More on Post+

[ermingarden]

The OTW legal team released this statement about Post+ today. It's largely focused on legal risk to individual fan creators and makes a very good point about the Digital Millennium Copyright Act (DMCA) that hadn't occurred to me:

"Internet platforms (including tumblr and YouTube and all the other ones) act as a form of insulation from lawsuits. That insulation happens in the context of DMCA takedown notices–rather than suing an individual poster, the copyright owner just asks the platform to take it down. It’s always up to users to decide what to post, and–in the very (very, very!) unlikely event that a copyright holder would decide to sue rather than just relying on the takedown process–users always bear the risk of being sued."

What it understandably doesn't address, but what is I think a more immediate concern for many people, is the legal risk to Tumblr itself as a platform, since it is (a) explicitly encouraging fan creators to monetize and (b) taking a direct cut of that revenue. It's going to be interesting to see how things play out, though if very few fan creators actually sign up for Post+ – meaning the revenue Tumblr acquires from monetized fanworks is negligible – it may be a nonissue; and I might just be moving in the wrong circles, but I don't know a single person willing to touch Post+ with a ten-foot pole.

(As always: I am not an expert in copyright law. Not even a little bit.)
[Edited 8/7 to make it clear I'm not criticizing OTW.]

Comments

[hhimring]

I'm not sure which of the two is of more concern to Tumblr users, but I think it is understandable that OTW is more interested in the issues for individual creators of fanworks, because they are the ones that OTW regards as their clients.

[ermingarden]

Oh absolutely!! Did not mean this to sound critical of the OTW at all, though now that I re-read it I can definitely see where that came from.

[hhimring]

Possibly, I sounded more critical myself than I meant to sound!
I really appreciate your posting on the issue.

[ermingarden]

Thanks!

[pauraque]

IANAL, but platforms making money on content later found to be a copyright violation is already common and doesn't seem to incur legal liability. For example, Youtube gets a cut of the ad revenue on monetized videos that are up for a while and only later get a DMCA takedown notice. Whether it makes a difference that Tumblr seems to be actively encouraging copyright infringement, I'm not sure, but just pocketing the money is (apparently) not an issue.

[ermingarden]

I think Tumblr's active encouragement could make a big difference, but it would depend on how consistent that messaging is. If it's just one Tumblr spokesperson, one time, referencing fanfic authors as potential Post+ users, then a court could be persuaded to treat it like YouTube; if it's a repeated theme in Tumblr's statements about Post+, my instinct is that that would be different. (That said, if Tumblr's very responsive to DMCA takedown notices, as I expect they will be, that would tilt in their favor.)

[sillimarilli]

lol. So, what you're saying here is that, in between the necessity of responsiveness of Tumblr staff to DMCA takedown notices and the Mishapocalypse, the most effective action against Tumblr Post+ would be a coordinated effort to post a massive amount of Disney content behind the paywall, instead of logging off in strike.

[ermingarden]

Mmmmmmm, not exactly – I think the best thing for fan creators to do regarding Post+ is just not use it.

(And wow – I hadn't thought about the Mishapocalypse in ages!)