[Air-L] Using screen captures in Thesis paper

Tue Jul 10 13:25:52 PDT 2012

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 at 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 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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>
> --
> School of Law
> University of California, Irvine
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-- 
Alejandro Tortolini
http://dooid.me/aletor