[Air-L] Using screen captures in Thesis paper

Tue Jul 10 13:58:16 PDT 2012

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 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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>> list
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>> >
>> >
>> > --
>> > Peter Joseph Gloviczki, Ph.D.
>> > http://petergloviczki.com
>> > _______________________________________________
>> > The Air-L at listserv.aoir.org<mailto:Air-L at listserv.aoir.org> mailing
>> list
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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
>> 4500 Berkeley Place
>> Irvine, CA  92697-8000
>> Voice: (949) 824-9325
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>>
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>
>
> --
> Alejandro Tortolini
> http://dooid.me/aletor
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-- 
School of Law
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Irvine, CA  92697-8000
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