Recently, PlagiarismToday attempted to explain “5 Copyright Terms” that are, they felt, being used incorrectly. One of those terms was “Fair Use” - but unfortunately, their attempted explanation fell far short of correct.

They claim that Fair Use is “infringement of a work where the court has determined that the infringer is not liable”.

That’s not true. Fair Use is a lawful use of copyright. (See Lenz v. Universal Music Corp, 572 F. Supp. 2d 1150 (N.D. Ca. 2008)). As the US Copyright Office says, Fair Use is a “limitation” on the rights of the owner of copyright, and thus others who have not been authorized by the owner can reproduce the work; courts have held that this reproduction right includes the right to create transformative works.

While, as the Copyright Office says, the “distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined...” US courts have ruled in numerous cases on what those parameters are. The entire concept of precedent in US law means that “principles established in earlier cases” can be used to decide new cases with similar facts and issues. You don’t have to be the Supreme Court to see that Fair Use can apply in numerous situations.

PlagiarismToday misleadingly suggests that instead of saying something is Fair Use, creators should avoid saying anything, or use the terms “attributed” or “noncommercial” - even though those don’t determine whether something is Fair Use. A work that’s attributed or noncommercial can still infringe on another’s copyright, and an unattributed and commercial use can be fair. The question isn't attribution - it's whether permission is required and if so, obtained. Fair Use exists where permission isn't necessary, so whether you ask for it or not is irrelevant. This isn't to say that creators shouldn't identify their works as attributed or noncommercial--only that those notes won't make a use fair, and skipping them won't make a use infringing.

Noting that a work is, or even might be, Fair Use also doesn’t really have an impact on a court’s determining whether it is or isn’t. But that isn't the point, because a court isn't the only audience for a work. The internet isn’t a court of law; it is a court of public opinion. Including an author’s note or artist’s comment that a fic or painting or vid or film is Fair Use lets other people know what Fair Use is. As the US Copyright Office says, it can happen where “the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.”

Sounds like fannish creativity, doesn’t it?

As we say in the OTW FAQ: Fair use is the right to make some use of copyrighted material without getting permission or paying. It is a basic limit on copyright law that protects free expression. "Fair use" is an American phrase, although all copyright laws have some limits that keep copyright from being private censorship.

Fair use favors uses that (1) are noncommercial and not sold for a profit; (2) are transformative, adding new meaning and messages to the original; (3) are limited, not copying the entirety of the original; and (4) do not substitute for the original work. None of these factors is absolutely necessary for fair use, but they all help, and we believe that fanworks like those available through the AO3 easily qualify as fair uses based on all these factors.

We would like to thank everyone who responded to our previous call for volunteers!

Today, we're excited to announce the opening of applications for:

• Abuse Committee Staff - Closing 21 April 2014 UTC
• Legal Staff - Closing 21 April 2014 UTC
• Volunteers & Recruiting Staff - Closing 21 April 2014 UTC

We have included more information on each role below. Open roles and applications will always be available at the volunteering page. If you don't see a role that fits with your skills and interests now, keep an eye on the listings. We plan to put up new applications every few weeks, and we will also publicize new roles as they become available.

All applications generate a confirmation page and an auto-reply to your e-mail address. We encourage you to read the confirmation page and to whitelist volunteers -(at)- transformativeworks -(dot)- org in your e-mail client. If you do not receive the auto-reply within 24 hours, please check your spam filters and then contact us.

If you have questions regarding volunteering for the OTW, check out our Volunteering FAQ.

Abuse Committee Staff
The Abuse Committee is dedicated to helping users deal with the various situations that may arise. We also handle any complaints that come in about content uploaded to the Archive of Our Own. The team determines if complaints are about legitimate violations of the Terms of Service, and what to do about them if they are; our major goals are to adhere to the TOS, to make our reasoning and processes as clear and transparent as possible, and to keep every individual case completely confidential. We work closely with other AO3 related committees such as Support and Content.

Applications are due 21 April 2014 UTC

Legal Committee Staff
The Legal Committee is responsible for carrying out the OTW's legal advocacy mission and providing internal legal support and guidance to the OTW as an organization. We provide confidential legal advice to every part of the OTW organization, respond to fans' requests for general assistance and information, and create educational materials. We also file briefs in lawsuits and advise lawmakers about how to take fans’ needs and interests into account in creating and interpreting the law. And we're looking for a few new members!

We are particularly looking to expand our committee’s expertise in the fields of personnel/employment/HR law and nonprofit law. We’re also interested in finding people with expertise in the intellectual property laws of countries other than the U.S, and in adding to our group of people with expertise in U.S. copyright and trademark law. If this describes you – or even if it doesn’t, but you have legal experience and would be interested in joining the OTW’s Legal Committee, please click through to the application form.

Applications are due 21 April 2014 UTC

Volunteers & Recruiting Staff
The OTW is an entirely volunteer-run organization, and Volunteers & Recruiting looks after those volunteers! As the human resources committee, our job is to make sure that everyone has the tools, training and assistance they need to perform their best. If you have strong written communication skills, and an interest in or knowledge of personnel and/or project management, click through for details.

Applications are due 21 April 2014 UTC

On January 24, 2014, the OTW filed an amicus brief on behalf of DISH Network in the case of DISH v. ABC. This case, currently before the U.S. Court of Appeals for the Second Circuit, concerns DISH's "Hopper" DVR, which allows DISH subscribers to temporarily record primetime TV shows and then watch them, commercial free, for eight days. Although the U.S. Supreme Court declared more than 30 years ago that recording television for the purpose of "time-shifting" constitutes copyright fair use, ABC is attempting to shut down the Hopper by accusing both DISH and its users of copyright infringement.

The OTW's brief, filed jointly with the Electronic Frontier Foundation and Public Knowledge , argues among other things that copying for the purpose of fair use itself constitutes fair use, and that therefore when users instruct the Hopper to record television for the purpose of time-shifting, no one is infringing.

Although this case seems to be only about time-shifting, it has broader implications. Fans rely on people and companies who make the tools they use to create fanworks, which the OTW sees as fair use. For example, vidders must copy and process original material in order to make transformative vids. The OTW thus defends the rights of those who make those tools as well as fanwork creators. An important safeguard when considering fair use is the requirement that copyright infringement can't happen without a "volitional act." This requirement appropriately focuses the analysis on the maker of the copy. The focus on the fan creator thus allows for consideration of whether the copying constitutes fair use.

• The OTW recently submitted comments to the NTIA/PTO with the help of fan contributions. Rebecca Tushnet, an OTW Legal Committee staffer will speak in person on December 12 at the United States Patent and Trademark Office. A webcast will be available. Rebecca is part of a panel on Legal Framework for Remixes which will speak at 1700 UTC.
• Rebecca also posted a summary of comments from other organizations to the NTIA/PTO on her blog. The groups include Deviant Art, Creative Commons, the Center for Democracy and Technology, and the Consumer Electronics Association.
• The always busy Rebecca also took questions from users at io9 about fanfiction and mashups. One of the first questions regarded the legality of RPF. Rebecca's answer? "[T]hat doesn't implicate copyright at all. The possible issues involve defamation—but defamation requires that the audience believe that it's getting a statement of fact, and that's unlikely to happen with RPF...The other possibility is what's known as a right of publicity claim. But noncommercial fiction is outside the scope of the right of publicity, and even commercial fiction—the kind Joyce Carol Oates writes with her romans a clef—should be. There are some troubling cases finding that video games violate football players' right of publicity, but nobody thinks that a novel could do so, even one sold for profit."