• Update on DMCA Exemption for Fan Videos

    By Janita Burgess on Pondělí, 11 May 2015 - 5:13 odpoledne
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    Last week OTW Legal joined with the Electronic Frontier Foundation to file comments on the U.S. Copyright Office's rulemaking on Section 1201 of the Copyright Act. This filing explains why noncommercial remix videos are fair use and should receive an exemption from copyright restrictions which make it illegal to break encryption on visual formats such as DVD, Blu Ray and streaming video.

    At the end of this month, current and former OTW staffers Francesca Coppa, Tisha Turk, and Rebecca Tushnet will be testifying in front of the Copyright Office about why the current remix exemptions should be renewed and expanded to cover Blu-Ray. The opponents of an exemption argued that fan videos aren’t fair uses, but they didn’t formally oppose the renewal of the exemptions for DVDs and streaming which we won in 2012. This means those exemptions should continue, though the Copyright Office still needs to rule in our favor despite the lack of opposition. The fact that the MPAA and other opponents now recognize that they have no good arguments against the existing exemptions for DVDs and streaming video also demonstrates the importance of fans having a voice consistently representing them in legal discussions about fair use.

    As the document states:

      "Opponents seek to undermine the 2014 examples by dismissing them as “entertainment” and suggesting that such videos are less likely to be fair. This is nonsense.
      Opponents may not understand the values and context of the work, but that failure suggests only the importance of not putting them (or anyone else) in charge of vetoing such uses. “‘As Justice Holmes explained, ‘[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.’"

    Many vidders helped us explain why fan videos need high quality source, including Blu-Ray source, and we thank each of them for their support.

    All of OTW Legal's filings on copyright cases can be accessed from their project page on the OTW website. We will continue to keep fans informed of developments.

  • OTW Fannews: Building and Re-Building

    By thatwasjustadream on Čtvrtek, 2 April 2015 - 9:39 odpoledne
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    OTW Fannews Building and Rebuilding graphic by Rachel G with an image of the YouTube logo being broken apart

    • The Prince Albert Daily Herald wrote about a fanfiction author whose path to publication involved plagiarism. "Another series she’s working on centres on the fictional Red Rebels motorcycle club, which was inspired by the television series Sons of Anarchy. It started off as a Sons of Anarchy fan fiction novel she wrote and was stolen by someone online who stripped it of the television references and tried to pass it off as an original novel of their own. The rip-off garnered some positive reviews, so Breadner decided to give motorcycle club fiction a try."
    • Rosalyn Hunter wrote about her experience with fan video takedowns. "I posted the work on You Tube and others were able to find it. They gave me comments and encouragement to go on and try again. I had begun the learning process. I was pleased, but this positive experience was not to continue. My next videos were found to have content matching commercial works, and so they were either blocked worldwide, or removed entirely...I created a video and posted it as a private work. This work too received a content warning. Others were not able to view and comment on the work...I was told in one case that I could erase the music and pick a piece from their music library, but the images were integrated with the music. To remove the music would upset the unity of the work so that it would make no sense."
    • The Asian Age reported on expected takedowns. "[A] massive crackdown by Google on Blogger, its popular global blogging community, will effectively ban all ‘mature’ creative content from the site." As of 2012, Google made it easier to censor Blogger content by country. "Adult fanfiction writer Khyati Gupta, who has been writing an ongoing work-in-progess of erotica for almost six months now, shares...'To me, a blog always meant a space where I could be myself, express myself freely and share my creative musings with a host of people who don’t personally know me and are therefore better placed to give me completely objective feedback. It was that one space where I didn’t have to restrain my imagination. Erotica is a fairly marginalised genre in India as far as paperbacks go.”
    • By comparison the Apocalypse Weird franchise centers on collaboration. "The creative collaboration on Apocalypse Weird is scheduled to include 20 authors, with two new titles releasing each month. There are also plans for a fan-fiction thread, in which readers will be able to expand on the stories of their favourite characters with the chance of their contributions becoming canon in the Apocalypse Weird universe. There’s an impressive level of creativity and ambition in this indie publishing collaboration, something too often missing from mainstream publishing today."

    What examples of takedowns or collaboration have you experienced? 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 Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Fannews: Shark & Ranger Takedowns

    By Pip Janssen on Pátek, 20 March 2015 - 4:36 odpoledne
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    • Bloomberg BNA was one of many sites to write about a dispute over a Power Rangers fan film created by professional director Joseph Kahn. It was taken down from Vimeo in response to a takedown notice under the US Digital Millennium Copyright Act from the owner of the Power Rangers franchise. Although it was later permitted to be rehosted, the case raised a number of interesting questions about fair use and who would have prevailed in court. A post on Entertainment Geekly also questioned the 'fan film' label and the intentions for the film.
    • Legal Professor Paul Heald speculated over 3-D shark designs being sold online after their appearance in Katy Perry's Superbowl performance. "The generally accepted position is that clothing is not protected by copyright. The copyright act contains a long list of what’s protected: literary works; musical works; plays; choreographic works; pictorial, graphic, and sculptural works; movies; sound recordings; and architectural works. Where would clothes fit? Well, the best you can do is sculptural works—they are sort of thin 3D sculpture. However, within that category, costume designers run into a problem called the “useful article” doctrine which disqualifies utilitarian sculptural works...It is generally accepted that clothing is unprotected [because] [i]ts design is intrinsic to its function."
    • Kimberly Anne Tan interviewed a bookseller on Urban Wire about fanfiction. Asked whether fan fiction should be recognised as literature, Anthony Koh Waugh replied, "Literature, to me, means written works of quality and artistic merit. There are fan fiction inspired by classic works and popular fiction and among them, some are better written than the others. I see fan fiction as a creative innovation and whether or not the genre should be recognised as literature will depend on the acceptance by the literary circle." However asked if he would sell fan fiction, he said "Of course! Fan fiction is a form of creative writing. Having said that, it also depends on how a particular book fits within our curation criteria."
    • Certainly it's increasingly easy to find, even in published form. Zaire's Books Alive featured discussion of a short story by Kiru Taye, a Nigerian-born novelist residing in the United Kingdom, noting that she had written an erotic fan fiction short story inspired by Chimamanda Ngozi Adichie’s novel Americanah.

    What fanworks have you seen affected by takedown notices? 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 Legal Comments on Audio Takedowns

    By Kirsten Korona on Pondělí, 2 March 2015 - 6:04 odpoledne
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    Recently, there have been concerns about accounts being terminated on Tumblr if a user has made audio posts that allegedly infringe on existing copyright. The OTW is concerned by reports of this practice being applied to users who have made posts which fall under Fair Use. Read on for an explanation of the situation and instructions on what you can do if you feel your account has been terminated in error.

    What's Going On?

    There's a lot of information going around about this situation. A FAQ post has been circulating which attempts to explain the situation, along with a script to help users locate audio posts they've made and a description of how one user had their account restored after termination. It's difficult to be certain about a lot of the details, though. Tumblr's Terms of Service state that they "may immediately terminate or suspend Accounts that have been flagged for repeat copyright infringement," and their policy for the past few years has reportedly been to terminate accounts that accrue 3 DMCA takedowns within 18 months, though they are not legally required to operate this way.

    However, it appears that accounts are being terminated without investigating the possibility that posts fall under Fair Use, even though this has been a legal requirement in the US since 2008. Fair Use exemptions ensure that the use of media for the purpose of commentary, criticism, education, or transformative works, such as fanworks, is considered legitimate and non-infringing. Reportedly, on Tumblr, there have been no Digital Millennium Copyright Act (DMCA) takedown notices issued prior to the termination of many accounts, and thus users have not been given an opportunity to claim the legitimacy of their posts under Fair Use legislation prior to having their accounts terminated. However, we have also heard reports that some users have been able to successfully argue against one or two of the strikes and have their blogs reactivated.

    Restoring Wrongfully Terminated Accounts

    So what can you do if you feel your account has been terminated in error? Tumblr outlines in section 20 of its Terms of Service the procedure to follow for submitting a DMCA counter-notification, which is also the procedure that should be used to contest termination for copyright infringement without the receipt of a takedown notification. The procedure is as follows:

    If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with Tumblr by providing the following information to the Designated Agent at the address below:

    • The specific URLs of material that Tumblr has removed or to which Tumblr has disabled access.
    • Your name, address, telephone number, and email address.
    • A statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or the federal district courts located in New York County, New York if your address is outside of the United States), and that you will accept service of process from the person who provided the original DMCA notification or an agent of such person.
    • The following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
    • Your signature.

    Designated Agent
    Tumblr, Inc.
    35 East 21st St, 10th Floor
    New York, NY 10010
    Attn: Copyright Agent
    Fax: +1 (646) 513-4321
    Copyright notice form:

    Upon receipt of a valid counter-notification, Tumblr will forward it to Notifying Party who submitted the original DMCA notification. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material. If Tumblr does not receive any such notification within ten (10) days, we may restore the material to the Services.

    Further to this, we recommend reading the Electronic Frontier Foundation's report Who's Got Your Back?, which includes a lot of information about widely-used online companies’ “objectively verifiable, public policy statements” regarding copyright DMCA notices and counter-notice procedures.

    This information was adapted from a post written by OTW Legal staffer Heidi Tandy on the fyeahcopyright tumblr. Permission was given but was not actually necessary as this write-up is a Fair Use of that content.

  • OTW Fannews: Asking for Fan Rights

    By Janita Burgess on Čtvrtek, 12 February 2015 - 5:30 odpoledne
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    • A Tech Dirt post directed attention to the Internet Archive's release of over 2,000 MS-DOS video games, playable in the browser. "What I found truly amazing was that with every excited Twitter or Facebook comment I saw, it was about a different game...Each person seemed to latch onto their own moment in history." But the "Internet Archive is allowed to do this kind of thing...because it was lucky enough to get one of the semi-arbitrary DMCA triennial review exemptions that lets them break old DRM for the purpose of archiving vintage software. But, even then, it's not entirely clear that what the Internet Archive is doing is fully protected today."
    • Slate interviewed Lacey Noonan, the author of a humor RPF story about a U.S. football player. She was asked, "You’ve also written a story that features an encounter between Flo from Progressive, Wendy from Wendy’s, and Jan from Toyota... Are you drawn to characters that aren’t typically seen as particularly sexual?" Noonan: "Definitely. I believe all three of those women are talented actors, but yeah ... not your normal fare. I think it's a writer's responsibility to throw light on the dark corners. It's also a kind of reaction to the blunt ubiquity of American culture. Like, if it's going to be in my face 24/7, then I'm going to have a reaction to it, and I should."
    • The Boston Globe later wrote about Noonan's book being pulled from Amazon for trademark violations. The reason was "the book jacket, specifically the photo of Gronkowski that features the 'MHK' patch on his uniform" though whether it was a demand by the National Football League or his team, the New England Patriots, wasn't clear.
    • Meanwhile the Patriots' opponents in the Superbowl were attempting a number of trademark grabs. "The Seahawks’ aggressive quest for new revenue has led both the NBA and the NHL to try to slow one of the trademark applications. And while Seattle’s owners were once sued over the use of '12th Man,' the team is now trying to seize control of many other variations of the term. In the process, the Seahawks organization has battled fans, local businesses and even a former player... 'They’ve always been a little aggressive about securing intellectual property for themselves,' said Andresen, who has worked with other professional franchises. 'They’ve really taken the position that the more intellectual property, the better.'"

    Where have you seen fans standing up for their rights? 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 Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Reports On Davis v. Electronic Arts & Asks for Fans' Help

    By Janita Burgess on Pondělí, 2 February 2015 - 5:30 odpoledne
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    OTW Legal, together with the Electronic Frontier Foundation (EFF), filed an amicus brief (available in PDF) on Friday seeking a rehearing in the case of Davis v. Electronic Arts.

    The case concerns the relationship between the First Amendment, which guarantees the right to free expression, and states’ right of publicity laws, which limit how people's names, likenesses, and personas can be used. The brief argued that the U.S. Ninth Circuit should rehear the case because its decision in the case struck the wrong balance, favoring rights of publicity in a way that harms creators who want to make expressive works about real people.

    Under the existing decision, the brief argued, “an artist creating a work about a real person has little idea how a court might evaluate liability for the use of that person’s likeness, particularly if she cannot be certain which jurisdiction’s rules might govern the analysis.” The brief asked that the court re-hear the case in order to protect artists who want to create realistic portrayals of real people, and to shield creative expression from overreaching publicity rights.

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

    Talk Back to the U.S. Copyright Office

    In the meantime, we could use help from fans!

    A number of organizations have created a public comment form to make it easier for users to join the discussion about U.S. Digital Millennium Copyright Act (DMCA) reform. As stated on the page: "For an exemption to be granted, we need to demonstrate an 'overwhelming market need.' That's where you come in: Let's show them what thousands of people demanding their rights looks like."

    The OTW has petitioned for a renewal of a DMCA exemption for fan video makers. We would like fans to add their voices and tell the Copyright Office that they have a right to remix multimedia.

    The key exemption for the OTW is the third item on the comment list: "Remix your media (videos)". We're asking that fans write in about their need for high quality source from DVDs or Blu-Rays; sources that are only available on Blu-Ray; or sources from places like iTunes or Amazon when that's necessary to make a timely vid to participate in an ongoing fannish conversation.

    Comments are due by February 6, and will be published on the Copyright Office website.

  • OTW Fannews: Commercial Exploits

    By Kiri Van Santen on Pátek, 23 January 2015 - 5:27 odpoledne
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    • Many fans of Fall Out Boy launched a petition to protest a proposed event by podcaster Jensen Karp which would revolve around reading "the most ridiculous REAL fanfiction about them on the web." The event was later cancelled though it remained unclear how much participation the band itself had had in the plans.
    • The use of fans' work by third parties was less clear in an announcement by YouTube gamer PewDiePie who launched a fanfic contest with himself as the subject, noting that "The contest will be sponsored by Mountain Dew." Three finalists would have their story submission turned into an animated video. The Terms and Conditions of the contest noted that aside from transferring the rights to all entries (whether they were winners or not) to "Sponsor, Administrator and their agents along with PewDiePie" that the fanworks "must not denegrate the subject, Mountain Dew brand, product and/or trademark."
    • At the American Library Association's District Dispatch, Carrie Russell bemoaned the US Digital Millennium Copyright Act process that also forces OTW Legal to repeatedly defend the exemptions it won for fan video makers in 2009 and 2012. "Here’s the problem: Sometimes DRM gets in the way of actions that are not infringements of copyright. Let’s say you have lawful access to an e-book (you bought the book, fair and square), but you are a person with a print disability, and you need to circumvent to enable text-to-speech (TTS) functionality which has been disabled by DRM. This is a violation of the circumvention provision. One would think that this kind of circumvention is reasonable, because it simply entails making a book accessible to the person that purchased it." Russell called for the exemptions to be made permanent and eliminate the months of time spent by petitioners and government alike.
    • An article in The Guardian highlighted the various benefits of new technology in expanding what producers and consumers are able to exchange (even if fans had long been there first). "The rise of these electronic devices built only for reading has been a boon to the books sector. The transition to digital reading brought with it a new kind of publishing that was distinctly more experimental, energetic and (nakedly) commercial than that which preceded it. Just this week the publisher Little, Brown began publishing ebook shorts based on the hugely successful Broadchurch TV series that are made available to download in the hours after each show."

    How have you seen fans' work adopted and co-opted? 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 Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Fannews: Book Fandom End to End

    By Please leave a name on Pátek, 9 January 2015 - 5:34 odpoledne
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    • At The New Statesman, Elizabeth Minkel discussed book fandoms and the importance of small presses. "The fan who gets hired to make the thing he’s obsessed with has its own TV Trope: 'the promoted fanboy'...But that trend feels more absent in female fandom: it’s easier for me to find examples of women who’ve gently distanced themselves from their fan communities as they worked towards mainstream success – hardly unsurprising, given the publishing industry’s historical antipathy towards fan fiction, the largely female-dominated practice that lies at the heart of a lot of women’s fan experiences, combined with the media’s continued less-than-flattering portrayal of fangirls."
    • Minkel as well as Hypable and many others reported on Rainbow Rowell's next book release, a Fangirl spinoff focused on the fictional fanfic in the story. "Rowell will open up Cath’s fanfiction for all the world to enjoy! Her latest book, due out in October of 2015, will be appropriately titled, Carry On. Even without the source material, we can bet that fans will be lining up to get their hands on the novel based on the fanfiction based on the fake novel within a real novel. (That must be some kind of new genre!)" Sorry, but fans have been there for a while.
    • OTW's ally organization, the Electronic Frontier Foundation, posted about a recent US federal court case allowing the sharing of information on stripping out DRM from ebooks. "When Abbey House shut down the ebook store in 2013, it gave its customers a month's notice that they would no longer be able to add new devices to read their purchased books on—and also explained that some customers were using the free software package Calibre to remove the DRM so they would be able to move their library to new hardware." They note that it puts the burden on users and the organizations that advocate for them, such as the OTW, to "continue with the triennial rulemaking process seeking exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act. There, we are pointing to non-infringing uses that are nevertheless hampered by the presence of DRM software and the legal backing that supports it."
    • The Kansas City Star interviewed Wattpad users who were more interested in writing rather than book deals. "Ramya Chilappa, an eighth-grader at Leawood Middle School, likes to read fan fiction of Harry Potter and Naruto, the manga series, on her phone. She says the comments she’s received about her writing were constructive. 'Things like ‘this part feels rushed’ and ‘maybe you’ve started too many sentences the same way... Then they throw in a compliment. They know what it’s like.'... While text is the chief medium, some Wattpadders go multimedia creating book cover images — there’s an art library to tap — as well as embedding story soundtracks and offering YouTube trailers."

    How have you seen book fandoms adapting over the years? 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 Fannews post, and inclusion of a link doesn't mean that it is endorsed by the OTW.

  • OTW Legal Files New Amicus Brief in Garcia v. Google

    By Claudia Rebaza on Středa, 26 November 2014 - 7:30 odpoledne
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    In April, OTW's legal team filed an amicus brief in Garcia v. Google. In that brief, we asked the U.S. Ninth Circuit Court of Appeals to re-hear the case, which dealt with the internet "safe harbor" provisions that protect intermediaries (like YouTube and the AO3) from liability for user-created content. A three-judge panel of the court had issued a ruling that ignored these safe harbors and imposed liability on Google for material that its users posted. As we noted then, it was a case 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 creating what might have seemed a just result in that case, the panel disrupted Congress's intent in passing the safe harbor laws and created potentially chilling risks to free speech.

    We succeeded! On November 12, 2014, the court ruled that its previous decision was void, and ordered that the case would be re-heard by the entire court--not just a three-judge panel--in December. The OTW has filed a new amicus brief in the case, expanding on the arguments we made in our original brief. As we explained in our filing, the court should interpret the safe harbors broadly enough to provide safety for content hosts, because that safety is what permits content hosts like the AO3 to exist. If hosts were vulnerable to lawsuits over user-created content, it would allow censorship to flourish and create an environment in which many intermediaries could no longer afford to continue operating. As we argued: "when intermediaries’ immunity is not robust, the vibrant marketplace of ideas they enable is compromised."

    We will keep you informed as the case progresses. Our brief is available in PDF on the Legal Project page, along with all our filings, on the OTW website.

  • 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.


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