• OTW Fannews: IP From New to Old

    By Claudia Rebaza on Neděle, 9 November 2014 - 5:01 odpoledne
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    • A post at JD Supra focused on the way fair use is being seen in U.S. courts following a decision in Fox News Network, LLC v. TVEyes, Inc. "More broadly, decisions like TVEyes suggest that courts are moving away from viewing fair use as a narrowly-drawn exception to copyright holders’ exclusive rights in their works, to the view that fair use promotes the creation of transformative works and thus serves one of the goals of copyright law itself. The TVEyes opinion, which essentially presumed transformativeness of the work at the outset of the fair use analysis, suggests that the trend toward this broader view of the role of fair use continues to gain traction in the federal courts."
    • OTW legal staffer Heidi Tandy reported on a lawsuit against LiveJournal (LJ) that was thrown out of court. The company Marvix claimed copyright infringement when its photos were posted on the LJ community OhNoTheyDidnt. But Marvix failed to first file a DMCA takedown request, moving immediately to a lawsuit. "LiveJournal has done other sites, platforms, communities, fandomers, news sites and forums a great service by seeing this lawsuit through. Mavrix has a pattern of using a threat that sites owe it hundreds of thousands in damages if one of their users - or even they - post a single photograph owned by one of Mavrix's paparazzi."
    • In a column on intellectual property in India, Zoya Nafis wrote about trademark and fanfiction. "Intellectual Property Rights are granted with an objective that they shall promote innovation and encourage creators to create more. They act as an incentive to create the work. They should never be used to impede innovation. Fan Fictions are creations by amateur creators who if given opportunity might create something great in future; therefore a lenient and balanced approach must be taken towards them."
    • The copyright education project CopyMe released a third episode, focusing on the history of how copyright came to be. "On the one hand, history shows us that copyright was designed for control more than anything else and that the state got away with this for over two centuries. On the other hand, businesses always feared new technology and lobbied for state protection, with arguments about authors’ safety. These two sides have always lurked in copyright’s underbelly and, over the course of three more centuries, managed to erode all the public good that copyright was primarily designed to promote." (Subtitles available).

    What cases involving copyright and fandom have you seen? Write about them in Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Files Petitions on Behalf of Fan Video Makers

    By Claudia Rebaza on Pondělí, 3 November 2014 - 10:02 odpoledne
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    Banner by Erin of a spotlight on an OTW logo with the words 'Spotlight on Legal Issues'

    The OTW, together with the Electronic Frontier Foundation ("EFF"), filed two exemption requests (available in PDF) with the U.S. Copyright Office today. The petitions seek renewal of the exemptions that the OTW helped secure in 2009 and 2012, which permit vidders to break encryption on audiovisual content provided via DVDs and online distribution services for the purpose of making noncommercial, transformative vids. In addition to seeking renewal of those exemptions, the OTW's petition also seeks expansion of the exemptions to include Blu-Ray discs.

    The petitions argue, among other things, that these exemptions are necessary to protect lawful free expression. The Copyright Office acknowledged in 2010 and 2012 that many vids are protected by the fair use doctrine and do not infringe copyright. These exemptions are necessary to permit vidders to create lawful transformative works without unintentionally breaking the law, to make works that are high-quality and timely, and to resist DMCA "takedown" notices for their lawful works.

    We are grateful to the many fans who submitted information that helped us write these initial petitions. As the review process continues, we will undoubtedly be asking for even more examples and stories to support our arguments.

    These petitions are part of an every-three-year review scheme put in place by the Library of Congress and the Copyright Office. In each round of reviews, proponents of exemptions like these must defend the exemptions they have previously received, and advocate for any expansions merited by technological development. As the EFF states in its press release regarding these petitions, "Congress created this system to act as a 'safety valve' to mitigate the harms the law has caused to legitimate, non-infringing uses of copyrighted materials. But that safety valve is hugely flawed. The every-three-year procedure is burdensome and confusing, with high hurdles to success." The OTW will continue to represent the interests of vidders in this ongoing process.

    To see other petitions filed in this process, see the EFF's page collecting petitions.

  • Calling all fan video makers! Tell us about your work!

    By Janita Burgess on Úterý, 7 October 2014 - 5:17 odpoledne
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    OTW Announcement Banner by Diane

    The OTW's Fan Video & Multimedia Committee and Legal Committee are once again working to petition for a DMCA exemption granting vidders, AMV makers, and other creators of noncommercial remix video the right to break copy protection on media files. In 2010, we won the right to rip DVDs; in 2012, we got that exemption renewed and expanded to include digital downloads (iTunes, Amazon Unbox, etc.).

    This year, we'll not only be pushing to renew the exemptions we've already won in the last two rounds of DMCA rulemaking, but also pushing to add Blu-Ray and streaming services.

    And we need your help to do it! If you make or watch vids, AMVs, or other forms of fan video, we need you to tell us:

    1. Why making fan videos is a transformative and creative act;
    2. Why video makers need high-quality source;
    3. Why video makers need to be able to manipulate source (change speed and color, add effects, etc.);
    4. Why video makers need fast access to source (such as using iTunes downloads rather than waiting for DVDs);
    5. Why video makers need to be able to use Blu-Ray;
    6. Why video makers need to be able to use streaming sources; and
    7. Anything else you think we should keep in mind as we work on the exemption proposal.

    We're also looking for vids that we should add to the Fair Use Test Suite, and we'd love to have your suggestions.

    If you have thoughts about any or all of these topics, please send them by e-mail to the Legal Committee at legal at transformativeworks dot org or the Fan Video & Multimedia Committee at fanvideo-chair at transformativeworks dot org. You don't have to use your real name; we can use your name or pseudonym or describe you anonymously as "a vidder" or "a fan video artist."

    The DMCA is U.S. copyright law and only directly affects U.S. vidders, but it does potentially have ripple effects outside the U.S.: Strong DMCA exemptions help send the message that fan creativity should be protected everywhere. With that in mind, please feel free to send your thoughts even if you don't live in the U.S.

    Also, please help us signal-boost! This info is being posted to all the OTW and AO3 News sites; if you can think of other places the OTW should post, please let us know—and if you can spread the word in your own networks, on streaming sites, etc., please do.

  • OTW files amicus brief in Capitol Records vs Vimeo

    By Janita Burgess on Čtvrtek, 31 July 2014 - 5:11 odpoledne
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    OTW Spotlight on Legal

    Together with a number of allies, OTW's Legal Committee filed an amicus brief Wednesday in the U.S. Second Circuit Court of Appeals in the case of Capitol Records v. Vimeo. The case began when the record labels sued Vimeo, alleging that a number of fanworks hosted on Vimeo's site infringed the record companies' copyrights.

    At this stage of the case, the question before the court has to do with the Digital Millennium Copyright Act (DMCA)'s "safe harbor" provision, which protects content hosts like Vimeo (and the AO3) from copyright liability for material posted by their users. Specifically, the court is addressing what constitutes "red flag" knowledge of infringing material that would require the hosting service to remove the material even without receiving a takedown notice. In the brief, the OTW and its allies argue, among other things, that the standard set by the trial court would place unreasonably high demands on sites that host user generated content and would chill valuable speech protected by the fair use doctrine.

    One of our partners, the EFF, has posted about the filing, stating "The safe harbors are critical to the Internet's success as a forum for innovative art, discussion, and expression of all kinds, forestalling crippling litigation that would force most websites to close their doors. Yet the district court created new liability, contrary to the law and the intent of Congress."

    Our joint brief highlights the value of fanworks and remix creativity, and explains how increasing liability for content hosts would chill creativity and undermine the objectives of the DMCA's safe harbor provisions, saying:

    "The burden would be especially significant for the many small and nonprofit platforms that host remix videos. Such videos often include music from a variety of sources, but the staff that run these sites won’t necessarily be music specialists able to determine when a given track was recorded. Indeed, many remix videos include multiple tracks, making the task still more challenging. The effect of this significantly increased cost and burden, combined with the accompanying uncertainty about potential liability for pre-1972 audio, would almost inevitably be to chill investment in or development of innovative services that might include such content. That chill, in turn, will inevitably stifle the creative works that depend on those services to reach an audience."

    We will keep fans informed on future developments in this case.

  • OTW Legal Files Amicus Brief in Garcia v. Google

    By Claudia Rebaza on Neděle, 20 April 2014 - 5:41 odpoledne
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    Banner by Erin of a spotlight on an OTW logo with the words 'Spotlight on Legal Issues'

    In our continuing effort to protect against online censorship that would harm fans, last week, the OTW filed an amicus brief in the case of Garcia v. Google. The case involves the scope and application of the safe harbor provisions of the DMCA and section 230 of the Communications Decency Act, which together prevent content hosts -- like YouTube, the AO3, and many others -- from being liable for what their users post.

    This case is partly a classic example of "bad facts make bad law," since the plaintiff -- an actress tricked into taking part in the film Innocence of Muslims -- has good reason to want the film taken down. But in response to her request, the court not only applied a tortured interpretation of copyright law (an issue addressed in many other briefs filed with the court at the same time), but also ignored important anti-censorship "safe harbor" laws.

    The court forced Google to not only to take the film down, but also to ensure that it is never re-posted. In so ruling, the court ignored the provisions that protect content hosts from having to "police" what their users post. These safe harbors exist to prevent online censorship, and they are important to fans. Just about every site that hosts fan content depends on them. Just imagine if every allegedly infringing or defamatory fanwork led to a lawsuit, or if fan sites were required to monitor their archives to make sure no one ever posted objectionable material: many of the sites fans rely on wouldn't be able to afford to operate. That's the sort of thing these laws are designed to prevent.

    For that reason, the OTW, along with Floor64 (the operator of TechDirt), filed a brief asking the court to reconsider its decision with an eye to the fact that although the decision may create a good factual result in this particular case, it makes terrible law that will harm freedom of expression on the Internet. As Techdirt explained in its post about the brief, "There is a reason why Congress was so intent on providing safe harbors, recognizing the incentives for broad censorship when you blame service providers for the actions of their users. Judge Kozinski appears to have ignored nearly all of Congress' intent in his ruling, and we're hopeful that (among the many other reasons why his ruling should be reviewed), the rest of the 9th Circuit will recognize that the original ruling has serious First Amendment implications, beyond just the basic copyright questions."

    For those interested in reading more, you can find this latest brief on our Legal Advocacy page along with past filings.

  • OTW Fannews: Numbers of fanworks

    By Claudia Rebaza on Neděle, 26 January 2014 - 8:42 odpoledne
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    Banner by Erin of a close up of Harry Potter with his lightning scar turned into a rising line on a graph

    • A study of primarily gaming-related fanworks was posted on Gamasutra. The study "used empirical methods to investigate how contemporary user-generated content ('UGC') platforms and practices related to United States copyright law. The motivation for the project was the relative absence of data about the copyright status of most UGC and competing claims about UGC’s predominant nature."
    • The researchers interviewed both fans and game creators and found that "There is, apparently, not very much 'groupthink' among our industry respondents about questions of IP, fair use, and user-generated content." Many also really enjoyed User Generated Content. However, industry pros creating fanworks prior to becoming paid assumed that most game players are not like them. "25% agreed that 'UGC is appealing only to a minority of gamers.'" In fact, when gamers were asked "if they had ever created new content related to video games...70% stated that they had. They reported that they spent, on average, about 5 hours per week creating content related to video games."
    • The researchers compared activity by gamers to that of fans of other mediums, specifically Harry Potter story activity on Mugglenet and "Though we were tempted to code for works that were parodies or that somehow altered the meaning of Harry Potter, we doubted that there would or should be a clear dividing line between infringing and non-infringing fan fiction practices."
    • Researchers also "asked respondents about the fair use doctrine in the United States. 91% were aware of the doctrine. We asked those respondents if they thought fair use rights should be broaden[sic], narrowed, or if they should remain the same...64% thought it should be broadened, 26% said it should be narrowed, and 10% had no opinion."
    • Wattpad also released numbers about fan activity. "The Wattpad community spent 87 million minutes each day reading and sharing stories from their phones and tablets last year. Readers also created more than 4.4 million story covers and YouTube trailers to support their favorite stories and writers on Wattpad." The site considers mobile access vital to their success, as "85 percent of time spent on Wattpad is via a phone or tablet. Half of the writers on Wattpad have written a story from a phone or tablet."

    What fandom studies have you seen? Write about them on Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a roundup post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Fannews: Exploring fair use

    By Claudia Rebaza on Pátek, 3 January 2014 - 8:40 odpoledne
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    Banner by Lisa of a spraypainted wall reading 'Remix'

    • A recent legal spat over the repurposing of a Beastie Boys song brought discussions of fair use to the fore. xojane claimed "The Beastie Boys versus GoldieBlox battle cuts close to my heart because I love the Beastie Boys, and I love companies developing anti-sexist takes on products, but I also love fair use. And in this particular instance, the Beastie Boys are wrong. The celebration of their fight against GoldieBlox is missing a key component of the situation here, which is that the GoldieBlox video, which perhaps not ethically defensible given the expressed wishes of Adam Yauch, could very well be perfectly legal. And you should want it to be, because fair use and transformative works lie at the heart of so much of art, culture, criticism, and society."
    • On the Media's P.J. Vogt cited similar issues in his discussion. "[I]f you side with Goldieblox, you probably see a hypocrisy here. The Beastie Boys built a career on sampling. How can they then turn around and tell Goldieblox their own work can only be recontextualized with permission?" But he sided with the band until "I spoke to an actual expert, Julie Ahrens, Director of Copyright & Fair Use at Stanford’s Center for Internet & Society. She convinced me that Goldieblox is probably in the right here...After all, while the Goldieblox ad is, in fact, an ad, it’s also a legitimate piece of cultural criticism."
    • Reap Magazine also tackled the issue of transformative works and came to a similar conclusion. "What fans create in modern transformative works of art today is really an extension of what artists like Duchamp and Warhol did in the past. And as much as some studio producers, artists and writers would like to control spectator reaction from a legal standpoint, that just is not realistic."

    What fair use discussions do you have to share? Write about them on Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a roundup post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Fannews: Playfulness and IP

    By Claudia Rebaza on Čtvrtek, 14 November 2013 - 5:28 odpoledne
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    Banner by Erin of Lawrence Lessig holding a light saber by the logo for the EFF, facing off against the logo of Liberation holding up cash and a DMCA notice.

    • The University of Buffalo hosted a lecture by intellectual property scholar Madhavi Sunder titled Learning by Doing. Sunder says. “'Copyright owners have tolerated much fan activity on the theory that lawsuits can turn fans’ love to hate. But the emergence of an ‘experience economy’ may lead some owners of cultural property to reconsider their laissez-faire attitude toward play'...But, Sunder says, that impulse raises caution flags about 'the commoditization of fundamental human experiences and play.'...And because IP law is 'fundamentally about promoting knowledge and learning,' Sunder says, lawyers need to be careful to protect that goal, even when they are asked to help corporations turn such play into a commodity to be bought and sold.'"
    • One place rife with automated takedowns, which are particularly likely to be issued indiscriminately, is YouTube. Fortunately, as NPR put in its story title Record Label Picks Copyright Fight — With The Wrong Guy, IP scholar Lawrence Lessig had a video of a lecture taken down due to a small music clip within it. "At first, YouTube took it down. But being a copyright attorney, Lessig knew his rights. He was entitled to use these clips in a lecture under a legal doctrine known as fair use...Liberation Music eventually backed down. But Lessig decided to invoke another part of the copyright law, 'which basically polices bad-faith lawsuits,' he says — threats made fraudulently or without proper basis. Lessig is suing Liberation Music because he wants labels to stop relying on automated systems to send out takedown notices."
    • As vidders well know, hosting sites for their fanworks tend to be more limited than those for other media, and they have often booted fan content entirely when the sites changes their marketing focus. The latest site to evict fan videos is, which deleted content within the past week. The OTW has some tips about alternatives for video makers and the top pick is Critical Commons. Though academic in nature, they welcome fanworks, support fair use, and provide a good alternative to commercial sites such as Vimeo and YouTube. The site already hosts some key works that are part of vidding history.
    • A new software program, Plotagon, offers a way to create a paint-by-numbers fanwork. "Available for Mac and PC, the basic 'city' version of Plotagon software is free and includes five actors and six environments. To create a Plotagon movie, users simply choose characters and an environment, type a script, add a few stage directions and press 'play.' Plotagon movies can be shared online and viewed at" Properties include Alice in Wonderland and Pride and Prejudice.

    What fanwork and intellectual property stories have you seen? Write about it on Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a roundup post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • Proposal for a Small Claims Copyright Process

    By Claudia Rebaza on Středa, 6 November 2013 - 8:01 odpoledne
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    Banner by Erin of a spotlight on an OTW logo with the words 'Spotlight on Legal Issues'

    The U.S. Congress is taking initial steps to write what the Register of Copyrights, Maria Pallante, called "the next great copyright act." This will be a long, complicated process, but there are some proposals already on the table, including one for a "small claims" process for copyright.

    Traditionally, if a copyright was infringed, the owner had two options: send a cease and desist letter with hopes that the infringer would stop (and possibly pay money), or take the matter to federal court through a standard lawsuit.

    But in September, 2013, the US Copyright Office introduced a proposal that would allow for relatively small copyright claims to be brought in front of a tribunal of copyright experts if both sides agreed.

    As the Copyright Office said:

    "Not all of copyright owners have the same resources to bring a federal lawsuit, which can require substantial time, money, and effort. Moreover, while a copyright owner may want to stop an infringement that has caused a relatively small amount of economic damage, that owner may be dissuaded from filing a lawsuit because the prospect of a modest recovery may not justify the potentially large expense of litigation."

    The implications of such a proposal on fanworks are two-fold, and a mixed bag for fans.

    First, to the extent that fanworks are protectable by copyright -- a complicated question in its own right -- it might make it easier for fan creators to seek redress against people who copy their work without permission, as well as make them stop the infringement. So for example, if a fan creator found their work copied without permission (such as printed onto shirts or calendars, or used in ads), they might be able to register the work with the Copyright Office and then, if the other party agreed, use the tribunal to resolve the issue. An order to stop infringing and limited money damages might be available. The proceeding is expected to be simpler than a traditional lawsuit in federal court, in part because all the arguments will be made electronically rather than in person. It wouldn't simplify the question of whether the fanwork was protected by copyright, but it might simplify the process of dispute resolution if it were.

    Second, making it easier and cheaper for copyright owners to get damages could mean that copyright owners would assert more claims where fair use should actually apply. There is an unfortunate history of some copyright owners abusing simple procedures, such as DMCA notices, in order to suppress fair uses they just don’t like. The proposed tribunal would be able to consider fair use and other defenses for infringement, but no one knows whether the experts would be favorable to fair use or skeptical of it. People with strong fair use defenses might well prefer the additional protections found in federal court. Because the tribunal would be voluntary, any fan who received an infringement claim would want to consult a U.S. lawyer who specializes in intellectual property law and is respectful of fair use before agreeing to participate.

    The OTW will be watching these issues as they develop. While there's no specific timetable for congressional action at this time, there will likely be hearings on this and other copyright issues over the coming year; the Copyright Office can't turn these proposals into law on their own. Keep an eye out; when Congress begins hearings, it will be very important for representatives to hear from people supporting fair use to balance out the concerns of the giants.

  • OTW Fannews: Collective action

    By Claudia Rebaza on Středa, 22 May 2013 - 6:02 odpoledne
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    • Fans and the general public are becoming less tolerant of corporate overreaches in copyright claims. A crackdown on Etsy vendors marketing Firefly-related hats caused sufficient outrage that one outlet selling the licensed hats decided to donate its profits to a Firefly charity. Yet as The Mary Sue pointed out, at least part of the anger was because now that "Fox has actually decided to license merchandise based on the ten year old television series" they're "taking shots at the smaller, unlicensed retailers that have been serving the market niche they’ve been ignoring."
    • Other overreaches garnered an even larger response, prompting the enforcement-happy Disney company to change an upcoming film title. "[T]he Internet flipped out in response to the news that Disney had filed several applications to trademark the Mexican holiday Día de los Muertos, which is the subject of an upcoming Pixar film. The freak out-age is completely justified: Trademarking Día de los Muertos would be exploitative, appropriative, and disrespectful of Mexican culture, plus it’s just downright insane (owning trademark to a holiday? C’mon, Disney). Luckily the massive amount of criticism got Disney to back off."
    • Collective action seems key. Research fellow Nicholas Theisen wrote about copyright in relation to manga and scanlations as well as examining issues surrounding fair use. "[M]edia companies quite often bully individuals and smaller companies into abdicating fair use rights simply by virtue of being able to spend more money on lawyers and on legal means of protecting one’s IP." This doesn't affect just fans but also scholars. "[I]t has become standard practice for publishers of comics scholarship to demand that authors get express written permission for each and every image to be reproduced, even though a work of scholarship is an obvious example of fair use." The problem is one that doesn't even reach litigation. "Scholars regularly lament this state of affairs, yet there is little pushback, because, at the end of the day, if you don’t get the permissions, your book doesn’t get published, and if your book doesn’t get published, the likelihood of your getting tenure plummets. The practice of publishers is likely never to change unless people at some point say “no,” at very real risk to themselves and their careers."
    • The new U.S. H.R. 1892 bill would amend the DMCA to require that circumvention be in aid of copyright infringement to be unlawful. This would fix a number of issues, including the OTW's need to get an exemption for vidders every three years. U.S. fans to whom these exemptions are important might want to contact their representatives in support of the bill.

    What collective action have you seen bring about a success for fans? Write about it in Fanlore! Contributions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, podcast, or link you think we should know about, comment on the most recent OTW Fannews post. Links are welcome in all languages! Submitting a link doesn't guarantee that it will be included in a roundup post, and inclusion of a link doesn't mean that it is endorsed by the OTW.


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