DMCA

  • 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 Blip.tv, 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 Plotagon.com/movies." 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.

  • OTW Fannews: Giving people what they want

    By Claudia Rebaza on Neděle, 28 April 2013 - 6:55 odpoledne
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    • Slate wrote about how badly the DMCA affects accessibility of technology from ebooks to online videos. "[P]ublishers, video programmers, and other copyright owners lock down digital content with digital rights management technology designed to limit users’ ability to access, copy, and adapt copyrighted works to specific circumstances. And copyright owners frequently fail to account for the need to adapt DRM-encumbered works to make them accessible to people with disabilities.

      For example, e-books often include DRM technology that prevents people who are blind or visually impaired from running e-books that they have lawfully purchased through a text-to-speech converter that reads the books aloud. Similarly, Internet-distributed video and DVD and Blu-ray discs include DRM features that prevent researchers from developing advanced closed captioning and video description technologies that make movies and television shows accessible."

      What's more the process is the same one the OTW has to follow to maintain its DMCA exemption for fan video makers. "Requiring nonprofit disability groups to ask permission from the government every three years and navigate a complex legal minefield to implement urgently needed accessibility technology is not compatible with progressive, conservative, or libertarian values; the goal of equal access for people with disabilities; or common sense.”

    • Two of the OTW's Legal Committee members, Heidi Tandy and Rebecca Tushnet, recently were on a fanfiction panel with Vice President and Senior Intellectual Property Counsel for Warner Bros, Dale Nelson at the 6th Annual PIPG Symposium. Tushnet wrote about the panel and Nelson's discussion of fan activities: "Fan activity is fans having fun. Are they legitimate, are they acting from love? Or do they see fan activity as a loophole—make a fan film to showcase talent without having read Harry Potter? It’s not fans commercializing the property. We have exclusive rights; commercialization/merchandising in particular will draw our attention. But we tolerate a lot, including fan films, websites (the Leaky Cauldron, popular HP site); Dallas fan site; Lord of the Rings fan site; Quiddich players." She also responded later that it was how they interpreted fan intentions that mattered the most. For example, running ads on a website was usually not an issue because "some fan activities/sites do involve costs, and if it couldn’t run ads/raise a little money it wouldn’t exist."
    • Techdirt posted about a White House petition aimed at changing copyright for the digital age. "The petition notes that the public has lost respect for copyright law, and the government should take steps to fix that, including securing first sale rights, more transparency and a right to remix." Fan rights are expressed in the following: "[A]s responsible creators we need to be able to freely remix existing music and other forms of creative expression to create new works without undue fear of prosecution. This upholds the original Constitutional purpose of copyright, which is to promote progress."
    • Popular bookmarking site Pinboard has made it easier for fans to use it. "For months now it's been possible to declare yourself a part of fandom on the Pinboard settings page, but apart from making people feel good, the checkbox had no practical effect. I've finally changed that by offering a version of the sitewide search engine scoped only to users who self-declare as fans. This should make it easier to find fic using common keywords that would get drowned out on the main search page."

    Do you have stories about fan-focused technology or legal developments? 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.

  • OTW Fannews: Public challenges and social tagging

    By Claudia Rebaza on Středa, 20 March 2013 - 5:44 odpoledne
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    • A thesis written about the AO3's tagging system "attempts to begin exploring the question of what kind of environment the site's particular blend of open social tagging and some behind-the-scenes vocabulary control, plus hierarchical linking, creates for the users who search through it for fiction." The study, conducted in 2012, had a mix of quantitative and qualitative methods and the survey was completed by 116 people. "The current online information glut calls for some sort of subject labeling to facilitate efficiency in searching, but the volume of information is well beyond a size that could ever be dealt with by information professionals. “Social tagging” is an approach to this problem that lets non-professionals attempt to organize online information via tagging, for their own and one another's use. But social tagging is a new and rapidly evolving field, and so no consensus has yet been reached on its overall usefulness, or on what best practices might be."
    • Two rather different stories about fan video game makers were in the news recently. TechDirt summed things up in its post title: "Makers Of Firefly 'Fan-game' Abuse DMCA To Try To Silence Critic". "While I think that these kinds of games should be allowed...it appears that DarkCryo -- a company that is really skirting a pretty fine line concerning copyright -- decided to abuse the DMCA and file a takedown notice on [a critic's] posting of a DarkCryo logo image."
    • The other story was a little more typical, discussing how "Hasbro halts production of unauthorized "My Little Pony" video game". "This isn't the first time Hasbro has issued successful takedown notices for clearly illegal uses of its product, or even the first time it's taken down an MLP-inspired game. Previous instances where Hasbro has stepped in include the illegal download website Ponyarchive and the popular, though short-lived,multiplayer game MLP Online. Hasbro also took down the abridged series Friendship is Witchcraft, which should have been protected under under the Fair Use copyright clause afforded to transformative works within the U.S. However, issues of copyright and trademark are separate concerns with separate legal justifications. While Hasbro has so far been tolerant of copyright-protected fanwork such as fanart and fanfiction, it seems to have a rigid policy forbidding reuse of its official images and trademarks."
    • Some authors decided to challenge the claims of long dead creators' estates and, as the New York Times pointed out, highlighted a schism in the Sherlock Holmes fandom. "The suit, which stems from the estate’s efforts to collect a licensing fee for a planned collection of new Holmes-related stories by Sara Paretsky, Michael Connelly and other contemporary writers, makes a seemingly simple argument. Of the 60 Conan Doyle stories and novels...only the 10 stories first published in the United States after 1923 remain under copyright. Therefore, the suit asserts, many fees paid to the estate for the use of the character have been unnecessary. But it’s also shaping up to be something of what one blogger called 'a Sherlockian Civil War.'" The battle was laid out as being between the old guard (and, until recently, male only) Baker Street Irregulars versus the Baker Street Babes, "a group of young female Sherlockians who host a regular podcast."

    What legal and technology fan stories do you have an interest in? Add them to 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: Do it yourself edition

    By Claudia Rebaza on Neděle, 24 February 2013 - 7:26 odpoledne
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    • TechDirt discussed the new site DMCAInjury.com, which was set up to keep track of bogus DMCA takedown requests. Those who file such claims could face punishment for those actions under section 512(f) of the DMCAbut so far it's happened rarely and with difficulty. Keeping track of accidental or malicious takedown requests might spur more cases against those filing them, or "at the very least, perhaps it will create a useful dataset to explore the nature and frequency of bogus DMCA takedowns."
    • The Daily Dot discussed the controversy over racist, homophobic, and sexist commentary found at GitHub, an open source code-sharing site used by many projects (including the AO3). "GitHub is a platform geeks and techies love because it not only lets you manage projects but allows you to share your code and your projects with the outside world." However, the sharing mentality doesn't mean all users are welcome. "GitHub sits in the center of an Open Source community that has been dealing with heated ongoing controversy over its lack of diversity. In November, BritRuby, a Manchester conference of Ruby on Rails coders, was canceled after outrage broke out online at its all-male lineup of panelists."
    • A post at TeleRead offered fans tips on formatting downloaded fanfic from Fanfiction.net and the AO3, noting that MOBI downloads from AO3 can create wide margins and non-functional tables of content. Flavorwire tips readers off to the availability of Giphy, a search engine for animated GIFs. "Even in the age of relatively mainstream blogs like What Should We Call Me, though, a glance at Giphy’s front page reveals that the site caters to the kind of dedicated fandoms that popularized the .GIF in the first place."
    • Lastly, former Board member Francesca Coppa will be speaking at the Midwest Archives Conference on April 18 about the OTW's work on the Fan Culture Preservation Project and the AO3. Her talk will discuss how fan works are "an alternative, subterranean literature and arts culture, and describe the many ways fans have worked over the years to distribute and preserve that culture through zine libraries, hand-coded on-line archives,[and] songtape circles."

    What tools do you think help keep fandom running? Tell us 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.

  • The Rebellious Pixels Chain of Takedowns

    By Claudia Rebaza on Pondělí, 14 January 2013 - 12:42dop.
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    Last week remix artist Jonathan McIntosh had a troubling story to tell which put a spotlight on the current problems facing transformative works creators. In our current environment of automated copyright claims and the layers of entities users may have to go through to assert fair use rights, it takes real dedication sometimes to be heard.

    McIntosh's work, Buffy vs. Edward, is a well known video which has, as he cites in his post, been used on numerous occasions in academic settings. It is also among the Test Suite of Fair Use Vids that the OTW assembled as part of their successful case for a renewal of the DMCA exemption for vidders.

    McIntosh details months of effort to get his video reinstated which would, ironically, have been much simpler had he been making an effort to profit from the video. It was because ad placements have been disabled on his account that he was targeted by a subcontractor for Lionsgate, MovieClips, to either permit them or have the video deleted. Yet as a matter of U.S. copyright law, the non-commercial nature of Jonathan's video bolsters its status as copyright fair use.

    Though his video was eventually reinstated, it’s striking how much effort McIntosh had to put into dealing with the problem. Jonathan's video has been cited by the U.S. Copyright Office as an example of transformative fair use, yet he has had to defend it from numerous attacks and accusations. For every artist like him who is very familiar with the law and is willing to fight for his rights again and again, how many people are simply seeing their work disappear?

    This is one of the reasons we can see chilling effects, especially since this situation is a reminder that even clear cases of fair use aren’t safe from this kind of action. In fact, it appears that the video that was the subject of Lenz v. Universal, the case that established that copyright holders have to consider whether something is fair use before sending a DMCA take down notice, has once again been removed due to a copyright claim –- and this was a video which has already been litigated and determined to be fair use.

    The OTW wants to remind fans that its legal advocacy project is a possible resource for someone who finds themselves in a situation where their work has received takedown notices, and offers recommendations for vidders in particular on our Fan Video and Multimedia section of our website.

  • OTW at the Library of Congress for DMCA

    By .fcoppa on Čtvrtek, 7 June 2012 - 1:59 odpoledne
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    Tagy:

    Legal chair Rebecca Tushnet and Vidding committee members Francesca Coppa and Tisha Turk testified at the Library of Congress's Digital Millenium Copyright Act (DMCA) hearings on June 4, 2012 in favor of a renewal and expansion of the DMCA exemption for Noncommercial Remixers (like vidders and other fan video makers.) Rebecca Tushnet has been liveblogging all the hearings, including the OTW's testimony, and Tisha Turk is putting her notes and recollections online as well. You can also find copies of our Reply Comment as well as our various exhibits - our revised Test Suite and an Image Gallery comparing DVD-ripped and screen-captured images-- linked from our Legal Advocacy page.

  • DMCA Update

    By .fcoppa on Neděle, 4 March 2012 - 12:47dop.
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    Tagy:

    On March 2, 2012, the OTW's legal team filed a Reply Comment (PDF) in support of the EFF's petition to the Library of Congress to renew the DMCA exemption for noncommercial remixers, such as vidders. Special thanks to Legal Committee members Rachael Vaughn and Rebecca Tushnet for their work, as well as to all the fans who helped us explain why high quality clips are important to vidding and why remix matters!

    Next stop: testifying in DC. We'll keep you posted!

  • Links roundup for 24 February 2012

    By Claudia Rebaza on Pátek, 24 February 2012 - 7:25 odpoledne
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    Here's a roundup of stories on commodification of fandom that might be of interest to fans:

    • The TV series Chuck's demise was covered by various media outlets but NPR focused on the fandom. "Chuck's life and death speaks in surprisingly potent ways to how television is changing" writes Linda Holmes. "More than anything, Chuck is a story about the rise of the fan. Not only because the show has organized devotees — that's not new." Rather it was that "Chuck fans, in their businesslike enthusiasm, sold themselves as a product."
    • A review of the recent novel Convent says that while it "skewers just about every aspect of organized fandom and the publishing industry (sometimes literally) there’s rarely any meanness in it, more like family poking fun at a favorite — if slightly strange — uncle. ConVent is just great fun, a laugh riot from beginning to end and largely drawn from real-life experiences at cons." There is also a sequel planned.
    • An article about a controversial YouTube user focused on how the DMCA is being utilized, not just by entertainment entities attempting to control use of their products, but also the "growing use of copyright claims as a cudgel against enemies and rivals." The misuse of the law can also hurt artists. "Last September, one person falsely claimed copyright over music videos by Justin Bieber and Lady Gaga. It took hours for the videos to be restored. And that was an unusually fast response. It can normally take days or weeks for YouTube to restore a video —- and that’s if the person who posted it responds with a counterclaim against the original DMCA request. Nearly 8,000 YouTubers have signed a petition calling on Google to reform how it handles DMCA notices.""
    • By contrast, Portals is a music blog collective of sixteen bloggers raising money through Kickstarter to help artists. They describe the site as ""a daily destination for MP3s, videos, mixes, interviews, artist's writings, and cultural commentary -- curated for quality, and with an emphasis on emerging artists and musical movements that best exemplify the new grassroots, Internet-fueled DIY."" But one of the writers "balked at the idea of wielding "influence" over a readership" explaining "I'm not trying to become more influential. I guess the goal of expanding who we're reaching is something, but I don't want anyone to listen to something because I said so. I just want to let as many people know it exists as I can. I want these bands I think are amazing to at least have the chance to be heard. I just don't think influence is the right word.""

    If you are a fan of Chuck, are a music fan, use YouTube, or attend cons why not contribute to Fanlore? Additions are welcome from all fans.

    We want your suggestions! If you know of an essay, video, article, event, or link you think we should know about, comment on the most recent Links Roundup — on transformativeworks.org, LJ, or DW — or give @OTW_News a shoutout on Twitter. 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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