Written by OTW Legal Committee member Sarah Trombley

Apparently, the Internet likes pirates too much (blame Johnny Depp)—now people engaging in Internet activity of which the content industry doesn't approve are being labeled "parasites."

Yes, that's the name of the new IP bill that recently passed the U.S. House of Representatives: the E-PARASITE ACT. The OTW, like many other organizations (the Electronic Frontier Foundation weighs in with a post here), is concerned about the extraordinary overreaching of this proposed bill. In short, this bill would cut Americans off from so-called "foreign infringing sites" by, effectively, forbidding your ISPs to connect you to the sites and forcing search engines not to link to the sites. Not for nothing has this been called "the Great Firewall of America." In the United States, we have long realized that it's not fair or wise to force ISPs or search engines to be responsible for the data they transmit; instead, infringing sites themselves must be held accountable for their own actions. The "E-PARASITE" act permits the equivalent of cutting off everyone's telephone access to a number—and taking the number out of all directories and search engines!—because someone who uses it is accused of breaking a law. It's a terrible bill.

The OTW is particularly concerned with additional provisions tucked into the bill, which appears to significantly expand the definition of criminal copyright infringement. Among other things, the bill provides special protection for works "being prepared for commercial dissemination," which includes movies that are playing in movie theaters but aren't yet available on DVD or other formats. For fan-artists and others engaged in transformative works, it's often vital for them to be able to create their art while the work they're responding to is actually part of the national conversation--and that's when it's in theaters, not six months to a year later when the DVD is released. If Jon Stewart wants to comment on a movie, he doesn't have to (and wouldn't) wait til it comes out on DVD; transformative artists' works are no different from his commentary. And that means they need access to "cam" or other copies of a work right away. (A vivid example is Sloane's Star Trek Dance Floor, where she used cam footage of the rebooted Star Trek movie to illustrate her point "that [the director] had...largely ignored women." When talking to people at the time of the movie's release, Sloane said she "was surprised how many people didn’t seem to think that was a problem, or even that the issue existed"--and so she made a vid, using footage that, in the bill's terms, was "prepared for commercial dissemination," as a way of participating in the conversation as it was happening, not at some comfortably distant point in the future.)

Like the DMCA itself, this bill is an example of the industry practice of trying to cut down on fair-use rights, not by limiting the rights themselves, but by making it impossible to exercise them. Supporters of the right to produce transformative work shouldn't stand for this kind of subterfuge.

A final, technical note for the lawyers: while I'm not an expert in this area, this bill seems to have potentially serious due process problems, in that it appears to expand "minimum contacts" beyond what the Supreme Court presently allows. But I'll leave that to others.

The Colin McEnroe Show on WNPR, Connecticut Public Radio, is doing an hour-long show on fan fiction today, Tuesday, July 19th, from 1 to 2 PM ET.

Guests will include Lev Grossman, who wrote a recent article about fanfiction for Time Magazine, OTW Legal chair Rebecca Tushnet, and Harry Potter fan fiction writers Beth H and Femmequixotic (both former OTW volunteers!) They'll also be taking phone calls from listeners, so if there's a point you always wanted to make about fanfiction: now's your chance!

You can hear the show on the radio if you're in Connecticut, parts of Rhode Island and New York, or you can listen live on the web or download the podcast after the show airs at the CPTV/WNPR website.

Kudos to Patrick McKay for winning Public Knowledge's "Copyright School" Video Challenge, a contest that asked remixers to come up with a more balanced education video than YouTube's "Copyright School" (which, notoriously, featured a squirrel in a pirate hat.) You can see the video here:

by Rachael Vaughn and the OTW Legal Committee

Last week, YouTube announced revisions to its copyright policy, which may impact vidders and other fans using YouTube. In short, YouTube has eliminated its one-size-fits-all three strike termination policy in favor of a revamped Copyright Education Center and an official Copyright School. Unfortunately, the Copyright School is presented in the form of a very one-sided tutorial cartoon that attempts to summarize a complicated and constantly evolving area of law using a teal squirrel in a pirate hat.

Before discussing the content of the Copyright School video, it is useful to review how YouTube’s policy has actually changed. Known as the “three strikes rule,” YouTube’s old policy stipulated automatic suspension of user accounts receiving three uncontested copyright takedown notifications. It is important to differentiate between copyright takedown notifications and content ID matches (http://www.youtube.com/t/copyright_strike), which do not result in “strikes,” but may lead to uploads being automatically blocked. Only notifications from a copyright owner result in strikes. YouTube’s new policy retains the basic “three strikes” framework, but adds two additional provisions. First, if a user receives a copyright notification, the user is required to view the Copyright School video and pass a corresponding quiz. Second, YouTube may remove strikes from an account if the user: (1) successfully completes Copyright School; and (2) has demonstrated good behavior over time.

As characterized in an informative post from EFF, the end result of the policy change is a bit of a “mixed bag” for YouTube users. The new rules will arguably result in fewer account suspensions, but at what price? In exchange for removing the infamous strikes that lead to account suspension, users must graduate from a Copyright School with a questionable pedigree.

Although the Copyright School video does not explicitly make statements that are legally incorrect, it does employ a number of traditional scare tactics to dissuade users from uploading certain types of content. Mashups and remixes are two examples of content that is portrayed in a particularly unfavorable light. In the video, the pirate squirrel is repeatedly warned by a voice-of-god narrator about the harsh penalties associated with uploading video that is not 100% original. When the poor little guy tries to make a suitably original video by recording a band performing in a park with his phone, he is told that he will be subjected to a variety of punishments including jail, lawsuits, and getting smashed over the head with a giant gavel.

The video’s explanation of fair use is relegated to a short section in which the narrator reads portions of the statute in a humorously fast voice while the animations on the screen are replaced with cramped text, suggesting that fair use is just mumbo jumbo that no ordinary person should try to understand. Users are advised that if they do not understand fair use, that they should seek the counsel of a copyright attorney. As one blogger points out: “all children have copyright lawyers, so this is a workable solution.” (http://copyrightlitigation.blogspot.com/2011/04/fair-use-fridays-youtube-flunks.html)

Generally YouTube’s Copyright School does a fantastic job educating users about what cannot be done with copyrighted content. Unfortunately, it neglects to acknowledge that there are many situations in which copyrighted content can be lawfully transformed to further the promotion of science and the useful arts. In those situations, YouTube’s copyright dispute processes and the DMCA counter notification procedures are available. For more information, EFF’s Fair Use Principles for User Generated content and the Center for Social Media’s code of Best Practices in Fair Use for Online Video provide useful principles for ordinary videomakers considering fair use.

But that might be telling stories out of school.