[Air-L] Using screen captures in Thesis paper

Tue Jul 10 14:05:28 PDT 2012

Thank you very much, Dan.
Best,

Alejandro Tortolini
Buenos Aires, Argentina

2012/7/10 Dan L. Burk <dburk at 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 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
> >> > _______________________________________________
> >> > The Air-L at listserv.aoir.org<mailto:Air-L at listserv.aoir.org> mailing
> >> list
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> >> >
> >> > Join the Association of Internet Researchers:
> >> > http://www.aoir.org/
> >> >
> >> >
> >> >
> >> > --
> >> > 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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> >> >
> >> > 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 at listserv.aoir.org<mailto:Air-L at listserv.aoir.org> mailing
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> >> >
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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
> University of California, Irvine
> 4500 Berkeley Place
> Irvine, CA  92697-8000
> Voice: (949) 824-9325
> Fax: (949)824-7336
> bits: dburk at uci.edu
>
>

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