Reminder that, as far as I’ve been able to track down (and I’ve been looking), there has never been a lawsuit over free fanfiction.
There’ve been a lot of C&D orders, plus the Chelsea Quinn Yarbro legal settlement (which didn’t involve going to court; the lawyer demanded stuff and the fans caved because they didn’t think they could fight it). There are takedown notices. There are a lot of archive website, and web host platforms, that decline to host content that an author/publisher claims is infringing.
But none of that has been found guilty of copyright infringement in court. Nobody’s sued a fanfic writer for copyright infringement. Not even Disney.
And the OTW knows that. Knows exactly what legal stance they’re taking when they refuse to disallow fic because an author doesn’t like it. Knows what the copyright cases for profit-based works have been - Suntrust v. Houghton Mifflin, Campbell v. Acuff-Rose, others… they know that, when you combine the concept of parody (the legal term, not the casual meaning of “funny mockery”) and the utter lack of profit, a copyright holder’s case would be very thin indeed.
A Harry/Draco story runs solidly into the legal issues of Suntrust: this is a story the original author would never write, appealing to readers who aren’t reading it instead of Rowling’s works (because if you don’t know Rowling’s works, you may not understand the characters), with fictional elements that comment on the gaps and world structure of the original. RPF is even more protected - Hustler v. Fallwell had a SCOTUS ruling that incest porn about Fallwell was protected speech since Falwell was a public figure and the parody could not have been reasonably considered believable.
“Next episode in the series” fanfic might be infringing; “Avengers Orgy Tower OT8″ is better protected. “My date with the lead singer” might be infringing (on publicity rights, not copyright) but “the band is actually werewolves and I’m the alpha female who bonded with all of them” is implausible enough to be free speech.
Rice (and the other takedown authors) managed to stifle fic about their works through bullying intimidation tactics, not a solid legal foundation. They counted on fic authors and website hosts not being copyright law experts, AND not having the money to challenge a suit if one is filed, even if there’s no way it could win against any kind of defense.
Part of why the OTW was created, was to end those tactics. To say to authors, publishers, production companies: If you think fanfic is actually illegal, bring on your lawyers and let’s get a court to actually make a ruling.
10+ years, and not a damn one of them has made a move.
Disney’s done takedown notices over the Baby Yoda gifs… but nothing about the fanfic at AO3.
D’you think Abrams is happy with all the FinnPoe fic and memes? That he wouldn’t shut it down if he had any legal way to make it stop?
We’re on solid ground at AO3. We just needed a host that wouldn’t cave to the pressure of “[author] doesn’t approve of fanfic; remove it or else.”