“I don’t know AO3” is the most accurate thing you just said. They do, in fact have a legal team specifically for dealing with exactly this.
Additionally, when I said fanfiction falls under “fair use” I wasn’t just saying it was fair game. The USA (which is where this matters because that’s where Anne was and where I’m pretty sure AO3 is) has a doctrine within copyright law that allows limited use of copyrighted material without having to acquire permission from the copyright holder. Fair Use is used as a defense to copyright infringement claims on some things that might otherwise be considered infringement- like fanfiction.
And it’s even ABLE to be used as a defense wrt fanfiction because one of the things used to defend fanfiction is that it is transformative/derivative.
Works of fanfiction are more likely to constitute fair use if they are “transformative” with respect to the original work, if they are non-commercial, if they appropriate relatively little of the original work, and/or if they do not tend to detract from the potential market for or value of the original work.
Which is why being not-for-profit isn’t, as you seem to think, not important. It’s actually quite literally one of the backbones of why fanfiction is typically considered fair use and able to be produced and shared publicly without actually breaking copyright laws.
As for the AO3 stuff, there’s an entire article on Wikipedia with more and more accurate explanations about what happened and why, but here’s an important excerpt of it, with bold added by me for the deeply relevant bits:
[In 2007], a group of fans who engage in creating fan works and are part of the larger fan community founded the Organization for Transformative Works (OTW).[37] OTW has since advocated the legitimacy of fan fiction due its transformative nature. OTW’s position is that fan fiction and other fan labor products constitute copyright fair use under 17 U.S.C. § 107 because they add “new meaning and messages to the original” work,[38] and thus fall under the exemption to U.S. copyright law the Supreme Court defined in Campbell[39] and which was later revisited and followed in Suntrust.[40] OTW’s vision includes seeing “all fannish works recognized as legal and transformative and … accepted as a legitimate creative activity.”[41] Toward this end OTW works to educate fan writers and published writers about copyright laws, particularly the open legal questions around fan fiction and other fan works.
OTW also maintains its own fan fiction archive, the Archive of Our Own, commonly called AO3. All fan fiction on the site is recognized as non-profit derivative works.[42]
It’s not that AO3 is “unresponsive” to DMCA/copyright notifications. What I meant was that the org that runs AO3, the OTW, is willing and ready, legally, to go to bat for fandom and for the rights of fanfiction authors to produce and publicly share fanfiction without profit (and are actually even working to change copyright laws to specifically protect fanfiction authors). If you’re following the rules AO3 set forth and someone wants to come for something you posted on AO3, they will almost certainly have to go through AO3’s legal dept, and AO3 is ready for them. Because the OTW knows that when someone comes for one of us, they come for all of us.
So… as long as we sticking to the rules of fair use, CAN someone try to come for us on AO3? Enngh. Well, maybe you’re right, they can try, I suppose- if they want an expensive headache that is very likely to go nowhere… but I don’t think even the rat has crossed that boundary.
And as a last point, I just want to reiterate: the majority of people that have waited to post, waited out of respect for Anne’s historical stance or out of a valid historical fear that has not applied in a while anyway. Anne actually reversed her stance from trying to disallow fanfiction to saying what amounts to “I was afraid of it a long time ago, and I still don’t understand it now, but you do you.” So like, just on that alone, I doubt the estate would do anything in the first place.
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