Thunderdome: "Scans_daily", Peter David, and the legality of the Internet

Today, a website was shut down on the internet.

If you ask why, I’d usually answer “Um… it’s a Saturday.” Yet this particular case has opened what is one of the biggest (non-sexual) Internet Pandora’s Boxes, which is the relationship between copyright holders, artists, and the Internet.

The site was in actuality a Livejournal community called “Scans_daily”, which as you may surmise was a discussion community for posting scans of Comic Books. The frequency at which this happened was, in fact, daily. It started as a slash fiction community, but grew to a discussion of all comics, then to what defenders of the site are now calling a “review site”.

In recent issues of Marvel Comics’ “X-Factor”, writer Peter David has begun a campaign of begging fans to refrain from spoiling the twist endings of the monthly installments on the internet, in hopes that the buzz it generates would help the title’s sagging sales. It seems that this extended beyond the comic page and resulted in David actually checking out major Comic sites to see if fans were listening. This led him to arguably the Internet’s most respected Comic News site, Comic Book Resources, where a fan on their forums linked back to a “Scans_daily” post about “X-Factor #40”.

What David found through the link is really the linchpin of the case. He not only found scans of the issue’s shock ending, but a disproportionate amount of the entire story. He deemed this in violation of the Fair Use Doctrine, and reported it to the copyright holder (Marvel Comics). When Marvel checked back, the scans were gone, pulled offline by Photobucket, the website being used to host the pictures. In the morning, Livejournal had deleted the community for violating it’s terms of use.

Although it seems a fairly regular occurrence, the difference is that the “Scans_daily” was popular in an under-the-radar way, numbering 8,000 Livejournal users. Some of them have emerged and dispersed into the rest of the online Comic community, a few with pitchforks and torches.

One has asked, politely, that Peter David die in a fire. On the man’s own website, no less.

The comic community is relatively small, when put head-to-head with let’s say Jonas Brothers fans and people trying to buy Hondas on Craigslist. What they are, however, are vocal and tightly knit. Everybody knows everybody, and everybody reads everything. The are nerds on the internet after all, and when something happens that affects them, they rally around a keyboard to talk about it.

In a relatively minor way, the “Scans_daily” situation speaks to the trouble the world has had adjusting to the ubiquitous rise of the Internet. Copyright holders are desperately trying to hold onto their professions in world where people are so smart they can reproduce and disseminate anything. Artists are trying to understand how they can continue to exist where everything can be had for free. Consumers are trying to keep in touch with a culture that is increasingly expensive while becoming increasingly broad in its reach. Finally, there is a gap between generations. Not necessarily “Old vs. Young”, rather a generation who had to adapt to the internet and one that’s only known a world with the internet in it.

There’s really no one to blame if you wanted to, for a couple of reasons. One, it’s impossible to know who’s directly responsible for the site’s demise. Certainly, Livejournal is the one who took the community down directly, but it’s impossible to mount a case against them, even if its out of irrational rage. Consumers use Livejournal’s hosting and customization services for free as long as they comply with the terms of use, which are the farthest thing from fascist. Users have a pretty autonomous existence, as long as their not doing anything illegal, including violating copyright.

The users of “Scans_daily” are hurt, because in their minds, many have lost an important outlet for creative and critical expression. As the refugees have said on other sites, they had friends in the community and memories of discussions now gone. It may be a bit hard to understand how angry they are, because all though it’s pervasive, the depth of Internet-only friendships and events are still difficult to grasp. The only thing important to their side, however, is that they feel a powerful sense of loss.

They’re reacting in a normal way to loss – lashing out. With no one to truly blame but themselves, they’re attacking everybody else, but mostly Peter David. It must be stated, however, that no one is disputing David’s involvement was merely telling Marvel, and it became a non-issue when the specific “X-Factor #40” post was removed. He’s high-profile though, and he’s taking the blame for bringing “Scans_daily” down.

They’re taking a lot of different routes to try and justify their outrage, but unfortunately, they can’t win. They’ve tried to state that they weren’t violating Fair Use, which is untrue no matter how you look at it. The Fair Use Doctrine, like much of copyright and art-based laws, use a “balancing test” allowing for various interpretations:

1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) The nature of the copyrighted work;
3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) The effect of the use upon the potential market for or value of the copyrighted work.

If someone were to interpret that half an issue of a comic book was insubstantial in terms of Fair Use (you can’t, but the users sure are trying), it’d still be difficult to prove you were not harming the potential market for the work. It comes down to a single event being enough to cause legal ramifications. Sure, the site wasn’t always like that, and certain readers are crying that they only bought comics because they were spurred to by posts on the site. Yet, if one person didn’t buy a comic because they read the ending on “Scans_daily” or one member posted enough of an issue to defy Fair Use, then it’s illegal.
It’s been brought up that “Scans_daily” was providing a service like the previews companies release of upcoming titles. Intention doesn’t matter, however. Copyright laws don’t break down when you’re trying to help sell something you care about. Companies can release 5 or so preview pages of a comic book because they own the copyright. If they wanted to, they could send the entire issue to a specific website.

It’s a moral question, but stealing a loaf of bread to feed your family is still stealing.

Even though the Internet makes it easy to manipulate copyrighted material, doesn’t make it Thunderdome. It’s hard to police electronic media, but that doesn’t mean the rules no longer apply. If you want to consume pirated material, very few people, including myself, will cast a moral judgment on you. I understand that we all do it, but our collective action doesn't make it a new paradigm for copyright laws. We rationalize it as we will, but the price that comes along with it is this: if we get caught, we have no legal recourse.

No one in the “Scans_daily” situation is being brought up on legal charges, even though it’s in multiple people’s legal rights to do so. All that is happening is that they’ll move to a different location – nothing is even stopping them from moving somewhere else on Livejournal.

The reality of the Internet is that a new generation of fans has been given a place where they feel community based around things they may be mocked for in their everyday lives. We have dedicated fans who are constantly backed-up when it comes to their entitlement issues, and they’ve created a kind of a hive mind that tells them that they’re not merely consumers of their favorite media – they’re a substantial part of it. This is where legality breaks down, especially when stretched over the breadth of something as large and feral as the Internet.

“Scans_daily”, for some of these fans, was a daily part of their routine for five years. That shouldn’t be ignored – these people have lost something important. We also cannot ignore how many of them have reacted at its loss, though… if it was only the community, and not the free comics they felt so strongly about, then there are easy and obvious ways to keep that going.

None of those include setting one of Comics most passionate creators, and eloquent ambassadors, on fire.

Follow the discussion here, on Peter David's blog