How A Feud Among Wolf-Kink Erotica FanFic Authors Demonstrates What The Copyright Office Got Wrong In Its DMCA Report

from the wrong-wrong-wrong dept

Last week, we wrote about one of the biggest, glaring flaws in the Copyright Office's long awaited report on the DMCA 512's safe harbors was its refusal to recognize how frequently it's abused to take down legitimate works. As if on cue, over the weekend, the NY Times has quite the story about a feud in (I kid you not), wolf-kink erotica fan fiction, that demonstrates how the DMCA is regularly abused to punish and silence people for reasons that have nothing to do with copyright.

The full NY Times article is worth reading, describing a still ongoing legal fight between two fanfic authors who wrote stories building on some apparently common tropes in the wolf-erotica fiction genre. One author sued another, but, as the article notes, all of the supposedly "copied" elements are common throughout the wider genre:

Then, in 2018, Ms. Cain heard about an up-and-coming fantasy writer with the pen name Zoey Ellis, who had published an erotic fantasy series with a premise that sounded awfully familiar. It featured an Alpha and Omega couple, and lots of lupine sex. The more Ms. Cain learned about “Myth of Omega” and its first installment, “Crave to Conquer,” the more outraged she became. In both books, Alpha men are overpowered by the scent of Omega heroines and take them hostage. In both books, the women try and fail to suppress their pheromones and give in to the urge to mate. In both books, the couples sniff, purr and growl; nest in den-like enclosures; neck-bite to leave “claim” marks; and experience something called “knotting,” involving a peculiar feature of the wolf phallus.

[....]

It’s hard to imagine that two writers could independently create such bizarrely specific fantasy scenarios. As it turns out, neither of them did. Both writers built their plots with common elements from a booming, fan-generated body of literature called the Omegaverse.

As the article goes on to note, this whole "Omegaverse" concept spun out of fanfiction based on the TV show "Supernatural." And then a bunch of common tropes emerged:

Some Omegaverse stories involve lycanthropes (werewolves), vampires, shape-shifters, dragons, space pirates, others feature regular humans. But virtually all Omegaverse couples engage in wolflike behavior. Alphas “rut” and Omegas go through heat cycles, releasing pheromones that drive Alphas into a lusty frenzy. One particular physiological quirk that’s ubiquitous in Omegaverse stories, called knotting, comes from a real feature of wolves’ penises, which swell during intercourse, causing the mating pair to remain physically bound to increase the chance of insemination.

Normally, in copyright law, this should mean that there is no infringement. Either you have the idea/expression dichotomy come into play (the same idea expressed differently is not infringing as the idea itself cannot be covered by copyright) or there's the concept of scenes a faire, in which a story in a particular genre needs those features to be a part of that genre.

However, even so, the DMCA has been weaponized here:

Ms. Cain urged Blushing Books to do something. The publisher sent copyright violation notices to more than half a dozen online retailers, alleging that Ms. Ellis’s story was “a copy” with scenes that were “almost identical to Addison Cain’s book.” Most of the outlets, including Barnes & Noble, iTunes, and Apple, removed Ms. Ellis’s work immediately.

See that? Merely by claiming infringement using the DMCA's 512 notice-and-takedown provisions, one author was able to literally delete a bunch of books from most major book stores. Doesn't that seem like a problem? The Copyright Office barely acknowledges it. But here it's turned into a massive fight.

In late April 2018, Ms. Ellis got an email from a reader who had ordered one of her books from Barnes & Noble, then learned that it wasn’t available anymore. She soon discovered that all of her Omegaverse books had disappeared from major stores, all because of a claim of copyright infringement from Ms. Cain and her publisher. Ms. Ellis found it bewildering.

“I couldn’t see how a story I had written using recognized tropes from a shared universe, to tell a story that was quite different than anything else out there commercially, could be targeted in that way,” Ms. Ellis said. “There are moments and scenarios that seem almost identical, but it’s a trope that can be found in hundreds of stories.”

While Ellis did file a counternotice, the Times says that online stores were incredibly slow to put the books back (some took months).

A lawyer for Ms. Ellis and Quill filed counter-notices to websites that had removed her books. Some took weeks to restore the titles; others took months. There was no way to recover the lost sales. “As a new author, I was building momentum, and that momentum was lost,” Ms. Ellis said. And she worried that the “plagiarist” label would permanently mar her reputation.

The author, Ellis, eventually sued over the takedown notice, claiming it was improper (and also that it was defamatory -- which, seems like a SLAPP suit on its own, unfortunately). However, the author accusing Ellis of infringement seems pretty big into SLAPPing as well:

Two years later, Ms. Cain and her publisher filed D.M.C.A. takedown requests against Ms. Ellis’s first two “Myth of Omega” books. Ms. Cain also asked her publisher to file an infringement notice against an Ellis novel that hadn’t even been released yet. “Book three needs to come down too. I don’t want her to make any more money off this series,” Ms. Cain wrote to Blushing Books in April, according to a court filing.

That's... not how any of this works. The NY Times says that Cain's publisher caved in and admitted there was no infringement and apparently paid up to settle with Ellis, but Cain has kept the case going. She should lose. By the way, if you want to dig into the details of the actual lawsuit, you can find the docket here. The NY Times does not appear to link to it.

But, as the article makes very, very clear, the DMCA's notice-and-takedown process has been weaponised repeatedly. If it's so obvious that it's happening in such a niche area as "wolf-kink erotica fan fiction," you know it's happening in many other places as well. It seems ridiculous that the Copyright Office felt it wasn't worth paying any attention to, and assuming that the only problems with DMCA 512 was that it didn't take down enough content fast enough.

Filed Under: addisson cain, censorship, copyright, copyright office, dmca, dmca 512, omegaverse, slapp, takedowns, wolf erotica, zoey ellis


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  • icon
    That One Guy (profile), 26 May 2020 @ 12:40pm

    '... you want me to explain what now?'

    That must have been a fun assignment, writing up an entire paragraph covering the various quirks and tidbits associated with a particular kink in detail.

    From the sounds of it both are pretty terrible people, more than happy to abuse the system for their own ends, but as examples go of how easy it is to abuse the law I'd say it serves nicely. When the current system already allows you to get several books from an author out of stores on nothing more than a claim, sometimes for months on end, the utter insanity of making the law even worse becomes all the clearer.

    reply to this | link to this | view in chronology ]

    • icon
      Samuel Abram (profile), 26 May 2020 @ 1:04pm

      Re: '... you want me to explain what now?'

      From the sounds of it both are pretty terrible people

      How is Zoey Ellis a terrible person? If anything, she got her books forced out of stores and her countersuits don't seem SLAPPy with the exception of the defamation claim but that pales in comparison with the hard-SLAPP that Addison (Ms. Cain's first name) Cain had placed upon Ellis just for using similar ideas with which Cain didn't even come up. This seems far more like "lost sales" than any illicit file-sharing suit because at the very least, in those file-sharing lawsuits, the copyright holders were either unwilling to sell or sold at an exorbitant price or too cumbersomely. With the case of Zoey Ellis, she was unable to sell, so potential sales were literally taken away from her.

      reply to this | link to this | view in chronology ]

      • icon
        Mike Masnick (profile), 26 May 2020 @ 1:17pm

        Re: Re: '... you want me to explain what now?'

        with the exception of the defamation claim

        That's a pretty big exception...

        I'd be fine if she had just filed a straight up 512(f) claim or for declaratory judgment of non-infringement. Tossing in a defamation claim... is a problem.

        reply to this | link to this | view in chronology ]

        • icon
          Samuel Abram (profile), 26 May 2020 @ 1:26pm

          Re: Re: Re: '... you want me to explain what now?'

          We'll agree to disagree about how awful it is (FWIW, I do think a defamation case is SLAPPy and therefore bad, but filing a gratuitous DMCA notice and settling after being sued yet continuing to file ©-infringement claims against unpublished books is a lot more vile, but this is a subjective matter, so I'll leave it there).

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 26 May 2020 @ 1:39pm

          Re: Re: Re: '... you want me to explain what now?'

          A public accusation of multiple counts of plagiarism (copying) is pretty damn defamatory (false factual claims, and definitely with malice if we want to go the public figure route). I don't think it is necessarily a good idea to resolve in court, but i think the big exception really isn't that big.

          Really, Ellis should just pump the story, reasonably, to get her lost traction (and maybe more) back. Not making a defamation claim would probably be a better look.

          reply to this | link to this | view in chronology ]

          • icon
            Samuel Abram (profile), 26 May 2020 @ 1:44pm

            Re: Re: Re: Re: '... you want me to explain what now?'

            A public accusation of multiple counts of plagiarism (copying) is pretty damn defamatory (false factual claims, and definitely with malice if we want to go the public figure route).

            Just a problem with that: When Cain called Ellis a plagiarist, she had to be lying intentionally. If Cain actually believed Ellis plagiarized her, then it's not defamation.

            reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 27 May 2020 @ 2:33am

          Re: Re: Re: '... you want me to explain what now?'

          "Tossing in a defamation claim... is a problem."

          Well, you answer a punch with a punch, and if someone takes a leak on you, you piss right back, i guess?

          The underlying problem is that copyright law is easy to abuse to a point which makes even the worst tort law exploits look tame in comparison. And on top of that it's so damn easy. If the proportional and measured response is harder to apply than the disproportionate and ridiculous tactic, and may have as good as or better chance of success then it's hardly strange that copyright cases rapidly devolve into a feces-slinging contest.

          Let's not forget this is an area of law where even the absolutely worst types of lawyers have to really work hard at fscking up before they're officially considered inept.

          reply to this | link to this | view in chronology ]

        • icon
          Bergman (profile), 27 May 2020 @ 7:09am

          Re: Re: Re: '... you want me to explain what now?'

          Falsely claiming that someone is a plagiarist is bad enough out in the greater world, but in the fanfiction community it's one of the most vile accusations to make.

          Merely being accused is enough to make the accusation fact in many people's minds, and they frequently don't care that there might be another side to it or that the accusation might be false. They trust their favored author, and that's that.

          That sort of reputational damage is EXACTLY what defamation claims are for - while defamation claims can be abused, this is not an abuse of them.

          reply to this | link to this | view in chronology ]

        • icon
          Toom1275 (profile), 27 May 2020 @ 9:08am

          Re: Re: Re: '... you want me to explain what now?'

          I recall reading from a lawyer that a plaintiff is supposed to put all their complaints against a defendant at the time into one lawsuit, as making a separate lawsuit for every claim looks more like harrassment.

          reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 26 May 2020 @ 1:20pm

        Re: Re: '... you want me to explain what now?'

        Ah, my bad, looks like I got the names mixed up and thought that the victim from the first bogus DMCA claim turned around and returned the favor, but re-reading it it looks like the original abuser of the law merely doubled-down. Not sure how I made that mistake, but mistake it was.

        Given that I retract my previous statement regarding 'both' and will re-frame it as one person who is a terrible person twice over, and one victim of theirs.

        reply to this | link to this | view in chronology ]

        • icon
          Samuel Abram (profile), 26 May 2020 @ 1:31pm

          Re: Re: Re: '... you want me to explain what now?'

          No worries! We're only human; we all make mistakes!

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 May 2020 @ 2:08am

          Re: Re: Re: '... you want me to explain what now?'

          That's how I read the story, but it didn't hold together with the final paragraph.

          I think the confusion can be traced back to phrasing like this:

          The author, Ellis, eventually sued over the takedown notice, claiming it was improper (and also that it was defamatory -- which, seems like a SLAPP suit on its own, unfortunately). However, the author accusing Ellis

          reply to this | link to this | view in chronology ]

      • icon
        aerinai (profile), 26 May 2020 @ 2:34pm

        Re: Re: '... you want me to explain what now?'

        So... why would this not be the PERFECT case to force some teeth to 512(f)? I think the defamation is a bit hard to prove, but the 512(f) should have been a slam dunk since it was removed and was blatantly NOT infringing.

        Of course... then you'd have lawyers debating the finer points of wolf-kink erotica in countless court rooms across the country when explaining the case-law... which is just an added bonus if you ask me.

        reply to this | link to this | view in chronology ]

        • icon
          Samuel Abram (profile), 26 May 2020 @ 4:31pm

          Re: Re: Re: '... you want me to explain what now?'

          So... why would this not be the PERFECT case to force some teeth to 512(f)? I think the defamation is a bit hard to prove, but the 512(f) should have been a slam dunk since it was removed and was blatantly NOT infringing.

          I didn't say otherwise. I did say that the defamation claim was SLAPPy, but I didn't say anything about 512(f), so I'll say it now: it would be great to put some teeth into 512(f), so I fully concur with you (and with Mike Masnick above).

          reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 26 May 2020 @ 12:54pm

    The ideal solution we want...

    ...is the one that causes more wolf-Kink erotica to be produced, on the premise (based on Sturgeon's Observation) the more we have, the more of it will actually be any good.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 May 2020 @ 7:33pm

      Re: The ideal solution we want...

      the more of it will actually be any good.

      ... but proportionately, the more important a curator will be. These days, "it escaped from the slush pile" is a historical reference.

      And after all, who wants to read lousy wolf-kink erotica?

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 27 May 2020 @ 2:19am

        "who wants to read lousy wolf-kink erotica?"

        One of the problems with esoteric kink ten years ago was the lack of content [available to any given reader] a problem helped by the distribution vector that is the internet.

        The thing is, we still need curators for mainstream books and cinema, let alone furryfic. Hollywood has demonstrated its capacity for spending huge wads of money on movies and still producing crap.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 May 2020 @ 12:56pm

    This looks like a classic case of OC Do Not Steal.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 26 May 2020 @ 1:37pm

    Tropes vs historical chords

    Unfortunately I have this feeling that the tropes in this article will be looked upon like a series of notes found in two pieces of music. Neither should stand, but lawyers will be lawyers and courts and jury's will be courts and jury's. When the details are put, out of context, to the test there will be to little to differentiate them and plenty to call them the same. Which leaves us with the first to publish the winner, even if there is some 17th century evidence of an actual former publisher.

    If I understand the article correctly though, there is prior art preceding each of these, and it would seem that there are some players missing from this game. Both the entities in this article could be smacked down by some or many of those other players (as in "this whole "Omegaverse" concept spun out of fanfiction based on the TV show "Supernatural." And then a bunch of common tropes emerged:"), if they were as picayune as Ms. Cain.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 May 2020 @ 3:01am

      Re: Tropes vs historical chords

      The prior art is more like a prior mountain of art. Omegaverses have been around since at least 2010, and there have been thousands of fics written with the same tropes. Just reading the basic premise of the books (Omegaverse/kidnapping/knotting) there are 13 right now on Archive of our Own, however, taking out the knotting since its often not tagged, with just omegaverse and kidnapping you have 74 fics.

      Now, this is all just within the F/M subgenre of omegaverse, because honestly the most surprising and most "unique" thing about these books is that they are not gay romance, since the VAST majority of omegaverse literature is M/M. Of the 12856 works on AO3, only 1894 are M/F. Take out the M/F and you have 54 works of a similar nature to Ms. Cain's, though many are more recent works This could potentially be Ms. Cain's influence since she claims to be the originator of M/F pairings in Omegaverse style books and that she set the tone which all other M/F works follow. However, this can be debunked since her first published work was in 2016 and there are 360 works containing at least some sort of M/F pairing which date before 2016, the earliest being in Feb 2012. And these are not short works. Some of them are longer than the published books. And this is just one fanworks site. There are thousands more on fanfic.net, Wattpad, and livejournal (thousands of works on livejournal have been lost/deleted over the years, and I know from personal experience there are several kidnapping Omegaverse works that disappeared from there over the years). The concept has even now spilled over into Japanese, Chinese, and Korean manga/manwha/manhua in both unofficial doujinshi and official works.

      So in short, I think the common tropes of the genre existed long before anyone was publishing works officially, so it would be difficult to say any "missing players" would have more grounds to smack down the authors.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 May 2020 @ 3:20am

        Re: Re: Tropes vs historical chords

        I actually made a slight error. There are far more than 12856 works on AO3. I only looked for Omegverse which is a specific tag. Another tag often used instead is Alpha/Beta/Omega dynamics. Using that tag and excluding any tagged Omegaverse, you have an additional 10678 works that are F/M tagged, the earliest of which is from 2011. When you include the other two main tropes, you get 79 works tagged with kidnapping/knotting, with 10 pre-dated before 2016. It's convoluted since many include multiple relationships, but there is at least one fic over 48,000 words which is exclusively F/M with all those tropes. I read through the listed comparison from the lawsuit which you can find here

        https://bookriot.com/2019/07/18/omegaverse-plagiarism-lawsuit/

        and absolutely none of the listed comparisons cannot be found in a prior work. I mean, honestly, a lot of them are EXPECTED now in A/B/O or Omegaverse fandom fics. Ms. Cain certainly did not set the standard, and just because she may be early on the M/F side, does not mean her fic couldn't be a carbon copy of a M/M fic if you just switched the genders.

        reply to this | link to this | view in chronology ]

        • identicon
          teka, 27 May 2020 @ 10:29am

          Re: Re: Re: Tropes vs historical chords

          Thank you for putting in the work to get the hard facts.
          You dug out information and slapped it in people's faces until they accepted the truth.
          You.. uh.. filled their nostrils with the.. heady musk of... um.. numbers.

          nevermind, I'll stop here.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 May 2020 @ 1:53pm

    How exactly is filing a defamation claim against an allegedly defaming claim that an author committed copyright violation when they allegedly didn't problematic?

    Not only does the takedown directly stop the sale of her work, but the claim could still affect public perception of her and reduce sales she might otherwise have made. That seems like a fair reason to make a defamation claim. We lament the lack of teeth for filing false DMCA complaints, but it seems like a defamation claim is one of the few options to punish abusers of the process (while also seeming like a valid action by itself).

    reply to this | link to this | view in chronology ]

  • icon
    mvario (profile), 26 May 2020 @ 2:22pm

    reply to this | link to this | view in chronology ]

  • icon
    Tim R (profile), 26 May 2020 @ 4:39pm

    That's... not how any of this works...

    That should definitely be on the next series of Techdirt shirts.

    reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 26 May 2020 @ 4:56pm

    My prediction...

    Now that the whole thing has hit the news, the producers/copyright holders of the original TV show will start suing/taking down all of it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 May 2020 @ 6:54pm

    It seems ridiculous that the Copyright Office felt it wasn't worth paying any attention to

    Well... not really. Idealistically, the Copyright Office would love to say everything gets the highest level of copyright protection, but pragmatically that's just not feasible from an enforcement perspective. So some arbitrary, nebulous metric of "worth copyright protection" is used. We've seen performance rights organizations use it all the time. Apparently they can't be arsed to pay anyone if they're not within the 10% of most popular musicians.

    The idea isn't exactly foreign to the Techdirt trolls, either. John Smith (in his MyNameHere persona) and Tero Pulkinnen have long since opined that copyright should be a mechanism to determine what works are good enough to stay around. Ol' Jhon boi's claimed on multiple occasions that the system of YouTube where everyone is a publisher is bad because it means you get "more crap". Which doesn't make sense, you'd think, because under current rules, which YouTube has nothing to do with, everything already gets copyright protection - but John Smith has never been keen on making sense to begin with.

    reply to this | link to this | view in chronology ]


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