[Air-L] Using screen captures in Thesis paper

Tue Jul 10 12:58:46 PDT 2012

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 at umn.edu<mailto:glovi002 at 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 at gmail.com<mailto:b941020045 at 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
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>
> --
> Peter Joseph Gloviczki, Ph.D.
> http://petergloviczki.com
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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.
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