SudenKapala wrote: ↑Sun Jun 20, 2021 6:00 am
DarkSabre wrote: ↑Sat Jun 19, 2021 10:16 pm
It’s why the SWCCG never used images until recently (and only of cosplayers) and used prior cards as needed to be sleeved with the new virtual cards.
I always assumed that this was due to CBS being more lenient than SW copyright holders.
Is this assumption wrong?
This assumption is correct. Disney is a vicious guardian of its legal rights -- both its real rights and those imagined by its lawyers -- in part because its business model for decades has relied on artificial scarcity
. I hate the Disney Corporation unreservedly for this.
CBS/Paramount/Viacom learned an important lesson from the 1998 (?) Star Trek Continuum crackdown and the resulting backlash, and has never forgotten it, even though that whole ugly episode has been. The lesson: fans are good for business
. Despite my very serious objections to U.S./International copyright laws and the power they give unaccountable corporations like Disney and CBS, I have to concede that CBS and its predecessors have really gone out of their way to be generous to the Trek fandom -- much more than the law demands. Disney's just evil.
Several people have pointed out or argued that there are significant differences between the CC's actual operations and selling CC cards on eBay.
I wish to add one more significant difference: profitability. Courts of law care about this somewhat (it varies), but CBS specifically cares about it enormously
In general, courts of law are more inclined to be lenient with individuals or organizations that use a copyrighted work non-commercially. This is written into U.S. copyright law (17 USC 107
, subparagraph 1), and courts take it into account. A business or individual that is using a copyrighted work for corporate or personal enrichment had better have all
his legal t's crossed and i's dotted, because he is going to get the full force of legal scrutiny applied to him. However, an organization that is using a copyrighted work for other reasons -- for example, an all-volunteer, not-for-profit organization that engages in limited monetary exchanges solely to keep the lights on -- is more likely to be indulged on other points of fair use law.
(I will not discuss other points of fair use law as they relate to the CC, because I do not see any good reason to give hypothetical hostile future lawyers quotes to deploy in some hypothetical future lawsuit against the CC.)
Now, we could get bogged down for days debating what exactly constitutes a "commercial use" in the sense intended by 17 USC 107 -- and many lawyers have done just that! Suffice to say that selling cards on eBay is clearly, unambiguously, a commercial use, sure to draw a court's scrutiny, while the CC has gone to some lengths to minimize its exposure to accusations of commercial use. But the law only carries us so far here.
As many others in this thread have argued, the CC faces an uphill battle (at best) in any legal showdown with CBS. Therefore, our overriding priority should be to avoid provoking CBS
. We don't have to win a legal showdown with CBS over the finer points of 17 USC 107 if CBS is never cheesed off at us!
And CBS has made it exceptionally clear
that, for CBS
, the line that you must never, ever cross is "personal enrichment."
For years (and years and years), CBS was quite happy to turn a blind eye to fan films, including some very expensive productions, starting with the "Cow Creek Agreement" of 2002ish. They allowed various productions to give big paychecks to "legacy" Trek cast like Nichelle Nichols and George Takei. They allowed productions to offer fans the materials to make their own DVDs of the shows. Eventually, they allowed productions to put out Kickstarters which could (and did) include DVDs as a backer reward. When the big snapback
came and the guidelines were put in place (which did very little to stop amateur fan films, by the way), they explicitly continued
to allow large amounts of money (up to $50,000!) to flow from donors to fan film producers, within limits. (The DVD backer rewards were banned.)
But CBS/Paramount/Viacom always came down hard
if they got wind that you were personally making money off their property. They even took that rule and made it explicit in their fan film guidelines, and their representative, John Van Citters, went still further
in making it clear a few days afterward: They don't really mind fans using other fans' money to create fan things. But they are BIG MAD about fans using other fans' money to pad their bank accounts.
You saw this in the really big confrontations, like the famous Axanar lawsuit, which happened because Axanar used fan money to build a movie studio (for non-Trek, for-profit works!) and sell branded coffee -- among other shocking violations of the informal agreements between CBS and fan films. You also saw it in really tiny confrontations, like when Star Trek Beyond (the US fan series, not the UK fan series, nor the Abrams movie) got quietly taken out behind the shed and shot with a C&D less than 72 hours after CBS became aware that they were selling DVDs directly to fans and (apparently) pocketing the profits. CBS likes the fan shows! They do not like
fan profiteers, which is, as far as I have been able to gather, how they view such people.
Note that none of this has anything to do with copyright law. There is no legal rule determining where CBS sends its C&D's. It's all about CBS's specific preferences. And CBS's specific preference appears to be don't you DARE
take money derived from our intellectual property and use it for self-enrichment. They don't seem to care much whether you use that money to buy a yacht or use it to buy a stick of chewing gum: they just really hate the concept of fans making personal profit off their intellectual property.
So, yes, there is some reason to believe that the CC's actions are legally more defensible than selling cards on eBay. But, more importantly, there is considerable reason to believe that the CC's actions (funding its all-volunteer fan activities) are much less likely to anger CBS than selling cards on eBay (funding the seller's personal bank account).
In conclusion: https://www.youtube.com/watch?v=i4FGvMdhG80