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.

Since OTW's inception over five years ago, our Legal Committee has made significant contributions to the world of transformative works. Most recently, our Legal Committee (with the Electronic Frontier Foundation) secured a DMCA exemption from the U.S. Copyright Office for fanvidders and other non-commercial vid makers. You can read more about this legal victory below or here. The purpose of this Spotlight is to familiarize the public with our legal eagles. The Communications Committee contacted Legal, and Professor Betsy Rosenblatt graciously volunteered to do this Q & A.

Q: What do you do when you're not volunteering for the OTW?

Job-wise, I'm a law professor. I teach intellectual property courses (trademarks, patents, video game law...) and civil procedure, and run the intellectual property law program at Whittier Law School in Southern California. Before I started teaching, I practiced intellectual property and entertainment litigation at a firm in Los Angeles, California. In addition to teaching, I'm affiliated with a firm, but I do very little client work. I'm also a TV junkie, Sherlockian, crocheter, hiker, gamer and an all-around geek. In addition to volunteering for the OTW, I also volunteer for the Comic Book Legal Defense Fund and the Beacon Society (a Sherlockian literacy organization).

Q: So who exactly comprises the Legal team at OTW? Could you give us a brief rundown of maybe the wide variety of backgrounds that members of the Legal Committee have?

Everyone on Legal (like all the committees) is a volunteer. It's a small committee, and most of the members are attorneys. Of course the Committee Chair, Rebecca Tushnet, is a law professor. Some of the other members work at firms or companies; others have law degrees but aren't practicing law. Most have some background in intellectual property law and experience with either litigation or transactions, although that's not true for everyone on the committee. Right now most of our members are U.S. lawyers, and we're always on the lookout for good people with expertise in non-U.S. law.

Q: How long have you been with OTW?

I've been a member for several years, but didn't volunteer until joining Legal about 3 years ago.

Q: How are you enjoying your time so far?

I love being involved with the OTW. I'm an avid TV watcher and long-time fan in various ways, so fandom is close to my heart. And as someone with a background in intellectual property law, I'm particularly passionate about supporting fan expression and care deeply about the OTW's mission of fan advocacy. I love that fandom is a community of communities, and I love that there's a resource that can help fans in the ways that the OTW does. So really, I feel privileged to be able to contribute my experience and expertise to the organization. I'm also glad that we have other great people on Legal, so no single person has to do all of the work!

Q: What is a current project that Legal is working on now, and what significance does it have with transformative works?

Earlier this year, the OTW testified before a Copyright Office committee regarding an exemption to the Digital Millennium Copyright Act. The DMCA bans circumvention of anticopying technologies (like the copy protection on DVDs) regardless of the purpose for circumvention and even if you make a fair use. The Copyright Office can make temporary exceptions to this rule when it interferes too much with lawful uses, including fair uses. Several years ago--partly in response to advocacy from the OTW--the Copyright Office instituted an exception allowing people to rip DVDs to make non-commercial, transformative videos. Since instituting that policy the Copyright Office has been scheduled to reexamine it. The reexamination happened earlier this year, and we provided information and advocacy to encourage the Office to continue the policy and expand it to reflect new technologies. My role in that project was relatively small; I commented on some of the drafts, and attended one of the hearings and reported back to the committee. As I listened to the Office's questions at the hearing, I was struck by how important our testimony was to helping them understand what vids and vidders do, why vids are valuable expression, and why vidders need legal access to high-quality source material.

The best news of all is that just a few days ago, the Copyright Office released its decision, and it has recommended an extension of the policy exempting noncommercial, transformative vid-making from the DMCA's anticircumvention provisions. Success!

Q: Aside from the current project, what are some issues or projects that frequently get sent to Legal?

What doesn't get sent to legal? Our informal mantra is "If, at any point, you wonder whether you should send something to Legal, you should send it." And we're very glad that the organization as a whole has taken that to heart--better to ask and learn that there's no problem than to learn too late that there was one! So we handle lots of internal questions about what various other committees are doing. We also handle inquiries from fans and others with fannish projects asking for legal advice, information on the relevant laws, or help responding to take-down requests. Often, the questions are outside the OTW's mission, in which case we try to refer the questioners to people who can help them.

Q: Favorite legal project of the Legal Committee?

The DMCA exemption one, I think. But I also love that we're a resource for fans with questions about transformative works--whatever those questions might be.

Q: As a lawyer, what do you find most fascinating about the law related to transformative works?

That's one of those questions I could wax rhapsodic about for far longer than anyone wants to read. Law professors tend to focus on particular topics when they write articles--publish or perish!--and my scholarship focuses primarily on settings in which intellectual property law doesn't necessarily promote creation and innovation. Fandom is one of those areas--huge communities of people create fan fiction without any desire for payment or exclusivity. They create for self-expression, for community, for recognition...for all sorts of reasons that have nothing to do with intellectual property protection. I'm interested in the way that fandom creates its own rules and customs, different from the rules of formal intellectual property law, and the ways in which those rules govern behavior even more powerfully than law does. So I guess what I find most fascinating about the law related to transformative works is how the law influences, but doesn't necessarily govern, fan behavior.

So that's my rhapsodic answer. My practical answer, informed by my work with the OTW, is that one of the things I find most fascinating about the law related to transformative works is how vigilant we all need to be in order to protect our right to express ourselves.

Q: Lastly, do you have an OTP? And if yes, then who!

We are all products of our youth: my OTP is probably MacGyver/Pete Thornton. But the better answer is that I am a total sucker for chosen family and the "I would die for you" friendship.

ORGANIZATION FOR TRANSFORMATIVE WORKS
BOARD OF DIRECTORS

MINUTES OF THE REGULAR MEETING
August 4th, 2012, 14:00 UTC

PRESENT: Ira Gladkova, Nikisha Sanders, Jenny Scott-Thompson, Kristen Murphy.

GUESTS: Eylul, sunusn, Aja, FishieMishie, James_.

ABSENT: Julia Beck, Naomi Novik, Francesca Coppa.

DECISIONS TAKEN SINCE THE LAST MEETING

1. Approved a new staff member for Comms.
2. Approved an expense from Systems to use the managed firewall services from our colo host, as a setup cost of $100 and monthly fee of $50.
3. Approved two new staff members for Wiki with MediaWiki PHP experience.
4. Discussed board job description and minimum standards of work.
5. Discussed org structure.
6. Approved in principle a proposal from Comms for a video and podcast, and asked them to give us more details.
7. Discussed a proposal for sharing individual board member opinions as part of major decision announcements on the OTW blog.

OPEN SESSION

1. Elz proposed on All-chairs mailing list that we add in some time for giving recognition to folks for help/work at the org wides. We did in the last one and it went reasonably well from a facilitation standpoint. We discussed how to balance positive celebration with constructive criticism, and agreed to continue the recognition time.
2. Category Change are preparing for a public announcement.
3. No update on the meta on AO3 discussion yet, as it is still being debated on the mailing list.
4. Webmasters presented a proposal for managed Drupal hosting. tw.org's migration to the newest version of our Content Management System has been delayed due to concerns about the resourcing that would be required to handle the upgrade. As such, we are considering engaging a vendor to 1) handle the upgrade process and 2) take on primary responsibility for security and other upgrades going forward. We will vote over email, to give people time to read it properly.
5. Emerita and advisory board proposals are being discussed via email. Concerns were raised by staff after the last minutes, and these are addressed in the draft already.

CLOSED SESSION

1. We approved Tara as new chair for Grants, as Kate has had to step down.
2. megcwalsh has stepped down as lead of the Strategic Planning workgroup. We agreed to appoint Anna as the new lead, and will discuss staff position of workgroup leads on the mailing list.
3. If we do designate workgroup leads as staff, it will only apply from the point they became lead forward. It would not be retroactive to before they were lead or apply to non-lead workgroup members.
4. We reminded each other that appointments to the board are exempt from the eligibility requirements for elections, and that being on board qualifies as a staff position with regard to future elections.
5. Some staff were upset by the bylaws change going public without a prior warning to staff. We agreed to apologise for that, and work with Comms to manage the balance between giving staff warning, and giving transparent public notice as rapidly as possible.

The meeting was adjourned at 16:00 UTC.

Minutes approved by the board on 11th August.

ORGANIZATION FOR TRANSFORMATIVE WORKS
BOARD OF DIRECTORS

MINUTES OF THE REGULAR MEETING

May 26th, 2012, 14:00 UTC

PRESENT: Naomi Novik, Julia Beck, Kristen Murphy.

GUESTS: Aja, Katherine Darnell.

ABSENT: Nikisha Sanders, Ira Gladkova, Jenny Scott-Thompson, Francesca Coppa.

DECISIONS TAKEN SINCE THE LAST MEETING

1. We agreed to open a second bank account with branches nearer our treasurer.
2. We agreed to reprint the tote bags for donation premiums.
3. We also approved 3 new staffers for Translation.

OPEN SESSION

1. Wiki are progressing with the forums
2. Discussed options for outside coding help:
1. Hiring employees is a massive commitment, huge complex overhead (taxes, insurance, management), and also just too expensive
2. Hiring indie contractors for specific assignments is cheap, difficult, unreliable, slightly less but still bad overhead & tax issues
3. Hiring developers via a reliable consulting company is expensive, but no overhead/tax issues and all-round easier
3. We agreed that that basically option #3 is the only realistic one at the moment, but it's a pretty big paradigm shift, and we could not afford to hire someone for anything like full time. This would not be a way of replacing our own volunteers, it would be a way to accomplish a particular task or provide a short-term resource to our own people.
4. It would be a new element in the org ecosystem, so we would need to consider the implications first, and think about how it integrates.
5. We considered how to revive the Curriculum project, to consider, support and expand educational resources related to fandom, including EFF's similar work.

CLOSED SESSION

1. We raised the idea of adding two seats to the board, to cope with liaising for the increase in committees as the org has grown since its start 4 years ago. We will consider more in future sessions.
2. We discussed the general idea of personnel conflicts and when staff have to be moved around the org, and how this could be handled better. In particular, we know some volunteers are intimidated by the process and worried or scared about what might happen to them, and we'd like to make the process clearer in an effort to ameliorate this.

The meeting was adjourned at 15:45 UTC.

Minutes approved by the board on 10th July.