Not everyone associated with Against Monopoly is a Libertarian. It is comprised of a diverse group of voices who find common cause on the broad issue of IP. Stephan Kinsella is a leading voice of the anti-IP Libertarians, and he contributes much to Against Monopoly, but its still comprised of people with diverse beliefs on other issues.
The only thing that can be said is that the IP debate does not fall neatly into the traditional ideological/political spectrum that has shaped debates in the U.S. in recent decades. However, the debate over IP still remains a debate over how to define fundamental concepts of rights and freedoms, which is why it remains so contentious when a large philosophical chasm remains between the two sides.
It seemed to rule on First Amendment issues, which it got wrong in my (correct) opinion.
Though I wonder if there still might be room to continue a challenge based on either the Contracts clause or Takings clause of the constitution.
The Takings clause argument might be a two-edged sword in this instance, since it might inadvertently encourage courts to accept the false analogy between IP and real property, but it is still a long-shot legal avenue to consider in trying to overturn this turd of a ruling.
Blog comments are admittedly a more cumbersome form of communication than many realize. It seems to encourage quick language shorthand styles as your initial thoughts spill out, but ends up requiring more exacting precision of words in order to properly clarify one's point.
If the author of work creative work "X" allows fans to create fan fiction based on "X", then the author would certainly retain the legal ability to prevent film adaptations based on "X" if he/she wanted to. But that is not what I took to be your point.
You are (or seem to be) suggesting that if the courts were to recognize a fair use right to create unauthorized fan fiction based on "X" (without the author's permission), then the court could still prevent unauthorized film adaptations based on "X" by denying similar fair use protections simply and purely because it is a film (versus a written work). This is a false legal assertion.
Fair use rights intersect with First Amendment concerns. In this respect, the courts do not "value" print works more than film works and vice versa. They will simply analyse if it is a "derivative" work or not, and then apply copyright law principles to it.
I happen to be a lawyer, but I'll admit its irrelevant since anyone can debate copyright law if they simply read up on it (you don't need a law license to do so, and I encourage you to continue to do so).
With that said, your analysis is incorrect. Copyright law (both in its formal written terms as well as case law) clearly gives an author exclusive right over "derivative works" - this includes all sequels in all mediums based on the original work (film, tv, sculptures, literature, etc.). If I write a book on "The Life of Character X". Then I have control over who gets to make a movie based on "The Life of Character X" or who gets to write "The Further Adventures of Character X".
Even if I choose not to make a film adaptation of my work, such a film would still be "competing" with my original work according to long held copyright rulings and precepts.
Again, this all sucks since current copyright law sucks. But that is objectively the way copyright law works. You are respectively mistaken.
Most Fan Fiction Constitutes A Form Of "Derivative Work" Under Our Ridiculous Copyright Laws
I'm in complete agreement that fan fiction SHOULD be allowed. Mike is also correct to point out that R.R. Martin is simply wrong on certain points such as confusing trademark law concepts with copyright law.
But here is the ultimate problem with the overall analysis by some from the legal perspective (and why most fan fiction IS a copyright violation under current law - even though it shouldn't be from a policy perspective): If you allow fan fiction in one medium (i.e., literature and comics), then there is no real justification for not allowing it in all mediums (i.e., film, television series, etc.).
In other words, if you allow fan fiction for J.K. Rollings' characters in the form of books, then there should be nothing to prevent you from making unauthorized Harry Potter movies to compete with those that currently exist. Same with James Bond, etc. Yet if you were to try to do so, you would certainly be (successfully) sued by Sony Studios, along with the estates of Ian Flemming and (producer) Albert "Cubby" Broccoli.
Ultimately, fan fiction cannot be distinguished from any other "derivative work" or sequels that copyright owners have exclusive rights to. Copyright law allows people to prevent the creation of derivative works. That's not the way it should be, but that is the way it currently is.
The real problem is the fact that copyright law grants monopolies over "derivative works" in the first place - thus diluting (and arguably even obliterating) the notion that copyright shouldn't extend to "ideas", only the "fixed expression" of ideas.
An exception does indeed exist for "parody", but the legal (and admittedly vague) concept of parody as enforced by the courts is more narrow than many (understandably) want to believe here.
The mere fact that an unauthorized work "comments" on a previous work does not make it parody (or fair use). In a sense, ALL derivative works and sequels comment on the first underlying copyrighted work at some level. In "Casino Royale", when James Bond is asked if he wants his martini "shaken or stirred" and he responds by saying "Does it look like I give a damn?", this of course is "commenting" on all the previous Bond films which built up the "shaken, not stirred" mantra. This doesn't mean that "Casino Royale" is a "parody". If I had wanted to make that film on my own as a work of "fan fiction" (before Hollywood actually made it on their own), I still would have had to secure the rights from Sony, Flemming, et al. in order to avoid copyright liability.
It all sucks. It shouldn't be that way. But that's the way it is.
I'm in total moral support with what Mike and others are advocating here. But I should caution against conflating policy desires with objective legal realities.
It seems to me that the only fair solution is a radical overhaul of how copyright law treats the overall issue of "derivative works" - not to carve out a narrow exception for written "fan fiction" in terms of what should be protected speech.
Summary Judgement vs. The Right of Juries To Decide
Anonymous Coward -
Regarding your post at Apr. 2, 9:44am:
To quote the decision itself,
"Summary judgment is appropriate if 'there is no genuine issue as to any material fact and . . . the movant is entitled to a judgment as a matter of law.' Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)...Whether an invention would have been obvious at the time the invention was made is a question of law, which we review de novo, based on underlying factual determinations, which we review for clear error, Takeda Chem. Indus., Ltd. v. Alphapharm Pty., Ltd., 492 F.3d 1350, 1355 (Fed. Cir. 2007), unless, as is the case here, no material facts are in dispute."
Let's leave aside my personal belief that all reasonable people would have to conclude that this 'invention' was obvious. That does not change the fact that courts/judges have ALWAYS decided questions of "obviousness" as a matter of law and not given the question to the jury.
Now - you can reasonably argue that this has been a mistake all along. Even though there are no "material facts in dispute" in this case, there is still a value judgment to be made as to how undisputed facts are to be applied to the law in the case of deciding what is "obvious". In that sense, perhaps a jury should be allowed to decide.
But if that is the case, then this reasoning must be applied to ALL such questions in IP law - particularly the question of what constitutes "fair use".
As I'm sure you are aware, judges don't allow juries to decide issues of fair use, despite its very flexible nature that allows for value judgments to be made. They decide fair use themselves through summary judgement. Again, this is the way it has always been (at least for as long as I can recall).
If judges allowed juries to start ruling on fair use questions, the entire IP industry would shit their collective pants because they know that common notions of "fair use" are far broader than what most judges currently allow for.
So while I sympathize with the general idea that juries should be fare more involved with IP law questions than the system currently allows for, that does not change the fact that long standing precedent has been allowing judges to make these decisions for years. As a result, the criticisms of the dissenting judge are well warranted.
As a final side note, it is interesting to observe that the dissenting judge doesn't cite a single case in his own decision to try and back up his argument that such matters are a proper question for a jury.
I have a great business model wherein I employ slave labor to undercut the prices of my competition. A competitor sued me on behalf of my slaves - claiming violations of the the 14th Amendment and other related civil rights. The judge allowed me to continue this operation under the "cheap goods" doctrine, but because he had to "balance these interests" with Constitutional considerations, he limited my employee operations to just 2 days of indentured servitude before I had to capture new slaves and start the process over again.
Good thing that courts are in place to uphold these business models, rather than people's so-called "rights".