Tag: Corporate Greed

The SFLC Tries to Terminate Conservancy's Trademark

In my last two posts, I've talked about the Linux Foundation's apparent disdain for the GPL (the license that Linux is published under, which allows derivative works but requires them to be published under the same license), and Eben Moglen's apparent souring on legal enforcement of the GPL. I mentioned that the Software Freedom Law Center is seeking to terminate the Software Freedom Conservancy's trademark, and that Bruce Perens believes that this is retaliation by the LF. So let's continue, shall we?

The Linux Foundation now represents corporate interests, not the community. The GPL is designed to protect the community. So there's some friction there right off the bat.

In fact, as I mentioned in the first part, the LF used to have two community representatives on its board, but terminated the position.

Why? Well, it happened right after the Software Freedom Conservancy's Executive Director, Karen Sandler, announced her intention to run for a seat. Looks like the Linux Foundation didn't like that. VMware certainly didn't, since Conservancy is currently funding a GPL enforcement lawsuit against it.

And, as noted in the previous post, Eben Moglen published an article arguing against GPL enforcement. That doesn't seem to have gone over well with the Free Software Foundation; he resigned his position as FSF General Counsel soon after. That's a hell of a thing, after nearly 25 years in the role.

Now, Moglen's SFLC has filed to terminate the Conservancy's trademark, stating that the marks are too similar and could cause confusion. This seems out of the blue; the SFLC started Conservancy, and legally represented it for years; if it were concerned about trademark confusion, it should have expressed those concerns eleven years ago.

Perens went on a bit of a tear about this; he submitted an article to Slashdot titled Software Freedom Law Center Launches Trademark War Against Software Freedom Conservancy, and has commented extensively on two articles at LWN, one quoting Conservancy's post and the other quoting the SFLC's response.

Perens believes the connection is clear: as the Linux Foundation has come to represent corporate members over the Linux community, it has become increasingly critical of the GPL. Eben Moglen and the SFLC, which is funded by the LF, still purport to believe in the GPL, but have become increasingly critical of legal actions enforcing it. The LF includes VMware on its board, and Conservancy is funding a GPL enforcement action against VMware; in light of these facts, it does not appear coincidental that the LF eliminated its community representative positions right after the executive director of Conservancy expressed an interest in running for one, and the Software Freedom Law Center suddenly became concerned that the Software Freedom Conservancy -- an organization which it started -- has a name that's too similar.

So how will this all turn out? I'm not a lawyer, but I think Conservancy is on pretty solid ground here. Of course, if Perens is right, then this isn't really about a trademark at all. And if Perens is right and the Linux Foundation really is out to punish Conservancy, then this action may not be the end of it.

The SFLC and Conservancy: A History

Yesterday, I went over how the Linux Foundation doesn't seem to like the license Linux is published under very much.

Bruce Perens, co-founder of the Open Source Initiative and founder of the Linux Standard Base (which led to the formation of the Linux Foundation), says it's worse than that, and that the Linux Foundation is now undermining GPL enforcement against its member organizations.

This is a complicated story, so strap in. I mean, if this sounds like something you're interested in. If it doesn't, then I don't blame you; come back on Friday, when I'll have about 750 words on April from Teenage Mutant Ninja Turtles.

Still here? Okay.

The Software Freedom Law Center is funded by the Linux Foundation, and provides pro bono legal services and representation to developers of free/open-source software. Its chairman is Eben Moglen, who was pro bono general counsel for the Free Software Foundation from 1994 to 2016. Moglen has done a hell of a lot for free software over the course of the last 25 years.

In 2006, the SFLC launched the Software Freedom Conservancy, an organization that provides free financial and administrative services to free software projects. Today Conservancy represents 48 projects, notably including BusyBox, Git, phpMyAdmin, QEMU, Samba, and Wine. Conservancy is an independent entity and not part of the SFLC, though the SFLC represented Conservancy through 2011.

In 2007, the SFLC and Conservancy began GPL enforcement suits on behalf of BusyBox. BusyBox is a minimal bootable system that's in everything; if you're using a piece of consumer electronics that's more complicated than a microwave oven, there's a good chance it's got BusyBox in it. And a lot of those electronics companies don't bother to follow the GPL and release their source code modifications.

There's been some backlash against GPL enforcement in the years since. BusyBox's maintainer, Rob Landley, later regretted the lawsuits; he deemed them counterproductive, and said they hadn't helped BusyBox or any other project, they'd just convinced companies like Google to avoid the GPL and use permissive licenses instead.

Maybe so. But if nobody ever enforces the GPL, then it's meaningless. A mere suggestion.

Conservancy has continued its GPL enforcement actions. Currently, it's funding Christoph Hellwig's litigation against VMware in Germany. VMware distributes a modified version of the Linux kernel; Hellwig is a kernel contributor and, thus, one of the many copyright holders in the Linux kernel. (While many free/open-source projects require that contributors assign all copyright to a single rightsholder, such as Conservancy or the GNU Project, the Linux kernel does not; every single contributor to the Linux kernel maintains the copyright to the portion of the kernel they contribute, but licenses it under the GPL for anyone else to use.)

Eben Moglen seems to have soured on GPL enforcement. Last year he published an article in the International Free and Open Source Software Law Review titled Whither (Not Wither) Copyleft. His arguments are similar to Landley's: all these GPL enforcement suits are actually bad for the GPL, because they discourage companies from using the GPL at all.

Moglen makes the argument that litigation should be a last resort, and that parties should try to resolve their disputes amicably if at all possible. The thing is, I don't think anybody actually disagrees with that.

When has Conservancy chosen to sue, when there was any other path available? BusyBox v Westinghouse was a default judgement. Westinghouse didn't even bother showing up to court; I don't see how politely-worded E-Mails were going to get it to comply. Conservancy spent three years attempting to negotiate with VMware, to no avail; the lawsuit is a last resort. Whither copyleft? indeed.

Bruce Perens thinks the SFLC's recent trademark action is retaliation for Conservancy's enforcement action against VMware. I'll save the why for my next post. Tune in tomorrow, same Thad-time, same Thad-channel.

The Linux Foundation Hates Copyleft

It's been kinda weird, seeing the Linux Foundation slowly transform into an organization that is fundamentally opposed to the license Linux is published under.

But the Linux Foundation is in the business of turning a profit, and that's meant embracing corporate America -- even Microsoft is now a member. In fact, the board is overwhelmingly made up of corporate representatives now: Facebook, AT&T, Qualcomm, Cisco, VMware (we'll come back to them tomorrow), Intel, HP, Bitnami, Panasonic, Hitachi, Samsung, IBM, Microsoft (Microsoft!), Comcast, Huawei, NEC, Oracle, Fujitsu. There used to be two community representatives on the board, but they eliminated that position (we'll come back to that on Thursday).

Linux is published under the GNU General Public License. The GPL is what GNU/Free Software Foundation founder Richard Stallman calls "copyleft": if a piece of software is licensed under the GPL, then that means anyone else is free to access, modify, and redistribute the source code, provided that if they release a modified version, they publish it under the same license.

Corporations don't much like copyleft or the GPL. They like more permissive licenses, like the MIT License and the BSD Licenses, which allow them to take someone else's code, modify it, and not give their modifications back to the community.

Linus Torvalds, the man who the Linux Foundation is named after, gets this. FOSS Force's Christine Hall recounts his remarks at LinuxCon last year:

“I think that if you actually want to create something bigger, and if you want to create a community around it, the BSD license is not necessarily a great license,” he said.

“I mean, it’s worked fairly well, but you are going to have trouble finding outside developers who feel protected by a big company that says, ‘Hey, here’s this BSD license thing and we’re not making any promises because the copyright allows us to do anything, and allows you to do anything too.’ But as an outside developer, I would not get the warm and fuzzies by that, because I’m like, ‘Oh, this big company is going to take advantage of me,’ while the GPL says, ‘Yes, the company may be big, but nobody’s ever going to take advantage of your code. It will remain free and nobody can take that away from you.’ I think that’s a big deal for community management.

“It wasn’t something I was planning personally when I started, but over the years I’ve become convinced that the BSD license is great for code you don’t care about. I’ll use it myself. If there’s a library routine that I just want to say ‘hey, this is useful to anybody and I’m not going to maintain this,’ I’ll put it under the BSD license.

“Whenever licenses come up, I want to say that this is a personal issue,” he continued, adding a disclaimer most likely meant mainly for the benefit of the BSD folks, some of whom resent Linux’s success, but also to appease big enterprise, which is where the Linux Foundation gets virtually all of it’s funding.

“Some people love the BSD license,” he said. “Some people love proprietary licenses, and do you know what? I understand that. If you want to make a program and you want to feed your kids, it used to make a lot of sense to say that you want to have a proprietary license and sell binaries. I think it makes less sense today, but I really understand the argument. I don’t want to judge, I’m just kind of giving my view on licensing.”

Jim Zemlin, Executive Director of the Linux Foundation, seems to feel a little bit differently. Hall quotes him, in an article titled The Linux Foundation: Not a Friend of Desktop Linux, the GPL, or Openness:

“The most permissive licenses present little risk and few compliance requirements. These licenses include BSD and MIT, and others, that have minimal requirements, all the way to Apache and the Eclipse Public License, which are more elaborate in addressing contributions, patents, and indemnification.

“In the middle of the spectrum are the so-called ‘weak viral licenses’ which require sharing source code to any changes made to the originally licensed code, but not sharing of other source code linked or otherwise bound to the original open source code in question. The most popular and frequently encountered licenses in this category are the Mozilla Public License and the Common Public Attribution License.

“Restrictive Licenses present the most legal risk and complexity for companies that re-distribute or distribute software. These licenses are often termed ‘viral’ because software combined and distributed with this licensed software must be provided in source code format under the terms of those licenses. These requirements present serious risks to the preservation of proprietary software rights. The GNU General Public License is the archetype of this category, and is, in fact, the most widely used open source license in the world.”

Hall adds, "While his points are accurate enough, and reflect what I’ve already written in this article, the terms he uses suggest that the foundation holds the GPL and other copyleft licenses in contempt."

So what's all that got to do with the Software Freedom Law Center filing to have the Software Freedom Conservancy's trademark terminated? Nothing, insist the Linux Foundation and the SFLC. But Bruce Perens -- who founded the Linux Standard Base, one of the organizations that became the Linux Foundation -- thinks it's retaliation for a GPL enforcement lawsuit against VMware.

But that's a story for another post. Or two...

Net Neutrality Day

Today's the Net Neutrality Day of Action.

Here's what I said about net neutrality during the open comment period in 2014, before the Title II rules passed, when the FCC was pushing a policy that would allow ISPs to charge websites for fast lanes:

This is exactly the kind of policy you get when you put a cable company lobbyist in charge of the FCC: a plan nobody but the cable companies could possibly want, and that seeks to make the Internet work like cable TV.

This plan has no benefit whatsoever to consumers. Cable companies demand extortion money from content providers; the providers who are willing and able to pay pass that cost on to their consumers (as Netflix has already done by raising its streaming subscription price), and the providers who aren't are put at a crippling disadvantage. You can bet the ever-increasing bottom dollar on your cable bill that if Comcast had had the opportunity to demand a premium from YouTube to stream video in 2005, we wouldn't be talking about YouTube today -- though maybe that would have been good news for Real Networks, as we'd probably still be limping along on the vastly inferior RealPlayer. Buffering...

This proposal is a government handout to the kind of companies that need it the least: monopolies and near-monopolies that already provide poor service at exorbitant prices, and suffer no market backlash for the simple reason that they provide a necessary service and have no competition.

Google doesn't want this. Microsoft doesn't want this. Netflix doesn't want this. Amazon doesn't want this. Consumers don't want this, and small businesses sure as hell don't want this. The only ones who DO want this are the cable companies who pick our pockets every month -- and their former employees like Chairman Wheeler.

And here's what I said during the open comment period this year, with the FCC preparing to repeal the Title II rules and, once again, proposing Internet fast lanes:

Seeking public comment? This is a farce. Chairman Pai heard exactly what the public had to say in 2014. The public responded, overwhelmingly, in support of net neutrality; indeed, the public interest was so high that the traffic brought down fcc.gov.

If Chairman Pai cared what the public thought, he would not be reversing a rule supported by the public in order to grant more power to internet service providers, some of the most despised companies in America. Nobody wants this except Comcast, AT&T, Charter, and Time Warner.

There is no free market competition in broadband Internet in America. There is no incentive for ISPs to compete on price or on service. We, as Americans, are a captive audience; our only choices are "use whatever ISP is available at our address" and "try to participate in twenty-first century America without Internet access".

We've already seen AT&T prioritizing its own traffic and Comcast banning protocols it didn't like. We need net neutrality protections to prevent predatory, monopolistic ISPs from engaging in that behavior. This is obvious to every American who's seen their monthly bill go up while the quality of service goes down.

But Chairman Pai has made it abundantly clear that he doesn't care what the American public has to say. If he did, he wouldn't even be considering repealing net neutrality.

I was wrong about Wheeler. He backed away from the fast-lane proposal, and passed Title II regulation. It wasn't perfect, but it was better than I ever thought we'd get.

I don't think I'm wrong about Pai. I'd love to be, but I think the fix is in. Pai doesn't give a fuck what the American public has to say.

But it's not about Pai. Pai won't last forever. Trump won't last forever. Even if the Republican majority in Congress sticks around, they're going to have to face their constituents sooner or later. And while net neutrality is a partisan issue on Capitol Hill, it's got broad bipartisan support everywhere else.

I don't think today's protests are going to make a damn bit of difference to Pai. But this is a long game. We need to keep the pressure on.

And hey, I've been surprised before. I thought SOPA and the TPP were foregone conclusions too. Maybe I'll be pleasantly surprised again.

Tracking

I wrote a post about VPNs a few months back, referring to the recent repeal of Obama-era regulations that would have prevented ISPs from selling customer browsing history.

There's a common refrain I've seen from people who favor the repeal, both in the government and in Internet comments sections: "Google and Facebook track you and sell your data, and the government doesn't stop them from doing it, so it's not fair to stop your ISP from doing it!"

Now, this argument is fundamentally dishonest, for the following reasons, off the top of my head:

  • Your ISP sits between you and every single site you visit. Google and Facebook have extensive tracking operations, but not that extensive.

  • You can use the Internet without using Facebook or Google. It may not be easy, but it's possible. You can't use the Internet without your ISP.

  • Google and Facebook's business model is that they provide a service and, in exchange, you allow them to gather your personal data and resell it to third parties. Your ISP's business model is that it provides service and, in exchange, you pay them eighty fucking dollars a month. Did I say eighty? They just kicked it up to one-thirty, if you want unlimited data.

    When you give your personal data to Facebook or Google to sell to third parties, you get their service in return. When you give your personal data to your ISP to sell to third parties, you get fucking nothing in return, because you're already paying your ISP money in exchange for Internet service. Is your ISP going to lower your bill in exchange for taking your personal information to sell to third parties? LOLno.

  • Google and Facebook have competitors. Those competitors don't have the dominant market position that Google and Facebook do; hell, maybe they're just plain not as good. But they exist. They're options.

    There is no significant broadband competition in the US. If I don't like my ISP, I can't just switch to another one, because there is no other one available at my address. My choices consist of Cox, no Internet, and moving.

    There's no incentive for your ISP to behave ethically. There's no incentive for your ISP to charge you fairly. There's no incentive for your ISP to provide quality service. My ISP is a monopoly. Yours probably is too. Or, at best, it might have one competitor that does all the same shit.

  • Google and Facebook have pages where you can opt out of tracking.

But. Despite the intellectual dishonesty of the "but Google and Facebook track you!" argument, there is a kernel of truth in there: yes, Google and Facebook track you, yes it's difficult to avoid that tracking, and no, there are no regulations in place to protect your data. This is a problem.

So, shortly after writing that post, I removed the Google Analytics code from this site. And now I've also updated the site so that the fonts it uses are hosted here at corporate-sellout.com, not called from Google Fonts (hat tip to the Disable Google Fonts WordPress plugin). I'm still using a Google Captcha on the Contact page for now, but I'm looking at alternatives. Plus, there are YouTube videos embedded on this site...and, well, there's nothing I can really do about preventing Google from tracking you when you load YouTube videos. Sorry about that.

I'm also planning on adding SSL to the site, eventually, but I haven't gotten around to it yet.

This blog's not a business. Occasionally somebody buys something through an Amazon Associates link, or buys my book (thanks!), but I've got a day job; I'm not here to make money. I write stuff here because I like to write stuff. Sometimes people like it, and that's cool, and it's cool to know that people are reading. But that's as far as my interest in analytics goes.

I don't resell data; I don't do SEO or A/B headlines or clickbait or any other kind of crap to try and drive people here -- hell, I hate all that shit. But I like looking at site stats once in awhile to see where people are coming from, where somebody's mentioned me, and to laugh at search terms like "did stan lee bone at jack kirby's wife".

So I'm looking for a new stats package. Server-side; just for me, not Google.

Meanwhile, I am looking for ways to use Google as little as possible, not just on this site but in general. I think I can probably get a few more posts out of that subject.

Fanboy Rationalizations

There's one more thing I want to get to before I close out my run of Ken Penders posts, and that's fanboy rationalization.

There's a meme that I've seen infect the anti-Penders fanboys, since the suit was settled: "If only Ken had been nice when he asserted his copyrights, the fans wouldn't be so angry at him."

Here's somebody named Strike Carson making that argument to me in a 2013 comments thread at TSSZ News (via archive.org since TSSZ News appears to have nuked its comments section in a software upgrade):

Penders did something behind the backs of Sega and Archie that strained the relationship and almost got the comic cancelled. Maybe I’m mixing the two stories up… But still, Archie may have ignored him for the royalties, but it was Penders decision not to let Archie know what he was going to do if he wasn’t given the compensation he deserves as stated by law. You know, that whole threatening legal action thing if he’s not paid for what’s legally his? Had he done that in the first place, perhaps he would have had much more sympathy from us.

And here's the same argument, as put forward by Tylinos on the Ken Penders messageboard:

While it'd be silly to deny that The Spice Must Flow is a significant factor in it, it should be pointed out that the most commonly cited reason here was the attitude of the whole thing, and how absurd it all looked. (Even outsiders who don't read or even dislike the comic have been among those against how Ken went about it.)

Ken could've even underminded The Spice Must Flow mentality a bit by easing into the situation with some psychology, starting out slow with a "Well, I did make these characters" and nothing more and slowly building support up to saying "I should get payment for their use," instead of immediately starting out with that.

Heck, odd as it is, even among people against how he's acted, there's been near-unanimous agreement toward him getting reprint compensation for the stories he wrote. (Which, I know, isn't in the way of the spice anyway.)

The Spice Must Flow definitely factored in, but it's fairly clear that going about the whole thing a different way would've changed fan reaction immensely, and could've bitten past it.

And jameygamer in the same thread:

If he had been a lot less uptight when this whole mess started, he would be better off in terms of reputation.

These are people who, during the years Archie was suing Penders, said they were mad at Penders because his claims were frivolous and false. Since it turned out his claims weren't actually frivolous or false, they've changed their rationalization; now they say they would totally have been on Penders's side if only he hadn't been so rude about the whole thing. We have always been at war with Eurasia.

Of course, that's nonsense; it's rationalization. They're not arriving at their conclusion based on facts; they're starting with their conclusion (Rrrr, Penders bad!) and then cherry-picking facts to support it.

A rational person changes his opinion when confronted with new facts. When I first heard about Penders asserting his copyrights, I reacted with disbelief; I thought it was unfathomable that Archie would have neglected to make him sign a contract.

As it became clear that I was wrong and that was exactly what had happened, I changed my opinion. (Not for nothin', I also admitted I was wrong and apologized for being kind of a dick about it.)

These fanboys, of course, are not rational; they haven't changed their opinions, only their justifications for those opinions.

And, needless to say, I don't believe for a second that there is anything Ken Penders could have done differently that would have prevented fanboys from howling for his blood. If he'd done exactly what Strike Carson, Tylinos, and jameygamer said he should have done, then Strike Carson, Tylinos, and jameygamer would be up there saying that they would have taken his side if only he'd done something else instead.

Well, maybe not Tylinos. He seems like a pretty reasonable guy, at least.

And I'm not just saying that because he was (at least partially) agreeing with something I'd said earlier. When he said "The spice must flow," he was referring to a phrase I'd used in a post about Jim Starlin back in 2012:

Guys like that? It's not about the law and it's not about the ethics. It's The Spice Must Flow. It doesn't matter how Marvel treats creators, as long as it keeps putting out product to consume.

There's always a fresh rationalization on the horizon. "He signed a contract." No he didn't. "Well, he's dead now." Okay, but this guy's alive. "The character we know is the work of dozens of creators over a period of decades, so no one person can really claim credit to him." Even if that were true in some cases, Thanos is unmistakably Jim Starlin's character. "Well, it was only a tiny cameo, so he's not entitled to anything." And once Thanos has more than a cameo, it's going to be "Well okay, that's terrible, but the industry's not like that anymore; it's all better now." (A point Scott Kurtz raised recently, right about two weeks before Static co-creator Robert Washington III died of multiple heart attacks at the age of 47 and his family had to turn to charity to get him buried.)

There is and will continue to be a vocal minority of comic book fans who will side with the publishers no matter what. (Oh God how I hope it's a minority -- but I think it is. You can find a vocal population of people on the Internet who will angrily, zealously defend absolutely any dumbass position you can possibly think of.)

And here's what I said to Strike Carson:

Every single comic book copyright dispute in history says the fanboys would have been just as enraged no matter what he did.

Siegel and Shuster sell Superman for $130? Tough titty; they signed a contract.

Jack Kirby gets no royalties for any of the work he did at Marvel? Tough titty; he signed a contract.

Point out that Jack Kirby didn’t actually sign a contract? Well, that’s just how things were done back then, man!

DC continues to exploit Watchmen against Alan Moore’s wishes, even though in 1985 they made a big thing of how it was a creator-owned book? Tough titty, man, he signed a contract!

Marvel demands $17,000 from broke Gary Friedrich and demands he stop referring to himself as the creator of Ghost Rider? They’re just protecting their interests!

Archie screws creators out of royalties for decades, grinds anyone who legally challenges them into paste, actually removes Dan DeCarlo’s name from reprints, then a creator comes along asking for what Archie legally owes him, Archie doesn’t respond, he provides sufficient evidence to back them into a corner and get them to agree to a settlement — and you’re complaining that he didn’t issue enough legal threats beforehand? Seriously, dude?

Yeah. I’m sure if Penders had threatened to sue Archie in 2010, all the people in this thread who are crying for Penders’s head for the crime of, um, asking for the rights he is entitled to by law, would have totally been on his side.

To the anti-creator fanboys, the facts don't matter, the law doesn't matter, the ethics don't matter, and actual human beings do not matter. All that matters is that they get the comics they want.

They'll tell you differently, and they probably believe it -- after all, most people don't realize when they're rationalizing, and most of these are individual people opining on individual cases. By and large, the guy dumping on Penders is probably not the same guy dumping on the Kirbys is not the same guy dumping on the Siegels is not the same guy dumping on the Shusters is not the same guy dumping on Wolfman is not the same guy dumping on Friedrich is not the same guy dumping on Starlin (or Ditko or Gaiman or Moore or DeCarlo or whoever). If you're not the sort of person who follows these stories, who's seen this conversation play out dozens of times in different permutations, you don't see the pattern.

But there is a pattern. And the pattern is, there are always fanboys who care more about the product than about the human beings who created it. That's the long and short of it. The justifications may change from case to case, but the attitude is always the same: "Fuck that guy, I just want my comics."

That's it for my Penders coverage. But I'm sure we'll be right back here talking about exactly the same things the next time a comics creator has a dispute with a publisher.

Fanboys Miss the Point

The plan was that this would be my last Ken Penders post for awhile, because this is not the All Ken Penders All the Time blog. Sometimes it is the Long Rambling Post About the Past 20 Years of Web Design blog.

However, the post wound up running long, and had a nice natural break in the middle, so now it's going to be two posts. There will be at least one more Penders post after this one.

But while Ken Penders is the focus, these posts aren't just going to be about Ken Penders. I intend to make a few unflattering generalizations about anti-creator fanboys in a minute here, and you may be interested to read them even if you don't care about Penders, Archie, Sega, or Sonic. If you like my posts about creators' rights, this is one of them, and the next one will be too.

So what brought me back to Ken Penders, anyway?

Well, awhile back I was looking at my site stats, and found a referral from a DeviantArt post titled A Summary of ACP Vs. Ken Penders, posted in a group called Save Archie Sonic, which is dedicated to petitioning Archie Comics to bring back all the Penders-created characters that it wrote out of the series. It was a pretty old post by the time I saw it, but at any rate it flatteringly linked to my previous Penders coverage.

And the second comment down, by a guy named CMAugust, had this to say:

The rest of this guy's articles on the subject are great too, well worth reading. On another cool note, this is the same fan who got the first online letter printed in the comic, way back in issue 40.

Holy God, what a thing for somebody to remember after all these years.

Yes, ladies and gentlemen, there you have it: the most obscure and inconsequential piece of Sonic the Hedgehog trivia ever. And it's me.

CMAugust went on to say:

Oh yeah, and if you check out his stories about other comic book people tagged under "creators rights," you'll find that whenever there's a creator vs publisher court case, the fanboys will dump on the creator every time. Sad but true, most fans only care about whether their favorite characters are featured month after month and attack anyone who rocks the boat. No matter who it is.

This is a depressing but entirely accurate observation. I will be coming back to it in my next post.

The third reply down took rather a different and less coherent tack. Somebody posting as THEATOMBOMB035 wrote:

where do we stand? same as last time
Penders is a greedy prick who doesn't deserve the right to even be remembered in the Sonic world after what he is done
he is now a living reason why we exist and why we must stand as are own group of Freedom Fighters
Penders, you are a shame to Sonic fans everywhere

It's the third line that really got me. The part where he compared the fanboys -- the people calling the guy who created or co-created a raft of their favorite characters "a greedy prick" -- to the Freedom Fighters.

And this got me thinking about something I've thought of often before.

The fanboys in these stories -- the ones who insult Jack Kirby's family, or Jerry Siegel's family, or Joe Shuster's family, or Marv Wolfman, or Gary Friedrich, or Jim Starlin, or whoever -- are, invariably, fans of a certain type of fiction. Specifically, these are fans who are extremely passionate about stories where a ragtag band of underdogs strives against impossible odds to defeat an evil empire that is far bigger and more powerful than they are.

And they sure like those stories, but they really don't seem to understand them.

Here is a guy, right here, who looked at Sonic the Hedgehog -- the story of a scrappy band of Freedom Fighters squaring off against an evil empire to regain control of their homeland -- and then looked at Archie v Penders -- the story of a lone cartoonist squaring off against a multi-million-dollar corporation to regain control of his own work -- and thought that in this analogy, the people siding with Archie were the Freedom Fighters.

I just don't get it, man. I don't get how you can be so passionate about a work of fiction while simultaneously failing so utterly to understand its message even a little bit.

Speaking of utterly failing to understand a message, I also found my Penders coverage linked from a comments thread under a piece of fan art called Bunnie's Choice. A user named AlcyoneSong said,

yeah its just sad, because the whole comic has had a reboot due to Penders lawsuit.

And then he linked to my Ken Penders coverage.

My Ken Penders coverage which contains the following passages:

And it is important to remember, throughout this discussion, that while fanboys continue to misstate the basic facts of the case, Archie sued Ken Penders, not the other way around.

and

If Archie does permanently drop Penders's characters and cease reprinting his comics, make no mistake: that's out of spite, not legal obligation. That's not Archie being forced to stop using those works, it's Archie choosing not to use them so it doesn't have to pay Penders for them.

Emphasis in originals.

I mean, for fuck's sake, maybe actually read the thing you're linking to before you describe it.

There was a time in my life where I would probably have gone to the trouble of signing up for a DeviantArt account just so I could argue with year-old posts misstating the basic facts of the case and the content of my posts. Fortunately, I'm past that now, and content to merely criticize them in really long blog posts.

Work-for-Hire, Royalties, and Freelancing

In my previous post, I linked to a piece on Ken Penders written by TheAmazingSallyHogan, and I said that I had a few minor quibbles with it that I'd come back to. So here they are.

Ms. Hogan says this about work-for-hire law:

Under Work for Hire contracts, a creator is paid a flat fee for producing content. All artwork, stories, characters, plots, symbols, etc. become the property of the employer (or a third party, which would be SEGA in this example). Under Work For Hire, a creator does not receive further compensation/royalties if their work is reprinted, if their characters are reused due to popularity, or even if their work results in merchandise/mass media. This is not a salaried position – at any point a publisher can decide to simply stop asking a creator to submit work.

While that's true of Archie's work-for-hire agreements, it's not true of work-for-hire in general as Hogan suggests. It is entirely possible to have a work-for-hire agreement that does allow for royalties, or other profit-sharing arrangements; for example, the audiobooks I've recorded were all produced under work-for-hire agreements that only pay royalties, with no money upfront. Likewise, while the creators who produce work for Archie Comics are freelancers and not employees, it is possible (and indeed standard practice) for an employment agreement to include a work-for-hire clause.

And while Hogan correctly notes, here, that Ken was not an employee on salary, she incorrectly uses the word "employment" several times throughout the article to describe his work for Archie. But a job is not the same thing as employment. Ken was not an employee; he was a freelancer and Archie was his customer.

Hogan goes on to say:

These “no royalties” contracts are no longer the norm in the industry for creators working extensively on titles.

This is true (though the qualifier "extensively" is unnecessary); DC and Marvel both have royalty clauses in their work-for-hire contracts (Comic Book Resources has discussed both DC's current royalty policy and Marvel's). Archie is not the only comics publisher that does not pay royalties, but it is lagging behind the Big Two in terms of compensating its creators.

The point of all this is that all work-for-hire means is: Alice hires Bob to create something, under a contract which stipulates that for legal purposes, Alice is the creator.

That's it. That's what work-for-hire means.

How Alice pays Bob, whether Bob is Alice's employee or Alice is Bob's customer, and any other details of the arrangement between Alice and Bob are separate issues, and not determined by whether or not the work is for-hire. All work-for-hire determines is who is the legal creator of the work.

Some work-for-hire agreements pay a flat fee, some work-for-hire agreements pay royalties, some work-for-hire agreements are between a freelancer and a client, some are between an employee and an employer.

But in Archie's case, Hogan is correct: money upfront, no royalties; freelancers, not employees.

Go, Ken, Go! -- Part 6: Penders v Sega Dismissed

I'm going to talk about Ken Penders for a bit, because apparently somewhere along the line my blog became the Internet's foremost resource for information on Archie v Penders. And I never did get around to writing about the conclusion to the other suit, Penders v Sega et al, so I should probably start there.

To read my previous Ken Penders coverage, peruse the handy Ken Penders tag.

The gist: Archie forgets to make Ken Penders sign work-for-hire agreements prior to his work on the Sonic the Hedgehog comic, Penders asserts that he still owns or co-owns the copyrights to all that work and will be working on his own sequel, Archie sues him and writes all his characters out of the comic, fanboys flip out, Archie and Penders settle for undisclosed terms. And that's where I left off back in 2013.

Well, there were two lawsuits: Archie v Penders, where Archie sued Penders to assert that his work was for-hire and he held no ownership stake in it, and Penders v Sega et al, where Penders sued Sega and EA over Sonic Chronicles: The Dark Brotherhood, a game which featured characters similar to the Dark Legion he had created in the Knuckles the Echidna comic.

Last I talked about this, Penders v Sega was still awaiting resolution, but I learned recently that last year it was dismissed on a technicality.

I took a look at Ken Penders's messageboard a little while ago (I'll come back to that in a future post), and he linked to a Tumblr post by TheAmazingSallyHogan, citing it as an authoritative and scholarly rundown of the case.

I have a couple of minor, tangential quibbles with Ms. Hogan's piece, such as how she defines work-for-hire; I'll get to them in a later post. But they're not relevant to the specifics of the Penders case, which, near as I can tell, she has exactly right, and describes in great detail.

And as for the conclusion of the Sega case, here's what she has to say:

On September 26, 2011, Penders’ lawsuit against SEGA/Electronic arts was dismissed, with the Judge essentially telling Penders that he needed settle matters with Archie first, and then he could re-file. Penders re-filed on September 30, just four days later. The same Judge dismissed the case a second time, saying very firmly that Penders needed to settle matters with Archie before re-filing against SEGA/Electronic Arts.

[...]

In May 2012, Penders’ council appealed the dismissal of his case against SEGA and EA. Penders’ determination to have a case in progress against SEGA/Electronic Arts, instead of just waiting to re-file, was because there is a three year statute of limitations on US copyright claims – a legal time limit intended to make sure cases are tried while the evidence is fresh. Sonic Chronicles was released September 25, 2008, almost exactly three years earlier. Filing a new case later would mean he would lose the chance to sue SEGA for Sonic Chronicles’ sales, so Penders appealed the dismissal. The importance of these dates was not stated in his appeal, an omission that would later prove crucial.

[...]

On October 11, 2013, Penders’ appeal (concerning his case against SEGA/Electronic Arts) was heard. While the judges agreed that the timeline was highly relevant and that if the case was dismissed he would largely lose the ability to seek compensation for Sonic Chronicles, his previous lawyer had failed to state why the dates were important in the appeal, and thus the judges could not take that issue into consideration. Shortly after, the court rejected his appeal and upheld the dismissal. While he could re-file, Sonic Chronicles had been released September 2008. It was now well past three years later, putting essentially all sales outside of the three year statute of limitations window. However, any new usage of the characters introduced in that game (such as an appearance in the comic), could potentially lead to a lawsuit from Penders. Late October, Penders stated “this case may yet end up in the US Supreme Court if a resolution isn’t found prior to that”.

So there it is: due to a mistake in Penders's lawyer's legal filing, Penders v Sega was dismissed, and he missed the statute of limitations for collecting any of the money generated by Sonic Chronicles. No ruling, no settlement, no resolution. While I wouldn't be surprised to see some fanboys take the words "case dismissed" to mean that Penders's case against Sega was flimsy or lacking in some way, that is not what this dismissal means; the case was dismissed due to a mistake in filling out the paperwork, and no other reason.

I wouldn't expect to see Sega re-release Sonic Chronicles any time soon, as that would open them up to a new suit.

Penders's allusions to a Supreme Court case notwithstanding, this is most likely the end of it, though he's still got his own series coming at some point, whatever form it may take.

I noted before that a lot of the other writers and artists who worked on Sonic around the time Penders did could potentially file for their own copyrights (and that Scott Shaw already had). I haven't heard anything more about that. However, given how the Penders case went, I would expect Archie to quietly settle with any other creators who made similar claims, on similar terms, without suing them, and it's entirely possible this has already happened. It's one of those things we'll most likely never know.

Meanwhile, if you're interested in the case at all, I highly recommend that you read the entire piece by TheAmazingSallyHogan. It's as good and thorough a summary of the case as you'll find anywhere.

On Advertisements

Dear DC,

Here is a list of DC Comics I would have purchased today if they had not contained obnoxious half-page Twix ads:

  • Batman Beyond #1
  • Bat-Mite #1
  • Bizarro #1

Here is a list of DC comics I purchased today:

DC, I do not have a fancy marketing degree. However, I can offer you a marketing suggestion for free: if one team of marketers suggests making money by releasing new comics that appeal to a different audience from the core DC line (albeit, granted, still pretty much just made up of spinoffs of Batman and Superman comics), and another team of marketers suggests making money through finding a really irritating and distracting way of putting advertisements in your comics, perhaps you might consider rolling out those two ideas separately instead of simultaneously. This is what is known as "isolating the variables".

I would also suggest that, if I were one of the writers, artists, editors, or marketers who had gone to considerable effort to create and market a new and different comic book to a nontraditional audience, I would be pretty unhappy right now with the people in management who had made a decision that actively sabotaged the appeal of that comic book.

I do not wish to be negative or ungrateful here. I greatly appreciate your decision to convince me to keep the nine dollars I would have spent on those three comic books. I went nextdoor and spent that money on beer instead. I had a Four Peaks Kiltlifter and a New Belgium Slow Ride. They were very good beers, and at no point in my drinking experience did they interrupt me and try to convince me to buy Twix.

Kisses,

Thad