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> 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> wrote:

...

Dear All,

While doing my research on the online forum-based interactive gaming site ( 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 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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-- Peter Joseph Gloviczki, Ph.D. http://petergloviczki.com _______________________________________________ The 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 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.

Emily, This is an important question-Ty for posing it. My concern would be IRB. Since it is specific to each institution, my guess is that you may need to speak with your university's IRB officer. I recall CITI training making an ethical distinction based on privacy (public group, semi-private, etc). There is a clause that allows researchers to research without consent if the research is considered valuable enough and the dangers to the subjects and researcher outweighs the benefits of gaining formalized consent. Again, I would double check your institution's IRB policy to ensure that you follow their guidelines. All that noted, I wonder if gaining permission (although a hassle) via consent forms helps to legitimize online identity/existence and, therefore, what we study. Hope that's helpful. Wendy Wendy K. Z. Anderson Assistant Professor Department of Humanities Michigan Technological University http://www.hu.mtu.edu/~wkzander --------- Sent from my iPod-pls excuse typos or concise language On Jul 10, 2012, at 8:57 AM, Joshua Auriemma <JRA@themcshanefirm.com> wrote:

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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-- Peter Joseph Gloviczki, Ph.D. http://petergloviczki.com _______________________________________________ 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

Join the Association of Internet Researchers: http://www.aoir.org/

-- 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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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

Join the Association of Internet Researchers: http://www.aoir.org/

-- Peter Joseph Gloviczki, Ph.D. http://petergloviczki.com _______________________________________________ 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

Join the Association of Internet Researchers: http://www.aoir.org/

-- 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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-- School of Law University of California, Irvine 4500 Berkeley Place Irvine, CA 92697-8000 Voice: (949) 824-9325 Fax: (949)824-7336 bits: dburk@uci.edu

_______________________________________________ The 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

Thank you very much, Dan. Best, Alejandro Tortolini Buenos Aires, Argentina 2012/7/10 Dan L. Burk <dburk@uci.edu>

First, let me amend my number 1) below -- I did some additional investigation, and Taiwan appears to have adopted a U.S. style fair use provision (which is a bit of a surprise, since I had understood only Israel had done this -- the wonders never cease). I have no idea how they interpret it, and am not inclined to do that much additional investigation, but something based on the four factor test does seem to apply there.

Nonetheless, number 3) below is still the problem.

Which brings me to Alejandro's question, which is a really, really tough international conflict of laws question that I wasn't going to get into.

Short answer: it will depend largely on which court you ask.

Longer answer: The ToS is a private agreement between private parties. If it is an enforceable contract, a court will generally honor its terms so long as the terms do not violate other important policies of the jurisdiction where the court is seated. Since the ToS specifies that it is to be construed under California law, a court reviewing it is likely to mostly honor that provision, but may decline to do so if doing so is contrary to some local policy.

To be specific: the ToS says that Emily has waived any right she might have to make use of the Gaia content. But if the policies behind the fair use provisions in Taiwan are sufficiently important, a Taiwanese court reviewing the contract might decline to follow California law regarding the waiver.

U.S. courts occasionally do this where people have purportedly signed away certain First Amendment protections. European courts routinely do this where people have purportedly signed away certain consumer protections.

I have absolutely no idea whether a Taiwanese court would *in fact* reason that way, which is why I said that Emily would have to consult local counsel who is familiar with how contracts are construed in her jurisdiction. But Emily's local law will trump the ToS choice of law provisions wherever they violate Taiwanese policy.

Regards, DLB

...

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

Join the Association of Internet Researchers: http://www.aoir.org/

-- Peter Joseph Gloviczki, Ph.D. http://petergloviczki.com _______________________________________________ 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

Join the Association of Internet Researchers: http://www.aoir.org/

-- 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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-- School of Law University of California, Irvine 4500 Berkeley Place Irvine, CA 92697-8000 Voice: (949) 824-9325 Fax: (949)824-7336 bits: dburk@uci.edu

_______________________________________________ The 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 _______________________________________________ The 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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-- School of Law University of California, Irvine 4500 Berkeley Place Irvine, CA 92697-8000 Voice: (949) 824-9325 Fax: (949)824-7336 bits: dburk@uci.edu

-- Alejandro Tortolini http://dooid.me/aletor

Hi Emily, It's indeed a tricky situation. Jim makes some important qualifications for the fair use argument. I'll just add that Fair Use is a U.S. specific doctrine, applied as an exception to U.S. copyright law. So this argument may not apply to your project, depending on where the data is collected as well as where you're publishing. It's worth checking on how copyright is interpreted in your specific contexts. I encountered some similar difficulty when wanting to publish screenshots for an academic journal in Denmark. I write a bit about it in this blog post http://bit.ly/xQjV4l . I didn't find a solution, in my case, to allow me to publish screenshots, but I found some good arguments for why it ought to be allowed. A good resource for thinking about this issue is the "Code of best practices for fair use in scholarly research in communication" created by the International Communication Association. http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-be... Annette ***************************************************** Annette N. Markham, Ph.D. Guest Professor, Department of Informatics, Umea University, Sweden amarkham@gmail.com http://markham.internetinquiry.org/ Co-Editor, International Journal of Internet Research Ethics http://www.ijire.net <http://www.ijire.net> On Tue, Jul 10, 2012 at 5:48 AM, Porter, James E. Dr. <porterje@muohio.edu>wrote:

Emily,

The first question I would ask is, Where and how are you planning to publish or distribute your research? If you were using these screen shots in a doctoral dissertation, that's one kind of use -- and one that I would say is more likely covered under educational fair use. If you are planning to use these screen shots in a commercial textbook eventually, that's another kind of use -- less likely to be viewed as fair use. Most journal publishers I know would be reluctant to print screenshots without copyright clearance, or without an indemnity clause in the author agreement. The fact that you have written the company to request permission both helps you and hurts you: Helps you in the respect that it shows a good faith effort to secure permission; hurts you in the respect that it presumes the need to request permission.

Best, Jim Porter

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), 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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------------------------------------ James E. Porter Professor, Department of English and Armstrong Institute for Interactive Media Studies

Department of English Bachelor Hall 356A Miami University Oxford, OH 45056 email: porterje@muohio.edu twitter: http://twitter.com/reachjim web: http://www.units.muohio.edu/english/People/Faculty/I_P/PorterJames.html ------------------------------------

_______________________________________________ The 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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In Europe, we have the reference of Berne Convention article 10 the use of illustrations for teaching for the Protection of Literary and Artistic Works but Gaia Online is from CA. http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P144_26032 Article 10 Certain Free Uses of Works: 1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author (1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries. (2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice. (3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon. El 10/07/2012 23:22, "AureA Memotech" <aurea.memotech@gmail.com> escribió:

Article 10

Certain Free Uses of Works: 1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author (1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries. (2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice. (3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon. El 10/07/2012 05:45, "Emily Liu" <b941020045@gmail.com> escribió:

...

Dear All,

While doing my research on the online forum-based interactive gaming site ( 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 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

Join the Association of Internet Researchers: http://www.aoir.org/

Hi Dan, Thank you and everyone else who has replied to this topic. I have some questions to clarify though, as everything is so confusing regarding the copyright problem. Based on my understanding you said, the claim to fair use may not be applicable to my case, since the TOS is a contract for the users of the site? Is that right? If someone who is in a site with a copyright disclaimer (and no TOS), and like my case, cannot hear back to get permission from the site to use in their study, can they claim fair use as the case? Yet I am not unwilling to get the authorization for using the screen captures, just that no one replied.. So the things that I can do now is to keep sending messages to the site's moderators and other emails and hope that someone replies? And if no one replies, I can either as you suggested to use the image and hope no one notices/cares or not use any images at all? This is a very difficult issue... And I have no idea who to ask in Taiwan... I will try to find someone who is familiar with Taiwanese copyright laws to ask too. Thanks again for your answers. Emily -- Min-Ju Liu (Emily) M.A. Student in Applied Linguistics Department of Foreign Languages and Literature National Sun Yat-sen University On Wed, Jul 11, 2012 at 6:07 AM, Dan L. Burk <dburk@uci.edu> wrote:

Er -- yes. However.

Not to turn this into a copyright lesson or anything, but -- first, the United States is also a Berne signatory, so if this were relevant, Gaia being located in California rather than Europe wouldn't necessarily matter.

Second, notice that under Article 10(2) below, illustration is a matter of national legislation. Not even all the EU nations have a quotation/illustration right (see, e.g., Annette's previous message, about the blog post where she discovered that Denmark mostly doesn't).

Third, in countries that have implemented such exceptions, permissible "quotation" and "illustration" can be extremely narrow -- not necessarily helpful to a situation like Emily's.

And, fourth -- oversimplifying a bit -- treaties seldom provide rights; they reflect agreements between nations to provide rights. So you generally have to look at national law rather than what is in treaties (especially *this* treaty) to know what is allowable.

Regards, DLB

...

In Europe, we have the reference of Berne Convention article 10 the use of illustrations for teaching for the Protection of Literary and Artistic Works but Gaia Online is from CA.

http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P144_26032

Article 10

Certain Free Uses of Works: 1. Quotations; 2. Illustrations for teaching; 3. Indication of source and author (1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries. (2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice. (3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author if it appears thereon.

-- School of Law University of California, Irvine 4500 Berkeley Place Irvine, CA 92697-8000 Voice: (949) 824-9325 Fax: (949)824-7336 bits: dburk@uci.edu