Short version of events: a scans_daily poster posted half of the pages to the most recent issue of X-Factor, which PAD had told the entire internet not to spoil because he wanted the ending to be a surprise. PAD showed up on the community and apparently got someone telling him he sucked ass in response.1 PAD told Marvel, and Marvel complained to Livejournal, and Livejournal (or their Abuse team, one or the other) suspended the community, possibly because of Photobucket complaining or something instead. (Personally, the idea that Photobucket would all of a sudden complain about s_d using it after, what, five years, seems unlikely to me, and it seems far more logical that Marvel said something to somebody. But if PAD says otherwise, I don’t see the point in calling him a liar.)
People have been asking me for my take on it, seeing as how this site exists primarily because I used to be on Livejournal before I was kicked off for copyright violations along the same lines (although with far less legal certainty about the merit of any said copyright violation charge).
Anyway. Basically at this point you have a goddamned avalanche of bad argument erupting out all over the place, both from scans_daily members and from PAD. The combined force of this stupid is so intense I almost expect Joss Whedon fans to spontaneously show up and tell everybody off for complaining about Dollhouse being a bag of crap and not waiting until episode six when Joss “really gets things going with an episode he wrote himself.” So here is my message to all involved.
Dear scans_daily members: Jesus Christ just shut the fuck up and stop throwing tantrums. This was going to happen sooner or later.
Your entire community – and remember, this comes from a former (haven’t really been to the community since I left LJ) and enthusiastic member – was predicated on copyright violation, and only existed thanks to the whim and good will of every comics company whose material you illegally reproduced. Yes, it may often have been in said companies’ best interests to let you illegally reproduce that work, but that in and of itself is not an argument for why you should get to keep violating copyright if they choose not to let you do that.
Also, do not start talking to me about fair use like you actually know what fair use is, because it’s pretty obvious almost none of you know jack shit about fair use.
If you did know anything about it, you’d know that amount of the work used is a vital component of determining fair use, and that traditionally the amount of work used before a use becomes unfair is fairly low. In Harper & Row v. Nation Enterprises, it was about 300 words of a 30,000-word Gerald Ford biography, which was found to be unfair because those 300 words – or one percent of the total work – contained too much of the vital core of the work.2
Now, consider that the scans_daily “posting limit” rule was half of any given issue of a comic.3 Gosh, do you think that half of the whole work is going to contain too much of the vital core of the work? Because I think that’s some pretty good odds right there. In practice, anything more than ten percent will generally set off alarms. Ten percent of a comic is two pages. I mention this for when the next scans_daily at whatever shitty LJ ripoff site gets nuked for exactly the same reason.4
Short version of above: s_d existed only with the implicit permission of the works’ owners, and you should have been able to figure that out going in. If you were deceived (intentionally or no) by people who told you that the s_d posting policies constituted fair use, that’s understandable – but they, and you, were wrong.
Also: your collective response to PAD’s complaints? Entirely grown up and not making you look like a bunch of spoiled children at all. No, really. The collective maturity being displayed on the Internet this weekend is impressing me no end. I especially like the re-occuring “Pompous Arrogant Dickweed” joke, because HEY THOSE ARE PETER DAVID’S INITIALS! The cleverness on the internet, it just never stops. Seriously, guys, I know something you liked and enjoyed was just taken away from you, but every time you open your mouths and act like you’re three, you just validate the senses of superiority of the people trying to shut you down.5
Dear PAD: A quote.
“My year-long goal is to try and triple sales on this book; putting up free scans of the entire issue so that thousands of fans can read it without having to pay a dime kneecaps that goal. It’s “wow, this issue is great, you should go out and buy it” vs. “wow, this issue is great, you should hit this link and read it for free.”
Ahem. From Paul O’Brien’s Marvel sales recaps at The Beat:
02/06 X-Factor #3 – 48,307 ( -8.3%)
03/06 X-Factor #4 – 48,183 ( -0.3%)
03/06 X-Factor #5 – 46,490 ( -3.5%)
04/06 X-Factor #6 – 45,220 ( -2.7%)
05/06 X-Factor #7 – 44,315 ( -2.0%)
06/06 X-Factor #8 – 76,150 (+71.8%) ["Civil War" crossover begins]
07/06 X-Factor #9 – 68,799 ( -9.7%) ["Civil War" crossover final issue]
08/06 X-Factor #10 – 44,603 (-35.2%)
09/06 X-Factor #11 – 43,431 ( -2.6%)
10/06 X-Factor #12 – 42,909 ( -1.2%)
11/06 X-Factor #13 – 42,844 ( -0.2%)
12/06 X-Factor #14 – 40,208 ( -6.2%)
01/07 X-Factor #15 – 38,693 ( -3.8%)
02/07 X-Factor #16 – 38,240 ( -1.2%)
03/07 X-Factor #17 – 38,067 ( -0.4%)
04/07 X-Factor #18 – 37,851 ( -0.6%)
05/07 X-Factor #19 – 37,898 ( +0.1%)
06/07 X-Factor #20 – 37,105 ( -2.1%)
07/07 X-Factor #21 – 50,227 (+35.4%) ["Endangered Species" backups begin]
08/07 X-Factor #22 – 52,627 ( +4.8%)
09/07 X-Factor #23 – 53,311 ( +1.3%)
10/07 X-Factor #24 – 52,085 ( -2.3%) ["Endangered Species" backups end]
11/07 X-Factor #25 – 79,066 (+51.8%) ["Messiah Complex" crossover begins]
12/07 X-Factor #26 – 84,219 ( +6.5%)
01/08 X-Factor #27 – 81,350 ( -3.4%) ["Messiah Complex" crossover ends]
02/08 X-Factor #28 – 61,173 (-24.8%)
03/08 X-Factor #29 – 54,832 (-10.4%)
04/08 X-Factor #30 – 51,447 ( -6.2%)
05/08 X-Factor #31 – 48,231 ( -6.3%)
06/08 X-Factor #32 – 45,104 ( -6.5%)
07/08 X-Factor #33 – 53,088 (+17.7%) ["Secret Invasion" crossover begins]
08/08 X-Factor #34 – 50,416 ( -5.0%) ["Secret Invasion" crossover ends]
09/08 X-Factor #35 – 44,481 (-11.8%)
10/08 X-Factor #36 – 38,552 (-13.3%)
11/08 X-Factor #37 – 35,754 ( -7.3%)
12/08 X-Factor #38 – 34,425 ( -3.7%)
Not to get all next-generation-of-media/Cory-Doctorow-at-a-copyright-lecture on you,6 but…
…unless the title of that comic becomes X-Factor Starring Wolverine And Spider-Man And Batman, the evidence is pretty obvious you’re not going to triple sales on it without a major crossover, and those sales will quickly vanish after the crossover ends anyway. (And even with the major crossovers, you’ve never done better than to roughly double sales in any case.)
The existing comics market has spoken, and by and large they’ve said “X-Factor? Yes, yes, decent stuff, but where is my comic with Wolverine in it? Ah, yes. Sweet, sweet Logan.” That means if you want to achieve this (ludicrous but admirable) goal of tripling your readership, you’re going to have to actually try and get readers who are new to comics to give your book a try. Now, these “new comics readers” might quite enjoy your comic, but let us be honest: X-Factor is a comic staffed with the B- and C-level castoffs from other Marvel mutant books and so you cannot just say “it is a comic about Madrox and Strong Guy and Siryn,” because Potential New Comics Reader will go “whuh?”
Furthermore, you can’t just point to five-page previews on Newsarama or on Marvel’s website, because nobody who doesn’t already read comics goes there and they’re lousy for actually explaining the ongoing premise of the comic to new readers. Again, you want new comics readers? The existing market has failed you? That means you need alternative sources of marketing, variant methods to hike potential reader interest in your – let’s be honest – niche product. scans_daily was honestly an excellent method of generating new potential reader interest, because there are approximately six billion young nerds – mostly female nerds7 – on Livejournal who would totally be into your comics if only they knew that your comics existed, and some of them are even willing to spend money on them!8
And it’s worth remembering that s_d provided an arena for those young nerds to learn about comics of which they were unaware without first requiring a commitment to becoming part of the “comics fan community.” This is really kind of a big deal, because most of comics fandom seems to think they are not as offputting as, say, LARPers or Trekkers or furries,9 and this is often only marginally true at best. s_d, despite its occasional crankiness, was far more inviting to a noob comic reader interested in comics education and discussion than just about any other avenue available to them.
This is something comics desperately fucking needs in order to survive in any way akin to what we have now, because we’ve seen the results of relying on the direct market and comic book shops to advance the popularity of comics and it just doesn’t work. The fact that s_d was both run independently of any marketing effort by the big comics companies and was hugely popular and successful was not an accident: they have a skillset that DC and Marvel and Dark Horse and Image’s marketing departments do not have and apparently either cannot learn or cannot be bothered to learn.
Now, I understand that you work in comics and are therefore seemingly obligated to mostly not understand or ignore the same market issues that the music and movie industries have been dealing with for over a decade now and also to endorse the repetition of their mistakes,10 and that’s fine, but there’s one fine distinction between those two industries and comics.11 In your comment above, you argue that comics showing up for free on the internet essentially distinguishes the comics audience into “people willing to pay for comics” and “people who would be willing to pay for comics but are happy to read them for free instead.”
This is mostly a fallacy. The comics audience really divides into a bunch of segments: “people who are willing to pay for overpriced monthly comics,” and “people who are willing to buy trades but don’t want to wait for the trade to come out to read the story,”12 and “people who might be willing to buy the comics in some form but don’t want to commit to monetarily jumping into the massive history of a licensed property without reading a reasonable amount of it for free first,” and of course there are “people who just like stealing shit.” Plus a few other categories, but those are the big important ones.
Conflating “people not willing to buy the comics upfront without reading them first in some form” with automatically lost sales is an argument that’s so out of date by now that I am pretty sure it can be found sitting next to cases of New Coke. Arguing that an unauthorized reprint of a work automatically decreases sales potential is contrary to just about all the anecdotal and statistical evidence we have available at this point. And complaining that the reason X-Factor is selling notso-hotso is because people are giving away the thrilling plot twists online is just nuckin’ futs.
Oh, Spoiler Puppy! Now you have ruined that comic book for everybody forever!13
There are plenty of reasons to excuse something that is, at its core, against the law. You can rationalize it all you want. You can explain good things that could come from it… [t]here’s always benefits to someone from theft. But theft remains theft, whether people try to enumerate the benefits or not. As a general rule of thumb, the way you tell the difference between right and wrong is that when it’s wrong, you have to make excuses for it.
This is a bunch of moralizing (remember that any penalties suffered for being found to infringe copyright will be civil ones, not criminal, a point that annoys me every time someone says the s_d folks were “breaking the law”) that overlooks the simple point that there is a proud history of creative types allowing fans to bootleg. The Grateful Dead did it all the time, and they were one of the most financially successful bands ever. Frank Zappa only got involved in “official” bootleg releases because he felt the bootleggers were profiting too greatly from fans’ desire to get copies of his boots. These artists and others like them understood that bootlegs only increased their fans’ loyalty and desire for their official product.
Now, of course you can say “well, the Dead and Zappa and all those others gave permission and that wasn’t the case here.” And that is totally reasonable, as any company whose job is essentially managing (and occasionally creating) valued intellectual properties would of course have no idea about the existence of a web community, reproducing portions of their intellectual property, with membership in the high four to low five figures and readership potentially even higher, that also had multiple working professionals counted as members of the community. As a matter of fact I am dead positive that Marvel and DC had no idea about the existence of scans_daily, a community widely known and occasionally mocked throughout the comics web for its particular peccadilloes, and that their noninterference with that community would of course be ignorance and not implied permission to exist at all.
Or, more succinctly, “yeesh.” Here is a far more likely scenario: Marvel and DC knew about s_d but preferred to turn a blind eye to it.
I don’t see the point in excusing the behaviour at s_d. It was technically illegal and they got pulled down, because Marvel (or DC) had the right at any point to do that. And that is perfectly proper in the legal sense. But that doesn’t make it well-advised to do so, because it isn’t. It’s just stupid.
Anyway, I don’t want to repeat previous arguments that I’ve made before. Suffice it to say that this whole kerfuffle boils down to the “professional does something within his rights but tactically stupid, fans react with unfortunately predictable bile, professional says something ill-advised, fans say more stupid things” vortex we’ve all seen too many times to count at this point.
Oh, and one more thing: without scans_daily, I never would have discovered Rex The Wonder Dog. I also never would have bought The Immortal Iron Fist, Fables, The Walking Dead, Runaways, Agents of Atlas, Gotham Central, Phonogram, Dr. Strange: The Oath, .303, Bizarro Comics, Usagi Yojimbo, Banana Sunday, Ed Brubaker’s Captain America, Rex Libris or Garth Ennis’ Punisher MAX. So there you go.
Top comment: That’s where all the female nerds are at? Dammit. – Pat
- According to multiple sources, it was Livejournal user “kali921,” who has A History Of Similar Behaviour. [↩]
- Granted, this particularly small excerpt was considered to be more revealing due to it having been reproduced before the actual publication of the work, but that doesn’t change the fact that in the United States and most countries with an existing fair use/fair dealing doctrine, the idea that excerpts have to be relatively brief to qualify as fair use/dealing is well established. [↩]
- At the new InsaneJournal version of s_d, it is apparently now one-third, which is still too goddamn high. Drop it to twenty percent and you’ll have a fighting shot at fair use, folks. [↩]
- Granted, you can argue instead that “the work” consists of, say, the entire history of Thor comics when you put up some scans of Thor beating up Loki or whatever. I don’t think this argument is entirely without merit, but I also think it’s reliant on there being less narrative cohesion in your selected sample; if the images in question present a cohesive narrative then I think, given the serialized nature of comics, that they would certainly contain a vital core of a selected subsection of the work. [↩]
- I know, I know – there are people in comics who enjoy feeling superior to other people? I can’t believe it either! [↩]
- This is blatant trolling to impress Cory Doctorow. Hi, Cory! [↩]
- Or “fnerds.” [↩]
- A side note: I know at least two local comics stores who both place steady re-orders for Warren Ellis’ Freakangels trade. You know, a comic which you can read entirely for free on the internet. Turns out people like paper books in their hand. [↩]
- Or anything, really, with a tradition of wearing costumes in public when it isn’t Halloween. [↩]
- See also the Big Two’s repeated argument that “the technology isn’t here yet” for full-scale digital delivery. You know, somebody should really tell all those comics downloaders that the technology isn’t here yet. Maybe that will make them stop downloading comics and reading them on their computers. [↩]
- Well, other than that those industries are relatively healthy compared to comics. [↩]
- I’m in this segment. I also have a full run of X-Factor trades, incidentally. Number of single issues of X-Factor I have purchased: zero. [↩]
- Now they will never get to experience the surprise of one of the main characters in the series predictably returning after a moderately brief absence! [↩]