Not the test case I'd really want

*thoughtful* So. Fanlib has, quite possibly, already abrrogated 'safe harbor' by altering the meta-information on submissions and selectively deleting certain stories themselves. They certainly put themselves in a dicey position from the start by writing it into the contract that they have the right to edit and alter submissions, and their sales brochure would make pretty damning evidence of intent. Which means they're liable.

If they put their money where their PR mouth is ('we think this is fair use') when the lawyers come, and refuse to back down or cease and desist (which, frankly, I think is unlikely, because they're in the business of making fast money, not risking their corporate asses, but if)...

Then the test-case that finally generates some case law for fanfic specifically will be centered around a) a for-profit corporation and b) whatever teeny or gamer-boy fic is the specific target.

B is not, I think, all that problematic. In fact, it might be good; that kind of fic is certainly transformative as all get-out. It probably has a better-than-even chance of winning under the parody exception, for that matter.

No, it's A that bugs me. Because that is not representative of our usual practices, and it's more likely to actually be judged damaging. All of us over here in a gift economy would probably still be safe, but this first precedent would convince a lot of outsiders (and, hell, probably a lot of us, considering the widespread fannish assumption-of-guilt) that we're not.

Of course, it bugs me even more that Fanlib is abandoning their law-suit-proofness and waving their $3mil lawyer-bait selves around at the very same time they are making extra sure, in their TOS, that it's those poor teenage suckers they've reeled in who have to pay all the court costs. Without, of course, telling the kids about their risks. But that's my ethical objection (well, one of them anyway). The other is my practical objection.

And that's why I'll do whatever I can to support the Archive Of Our Own project (over at fanarchive for those not tracking this). Because if and when it all comes down, I don't want Fanlib to be the face of fandom or be able to pretend they are.

If fandom can give Cassie a couple new laptops, surely we can scrape up an endowment for something that stands to benefit us all. And actually defend us all, when the excrement hits the rotating blades.

The Creative Process

Toting up my fic, and the reactions to the proliferation of it, has reminded me of another notable time of creative frenzy.

When I first met Clarel.

This was in the second year of my Master's, and I was taking an Am Lit Poetry course, and had told my prof that I'd rather like to do something of Melville's for my final paper, and did he know of anything that hadn't been done to death already?

For some mysterious reason, possibly related to the workings of cosmic fate and strange karma, Kenneth did not say "Oh, almost nothing's been done on Melville's poetry at all, pick anything!", which would have been the bare truth. Instead he looked thoughtful and said, "Well, you might try Clarel."

So, all innocent, I went down to the library and looked up Clarel. I discovered it was a 500 plus page epic poem. For futher mysterious reasons, possibly related to the workings of cosmic fate and strange karma, I did not heave it back onto the shelf but instead checked it out and brought it home. I read it.

Then I read it again, appalling my librarianly spouse so badly by being unable to prevent myself writing the most delicate of pencil notes in the margins, that he went and bought me my very own Northwestern-Newberry Critical Edition. I was delighted. I meticulously copied over all couple hundred pages worth of my pencil notes and conscientiously erased them from the library copy.

Then I went back to the library and did a full-scale literature search, checked out the grand total of four books with relevant sections, copied every last one of the twenty or so articles that talked about the poem, ILLing the eight or so we didn't have holdings for, and brought those home to read and make notes in, too.

And then I wrote.

When I showed up for the final presentations, with my fourty page "essay", not counting footnotes, one of my classmates asked me, only half joking, what kind of drugs I'd been on.

As best I can recall, this whole process took me about a month. Possibly less.

It felt exactly the way it felt when I was first writing FMA fic, or when I wrote "Challenge" for PoT. I was seized by an idea and went through the days in a haze of sparkling thoughts and words, and when I turned around an absurdly short length of time later, there was this pile of writing. And it was good.

I think this is the most basic reason why I do not draw any real distinction between "creative" and "critical" writing; they feel just the same. Wonderfully overwhelming at their best.