentioning fair use are probably correct. Transformativeness is one of the unwritten, although arguably most important, considerations in a fair use analysis, and I imagine that your use will be quite transformative. Another major consideration is the extent of your use, which compared to the entire game, I suspect will be relatively minor. As James mentioned though, this analysis changes if you're writing a thesis versus publishing a book (commercial gain is a factor that will be weighed against you).
One thing to keep in mind is that the US fair use statute is an exemption, meaning that you are technically violating a copyright, but you're basically forgiven by the law. Unfortunately, that means that you never really know if you'll be forgiven until you get to court. That implies that you should /always/ get written permission where you can. I'd also encourage people not to rely too heavily on the "educational fair use" being discussed because I've seen quite a few cases limiting the scope of that defense in the past few years. Always consider all aspects of your use, and don't just think, "well, it's for education, so I'm fine." When in doubt, make friends with a lawyer or buy me a beer and then ask.
A cursory reading of that TOU you excerpted seems to me that it doesn't give them any more rights than those conferred by the Copyright Act. More interesting to me would be a TOU that attempted to limit your fair use. I'm glad you posted this because I'm writing an article right now on copyright owners contracting around other provisions of the Copyright Act and I hadn't considered the fair use angle.
Best,
Josh
---- Joshua Auriemma, Esq. Ph.D. Candidate — Penn State Mass Comm. http://legalgeekery.com
On Jul 10, 2012, at 7:24 AM, Mark Chen wrote:
Howdy,
Peter's fair-use argument would be my argument. Tho... I'm not a lawyer either... :)
Emily presumably isn't selling her thesis; nor is she distributing it for commercial gain. In fact, she's not redistributing the work as work, per se, but rather as an object of study that is included with the actual work that's being distributed (her writing and analysis and commentary about the work). Blizzard has a similar terms of service agreement with WoW. Many, many scholars used WoW screenshots in their research both with and without permission, the latter probably making a fair-use argument.
Also, I have no idea if being in Taiwan changes things.
mark
On Tue, Jul 10, 2012 at 5:13 AM, Peter Gloviczki <glovi002@umn.edu<mailto:glovi002@umn.edu>> wrote:
Hi, Emily and all,
Could Emily make a fair-use argument? Something along the lines of--this information is publicly available, and for research purposes, it should be permissible for her to include the screenshots with proper attribution--I'm not a lawyer or a legal scholar, but perhaps some that are on this list might be able to comment?
Peter
On Mon, Jul 9, 2012 at 10:45 PM, Emily Liu <b941020045@gmail.com<mailto:b941020045@gmail.com>> wrote: Dear All,
While doing my research on the online forum-based interactive gaming site ( www.gaiaonline.com<http://www.gaiaonline.com>), I have encountered another problem.
The site's Terms of Service mention that "The visual interfaces, graphics, design, compilation, information, computer code, products, software, services, and all other elements of Gaia Online provided by Gaia, including without limitation any artwork, Gaia virtual items, Gaia Gold, Member Submissions, Gaia Member Online Accounts or User IDs, or visual art and any combination thereof (all of the foregoing, collectively, the "Materials") are protected by copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except as expressly authorized by Gaia, you agree not to buy, sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized or commercial use of the Materials. You agree to abide by all copyright notices, information and restrictions contained in any Materials." Yet I need to include screenshots of the forum and user avatars in my thesis to illustrate my research site and let others understand how forum-based role playing is conducted.
I have tried to get authorization to use the site's images by writing to their usertalk email, public relations email, and the site moderator, but received no replies. In this case, can I still include screen capture images in my paper? How should I deal with the issue of copyright or authorization?
Thank you
Emily
--
Min-Ju Liu (Emily)
M.A. Student in Applied Linguistics
Department of Foreign Languages and Literature National Sun Yat-sen University _______________________________________________ The Air-L@listserv.aoir.org<mailto:Air-L@listserv.aoir.org> mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
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-- Mark Chen, PhD | Post-Doctoral Scholar | @mcdanger | markdangerchen.net<http://markdangerchen.net> University of Washington | LIFE Center | Inst for Science and Math Ed | Center for Game Science This was sent from a PC with a full-size keyboard; misspellings and brevity are entirely my fault. _______________________________________________ The Air-L@listserv.aoir.org<mailto:Air-L@listserv.aoir.org> mailing list is provided by the Association of Internet Researchers http://aoir.org Subscribe, change options or unsubscribe at: http://listserv.aoir.org/listinfo.cgi/air-l-aoir.org
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-- Alejandro Tortolini http://dooid.me/aletor