Takedowns

  • OTW Fannews: Building and Re-Building

    By thatwasjustadream on Thursday, 2 April 2015 - 9:39pm
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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.

  • 10 Fair Use Misconceptions

    By Kiri Van Santen on Wednesday, 25 February 2015 - 7:29pm
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    This is Fair Use Week 2015 in the U.S. which takes place from February 23-27. The event is held to raise public awareness of the importance the rights of individuals, nonprofits like schools and libraries, and even corporations like Google and The New York Times have when it comes to copyright. Today we're following up on yesterday's post which explained how Fair Use works in the U.S. - and we're looking at some misconceptions about Fair Use.

    Fair Use is a kind of infringement, right?

    Nope! Fair Use is a lawful use of copyright. That's what the law says, and it's also what the Northern District of California said in the case of Lenz v. Universal Music back in 2008. If your new work is a Fair Use of someone's copyrighted work, you're not infringing on that work. Also, fair use isn't a license; the whole point is that you don't need the copyright owner's permission. (Just imagine if a copyright owner had to grant permission every time someone created a parody that was critical of the original - they probably wouldn't!)

    If a site has ads, nothing I put on there can be Fair Use, right?

    Nope! For two reasons. First, while many hosting sites are moneymaking ventures, that doesn't mean that the people posting their works there are engaged in commercial use. People who post their fanworks on YouTube aren't making money from those works - if anyone is, it's YouTube or their advertisers. (But as a reminder, the AO3 is entirely nonprofit and noncommercial, and is dedicated to providing a platform for fanworks with no ads.)

    Second, even if someone is engaged in a moneymaking venture, they still might be engaged in Fair Use. While the commercial aspects of a project are one of the factors a court looks at when determining if a use is Fair Use, it's not the only factor. So while the Organization for Transformative Works is a nonprofit, and our legal advocacy team focuses on noncommercial works, we do want to note that commercial works can also be noninfringing because of Fair Use.

    As noted copyright expert Judge Pierre Leval of the Second Circuit stated last year in arguments regarding whether Google Books' scans of entire books was a Fair Use, “The classic fair use cases are commercial. I would be surprised if [one is] going to win by pleading that Google, like the New York Times, is a profit-making enterprise.” In fact, US courts have found many commercial uses to be fair. One example of a commercial work found to be fair use is the (commercially published) book The Wind Done Gone, which retold the story of Gone with the Wind from the perspective of the slave characters. A more recent example was addressed in 2013 in the case of Cariou v. Prince; in that case, artist Richard Prince purchased a book of photos by Patrick Cariou, and painted over the photographs, selling his "appropriative" art at prices in the many thousands of dollars. (In fact, some sold for two million dollars or more.) The court found that most of Prince's works were Fair Use.

    Fair Use only covers uses that criticize or comment on the original copyrighted work, right?

    Nope! Although criticism and commentary are among the types of fair use described by the statute, U.S. courts have held that a work need not comment on the original in order to be transformative. In Cariou v. Prince, the court said that "a secondary work may constitute a fair use even if it serves some purpose other than ... criticism, comment, news reporting, teaching, scholarship, and research." In other words, Prince's art was so transformative of Cariou's photographs that Prince's follow-on works were noninfringing because of the Fair Use doctrine. Cases about mass digitization projects like Google Book Search have found transformativeness even when copyrighted works are copied into a database without any commentary or criticism. In the case of Author's Guild v. Google, for example, the court explained that Google Book Search was transformative because it transformed the purpose of the digitized books--for example, by allowing large-scale data searching, preserving out-of-print books, and making books available for print-disabled users--even without transforming their meaning.

    So Fair Use only applies to transformative works, right?

    Nope! Fair Use allows newspapers to quote books, films, and yes, fanworks, for purposes of news reporting, commentary and criticism. Fair Use also covers certain uses for educational purposes, like when teachers assign little kids to write their own ending to a tv show or film, or show clips from a film in a media analysis class, or make copies of a page or two of a book for classroom use. Fair Use is one reason why the backgrounds of films and tv shows can include book covers, and why songs on the radio can mention copyrighted comic book characters. It doesn't cover a university tv station showing films over its network during finals, though.

    My use will be Fair Use if I use a disclaimer identifying the original creator and saying I don't own it, right?

    Not necessarily! In fact, attribution isn't part of the Fair Use analysis. So something that's Fair Use will be Fair Use regardless of whether it has a disclaimer - and a disclaimer won't help a copy that isn't Fair Use (like uploading an entire copyrighted movie for others to share and watch, see below). That doesn't mean that fans should stop putting disclaimers on their fanworks - it's a good ethical practice, and it honors those who created the original works that fans love so much - but it isn't something courts are likely to consider in determining whether something is Fair Use. Also, though you definitely don't need to add a note to your work about it being Fair Use (remember, it's not a license!), it never hurts to explain ahead of time why you think it might be.

    If a site that's not as enlightened as AO3 takes my fanworks down, there's nothing I can do, right?

    Nope! Most sites that operate in the US have what's called a Digital Millennium Copyright Act (DMCA) policy - the AO3 has one, too. Generally, they require a copyright claimant who wants someone else's work to be taken down to submit a pledge that they own the copyright in a specific work, and their copyright in that work has been infringed. Some courts have held that copyright owners are supposed to conduct a Fair Use analysis before issuing a takedown notice, but oftentimes, they don't bother, or they use a rigid matrix. And sometimes sites don't conduct that Fair Use analysis either--they just take the content down. So the Copyright Act also provides for a counter-notice process (17 U.S.C. § 512(g)) where the person whose work was taken down has a chance to demonstrate to the site that the work is noninfringing - usually because it's Fair Use. At that point, the claimant can argue to the site that Fair Use doesn't apply, or realize that huh, it does! In reality, the final decision usually rests with the site or server company hosting the content, but the counternotice process at least provides for an opportunity to respond to someone else's copyright claim. And if you get a takedown notice for a noncommercial transformative work and want help understanding the counter-notice process, you can get in touch with OTW's legal team.

    Fair Use means I can upload films and tv shows and songs and entire books for others to download in their entirety, right?

    Nope! Or, at least, most of the time, nope. There are some exceptions, such as where the content is in the public domain (see below), or is the subject of a Creative Commons license or another license for a specific use like the kind we have here on AO3 that allows readers to download stories onto their e-readers, accessible via a password-and-license process for educational or other specific purposes. (Or if you're Google, creating Google Book Search, as we've described above--but you're probably not!) If you've done something transformative with it before you share your follow-on work, it may be Fair Use, but putting someone else's film or album or novel or webisode onto a torrent or server usually doesn't qualify. (But you're not the only one with this question; Mark Ruffalo wondered about it last year, too.)

    Fair Use is some newfangled thing made up by fandom lawyers and fanfic writers who want to play with someone else's characters and stories, right?

    Nope! Fair use has been part of the U.S. Copyright statute for many decades, and existed in the common law long before that. In a case called Folsom v. Marsh in 1841, Justice Story set out a summary that's been quoted, cited, paraphrased and made the subject of follow-on works for over 170 years: "We must often . . . look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work."

    Fair Use is why I can use things in the public domain, right?

    Nope. Works that were originally published in the U.S. before 1923 and works created by the U.S. Government (and a few more categories, but those two are the most common) are in what's known as the "public domain," which means that they aren't protected by copyright law at all. Films, songs, stories, plays, poems, essays, art, books and other works in the public domain can be used by anyone for any purpose because they're not protected by copyright. It's fair to use them, but follow-on works inspired by things in the public domain aren't literally Fair Use situations. As the Seventh Circuit said last summer in Klinger v. Conan Doyle Estate, "When a story falls into the public domain, story elements—including characters covered by the expired copyright—become fair game for follow-on authors."

    Fair Use is a worldwide concept, right?

    Alas, nope. Fair Use is a U.S. doctrine, although a number of other countries have similar laws. If you're outside the U.S., the law that applies to you may be significantly different than what we've described here. Regardless, no matter where you are, Fair Use law matters to you if you're posting your works on U.S. sites or if you're using source material owned by U.S. copyright holders.

    We're here to help! If you have questions about fair use and fanworks, feel free to contact our legal team.

  • OTW Fannews: Commercial Exploits

    By Kiri Van Santen on Friday, 23 January 2015 - 5:27pm
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    banner by caitie of a monopoly hundred with the OTW logo and the title of this post

    • 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 files amicus brief in Capitol Records vs Vimeo

    By Janita Burgess on Thursday, 31 July 2014 - 5:11pm
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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 Sunday, 20 April 2014 - 5:41pm
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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: Takedowns from all sides

    By Claudia Rebaza on Tuesday, 21 January 2014 - 7:39pm
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    Banner by Bremo of the post title curving as if it's sliding down a wall.

    • Forbes was one of many sites discussing YouTube's crackdown on fans who use video game footage to review or discuss games. "So at the same time as two major console makers are integrating video sharing into their systems, YouTube is cracking down on the video game community. Of course, YouTube’s response to this is vague and unhelpful...Now a number of video game publishers such as Ubisoft, Paradox Interactive and Capcom have stated publicly that people should fight the copyright claims, understanding full well the win-win situation for all involved."
    • On another front, booksellers are censoring erotica writers. "Some U.K.-based ebook retailers responded with public apologies, and WHSmith went so far as to shut down its website altogether, releasing a statement saying that it would reopen 'once all self-published eBooks have been removed and we are totally sure that there are no offending titles available.' The response in the U.S. was somewhat more muted, but most of the retailers mentioned in the piece, including Amazon and Barnes & Noble, began quietly pulling hundreds of titles from their online shelves." The reasons why were never stated. "'I'd get an email from them saying, 'We found the following books in violation of our content guidelines,' she recalls. 'But they wouldn't tell me why. There were no specifics.'"
    • If copyright or censorship fears weren't enough, apparently the study of erotic fiction is being targeted by some government cost-cutters. "The National Endowment for the Humanities has awarded $914,000 to help fund The Popular Romance Project since 2010, an ongoing study that explores 'the fascinating, often contradictory origins and influences of popular romance as told in novels, films, comics, advice books, songs, and internet fan fiction.'...The grants are highlighted in the 2013 'Wastebook,' an annual report ...that highlights taxpayer-subsidized programs that...are questionable or unnecessary, especially during a time when lawmakers are viciously debating spending levels and how to trim the nation’s $17 trillion debt."
    • Meanwhile Slate's Future Tense blog looked at How Artificial Intelligence Might Monetize Fan Fiction. "A fan fiction writer e-publishes a story he wrote using the main characters, a vegan vampire who runs a butcher shop and a werewolf who turns into a plumber at full moon. His book sells millions of downloads, too. Did the fan fiction writer do anything prohibited by law? Not necessarily. As U.S. copyright law anticipates only human authors, it is reasonable to read it as providing no copyright protection to authors that are not human. The fan fiction writer can use the Super Potter Brothers characters as much as he wants; they’re in the public domain. Anyone can use them and make money from them, including the movie studios."

    What fandom takedown cases 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: Legal stands

    By Claudia Rebaza on Saturday, 14 December 2013 - 10:55pm
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    • Online platform WordPress recently took a stand against abuse of DMCA takedown notices. They decided to join with journalists using the site in a suit "for damages under Section 512(f) of the DMCA, which allows for suits against those who 'knowingly materially misrepresent' a case of copyright infringement. Until there are some teeth to the copyright laws, it’s up to us — websites and users, together — to stand up to DMCA fraud and protect freedom of expression...We’ll also be actively involved, on behalf of our users, in trying to change the law — both through court cases and in Congress — to make sure that everyone has the right to share their voice on the internet without threat of censorship."
    • The University of New Hampshire's student newspaper reported on a challenge to courses using pop culture texts. "Over the summer, UNH offered an online class to children grades four through eight using Harry Potter to teach the kids grammar and literature tools. Warner Brothers, however, sent the university a cease and desist letter regarding some of its copyrighted material." The "cease and desist letter asked UNH to change the class so that those interested in it did not think Warner Brothers sponsored the course."
    • Fans interested in learning more about copyright can take a free non-credit online course. "CopyrightX is a twelve-week networked course, offered each Spring under the auspices of Harvard Law School, the HarvardX distance-learning initiative, and the Berkman Center for Internet and Society. The course explores the current law of copyright and the ongoing debates concerning how that law should be reformed. Through a combination of pre-recorded lectures, weekly seminars, live webcasts, and online discussions, participants in the course examine and assess the ways in which law seeks to stimulate and regulate creative expression." Registration begins December 13.

    What legal fandom issues have you become aware of? 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 Thursday, 14 November 2013 - 5:28pm
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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 Wednesday, 6 November 2013 - 8:01pm
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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 Wednesday, 22 May 2013 - 6:02pm
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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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