So. WTF exactly is ‘fair use’?
Well now. Given recent events, I think it’s fair to say that I feel like I understand the intricacies of international copyright law a little more than I did a couple of months ago. After my communications with the TPCI lawyer, coupled with some readings from some other sites concerning similar copyright cases, I thought I’d write up a bit of a clarification of how this stuff appears to work.
MANDATORY DISCLAIMER: I am not a lawyer, and the following text is my own supposition. It shouldn’t be taken as absolute truth, and if you see something you know is incorrect, please let me know.
So, the crux of the matter is that ‘fair use’ is a rather convoluted and complicated ‘convienience’ clause added to copyright law, with the original goal of (subjectively) ‘limited’ re-use of copyrighted material without needing to get the original holder’s permission primarily for purposes of things like critical commentary or research. With the existence of the fair use clause, this basically means that most forms of unauthorized copyright usage go from ‘blatently’ illegal to ‘potentially’ illegal.
What I’ve learned from this experience is that using the ‘fair use’ clause certainly isn’t an absolute magic bullet in guaranteeing unlimited use of copyrighted material. If the original copyright holders do see it as infringement, they are able to raise the issue. And as the TPCI lawyer indicated, if the original copyright holders see the usage as infringement, it then becomes the responsibility of the person allegedly infringing on the copyrighted material to establish it is fair use (And from what I gather, that means taking the case to court. ).
Nolan Lawson showed me a very interesting blog post about a dude who actually took a fair use case to court when his 8-bit artwork derived from a photograph was disputed by the original photographer. If the outcome of that rather unfortunate case is any indication, once these kinds of issues are taken to court, all certainties are out the window. And in all odds, it will eventually boil down to a race of whoever runs out of money first.
Suffice it to say, I would never have let iPokédex reach that point. Given it was just meant to be a harmless bit of fun and all, I knew that if Nintendo or TPCI had a problem with it, I would have to take it down. And I was pretty (well relatively ) cool with that.
Now, one point people have been making to me constantly is that ‘Surely since Bulbapedia and Serebii.net and other online strategy/encyclopedia/walkthrough sites are around, then it must be okay for you as well’. This is actually a bit of a contradiction, and it’s actually a rather bad point to try and emphasize. All of those online sites are using the same copyright clauses as iPokédex (I know this because I modeled iPokédex’s clauses around them ), and they are exactly in the same position copyright-wise as iPokédex was; as in, if TPCI really did have a problem with them, they are still well within their rights to shut them down.
So, to use the recent London riots as a rather apt (if not over-the-top) metaphor, trying to make the case that apps should remain up because TPCI hasn’t shut down the other sites is a bit like saying that you thought it was okay to start rioting because other people were already rioting (Eg, you thought it was cool coz others were doing it ). Now this being the case, instead of berating TPCI for taking down smartphone apps, we probably should be thanking our lucky stars and blessing them for NOT turning around and sending cease and desist notices to the online fan sites (which they easily could do to counter that argument). Why aren’t they doing this? Personally I have no idea, but Liam Pomfret of Bulbapedia raised some very valid potential reasons as to why there may be a distinction between fan smartphone apps and fan websites.
In any case, at this point in time, do I regret making iPokédex? Nope. Do I think I should have done anything different? Probably not.
Obviously making a fan production for a very large and popular brand will always be a bit of a gamble as to whether it will actually be ‘tolerated’ or not and there really is no way to actually find out until you actually do it. I tried my best to make iPokédex in such a way that I didn’t think TPCI would have a problem with it (eg, made it totally free, credited all of my sources, made REAL sure it looked polished before release etc ), but in this case, they obviously thought it overstepped the boundaries.
In any case, I hope something good has come from this. It should be pretty clear to TPCI by now that there is definitely high demand for a Pokémon encyclopedia smartphone app and I really hope they might act on this themselves now.
P.S I probably should take the time to mention that we are all VERY lucky to have a fair use clause in our copyright laws. I found out on my iPokédex journey that Japan actually doesn’t have one (which explains the curious lack of imagery on Japanese Wikipedia), so I would have been multiple levels of screwed had this instance been applicable under Japanese law. Thankfully, from what I was told, the Apple App Store, being an American service, holds everything under American copyright law, so it DIDN’T actually apply in this case (thankfully!!).