Legal Advocacy

  • OTW Files Amicus Brief in Lenz v Universal

    By Claudia Rebaza on Monday, 16 December 2013 - 6:39pm
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    On Friday, the OTW filed an amicus brief in the case of Lenz v. Universal. This long-running case received a lot of press a few years ago. Universal Music Group had issued a DMCA takedown notice claiming copyright infringement based on Stephanie Lenz's YouTube video of her toddler dancing to Prince's song "Let's Go Crazy." The court held that Ms. Lenz's posting was a non-infringing fair use of the song. At this point, the case is on appeal to the Ninth Circuit Court of Appeals. The main issue before the court is the degree to which rights holders like Universal have to consider whether something is fair use before issuing a takedown notice.

    Our brief, written by the Stanford Fair Use Project and joined by Public Knowledge and the International Documentary Association, argues that the law is designed to deter overreaching takedowns. The statute requires the sender of a takedown notice to affirm under penalty of perjury that the use is not “authorized by law,” and punishes misrepresentations. As a result, we argue, the law requires rights holders to form a good faith belief about whether a use is fair before issuing a notice under the DMCA--and should punish those who take a "shoot first and ask questions later" approach as Universal did for Ms. Lenz's video.

    Special thanks go out to the many fans who submitted their stories of how DMCA takedown notices affected their lives--they helped us craft arguments about how powerfully people can be harmed by overreaching takedown demands.

    For more information, see the EFF's write-up about the case and our brief. A PDF of the OTW's brief can be found at the OTW website.

  • Watch OTW Legal Representing Fans in Washington

    By Claudia Rebaza on Wednesday, 11 December 2013 - 5:14pm
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    • 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."
  • OTW's Legal Committee Comments to the NTIA/PTO

    By Claudia Rebaza on Sunday, 17 November 2013 - 4:47pm
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    In October 2013, the U.S. National Telecommunications and Information Administration (NTIA) and the U.S. Patent and Trademark Office (PTO) sought public comments on copyright policy issues, including the legal framework for the creation of remixes. Our Legal Committee used many stories submitted by fans to explain to these agencies, which are likely to propose new legislation about copyright, why any change in copyright law should favor freedom to make transformative works.

    The document they submitted is now available for viewing on the OTW website (PDF format) and it contains many striking fandom experiences.

    The OTW's Legal Committee argued that fair use remains central to remix cultures. Fandom builds communities and enables joys that can't be found in commercialized spaces. For example, Amazon’s Kindle Worlds is a commercial innovation that uses the language of remix, but fails to provide its benefits.

    The OTW concluded that "However the copyright reform project proceeds, it is vital that it not ignore the legitimate interests of the remixers who are working in every form of media. They are the future of our culture. Artists, not lawyers, should determine the shape of works to come."

    The process of soliciting comments was very moving and meaningful for the Legal Committee. The stories Legal received reinforced the OTW's knowledge that the opportunity to create and consume fanworks has made an incalculable difference in people’s lives, something which we presented in the above document. Our Legal Committee appreciates the contributions of everyone who sent in a story and thanks you for your help!

  • Important Developments in Fair Use Cases

    By Claudia Rebaza on Friday, 15 November 2013 - 4:34pm
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    On Thursday, November 14, 2013, Judge Denny Chin finally issued a ruling in a case begun in 2005 when a writers' organization sued Google over their book-scanning project. The OTW was pleased to see that there is a lot in the case that supports fans engaged in creating and sharing transformative works, and sites (like An Archive of Our Own) that host their works.

    While the case itself concerned Google’s scans of entire books - both fiction and nonfiction, both public domain and still protected by copyright law - the judge’s analysis of why Google Books are transformative and protected by Fair Use considerations is in line with the OTW’s longstanding analysis of Fair Use.

    Google Books was sued by book publishers who felt that Google’s scans violated the copyrights they had in the books. Google put the contents of millions of books into a database that users could search, but Google Books would only display a page or two of a book’s contents; there were no ads on Google Books pages that hosted scans.

    Google argued that scanning the books and hosting the contents in a searchable database was transformative and thus did not infringe on the publishers’ copyrights. The court applied the four-part standard used to determine whether a work is transformative or infringing, and held that most of the factors strongly favored Fair Use.

    The court said that Google Books “advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.”

    While the case itself made no mention of fanworks, the court's reasoning about the transformative benefits of Google Books may apply at least as much--if not more--to fanworks. The court noted that one of the reasons Google Books was transformative was because it "adds value to the original" and allows for "the creation of new information, new aesthetics, new insights and understandings.” In addition, the court considered ways in which Google Books allow people to discover books they were not already aware of. As the court explained, the fact that “Google Books provides a way for authors' works to become noticed” provided strong support for the court's Fair Use decision. The same arguments undoubtedly apply to fanworks, which create new information, aesthetics, insights, and understandings to their source material, and attract fans to authors, music, shows, movies, games, and other works they might not have discovered without fandom connections. Thus, although this decision doesn't relate directly to fanworks, it does embody legal principles that the OTW has long supported.

    The Author’s Guild, the group that sued Google, said that they would appeal the decision -- so this long-running case may continue on in the courts. However, the ruling in a companion case, of Authors Guild v HathiTrust, which is also being appealed, suggests that fair use arguments are being looked upon favorably by the courts, whether it's a non-profit entity, such as a group of libraries, or a for-profit entity such as Google. In addition, this week the U.S. Supreme Court let stand an appellate court ruling in Prince v. Cariou, which supports the rights of remix artists under fair use.

  • Proposal for a Small Claims Copyright Process

    By Claudia Rebaza on Wednesday, 6 November 2013 - 8:01pm
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    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.

  • Comment Period Extended for Fandom Skills Stories

    By Claudia Rebaza on Sunday, 13 October 2013 - 3:21pm
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    On October 3, the OTW's Legal Committee asked for fans to submit stories of how they developed new skills or knowledge as a result of their fandom involvement.

    We asked for people to contribute stories until October 10th since Legal had to submit comments by October 14th. This deadline has been moved forward to November so we can now continue to accept stories until October 30.

    If you would like to submit your own story, please use Legal's contact form. And thank you to all those who have already participated!

  • Your Personal Fandom Stories Are Urgently Needed!

    By Claudia Rebaza on Thursday, 3 October 2013 - 4:44pm
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    The OTW's Legal Advocacy project has stood up for fans' rights to create and share, helping individual fans with legal questions and making fans' collective voices heard in court cases.

    Recently, our Legal Committee asked for fans to help by providing either media stories or personal stories of takedown requests and actions that have made fans hesitant to create or share fanworks.

    Your help is needed again! The U.S. National Telecommunications and Information Administration (NTIA) and the U.S. Patent and Trademark Office (PTO) are seeking public comments on copyright policy issues, including the legal framework for the creation of remixes. The window for these submissions is short -- they must be in by October 14, so we need to act now.

    The Legal Committee is thus looking for stories of how fandom has helped fans in day-to-day life. We need you to share your individual stories with concrete examples. For example, perhaps being in fandom has helped you to learn a language, helped you in school, or helped you improve skills that you use elsewhere — skills such as writing, video editing, coding websites, audio editing, or anything else. We don't need personal information from you, but the more specific the story, the better.

    Our attorneys will use your stories to explain to these agencies, which are likely to propose new legislation about copyright, why any change in copyright law should favor freedom to make transformative works. We succeeded before with the DMCA remix exemptions, but only because we were able to share specific stories from vidders. Now we need stories of all kinds.

    We also need them soon! Please provide us with your stories by October 10, as our team needs time to work with them before the submission deadline of the 14th.

    To submit your story, please use the Legal Committee's contact form.

    And if the OTW's legal advocacy work is important to you, please consider making a donation to support our ongoing efforts. Thank you!

  • Legal Needs Your Help!

    By Claudia Rebaza on Sunday, 22 September 2013 - 5:42pm
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    The OTW's Legal Advocacy project engages in legal cases and responds to fan requests that involve matters of U.S. copyright and fans' rights to engage in fan practices such as creating fanworks.

    But now our Legal Committee needs your help. We are helping with some (confidential, for now) court filings and would like to use the following information to help the drafters shape the arguments. We might possibly include fans' stories of facing legal difficulties, but would only do that with express permission from the fan.

    What we need is the following:

    (1) DMCA take-downs. We'd like to hear from fans who have received DMCA takedown requests for their transformative fanworks and have had to decide whether to counter-notify that their fanworks are fair use and therefore don't violate copyright law. We'd like to hear what they decided to do, why they made that decision, and what the outcome was for them.

    AND

    (2) Fans who’ve been told that their transformative fanworks violate someone’s rights of publicity, or who have considered rights of publicity in deciding whether or not to make a fanwork. We're particularly interested in published accounts about the relationship between fandom and rights of publicity.

    In both cases, all communications will remain entirely confidential. We won't tell anyone's story or use anyone's name (or pseudonym) without their express permission. But we want to make contact with people who have faced these situations -- their stories will help us make legal arguments that, we hope, will prevent future challenges and take-downs of fans and fanworks.

    If you have experienced either of these two things, or encountered news items about either of them, please contact Legal. If you know of someone who has experienced a DMCA takedown request, please direct them to this post. We need to hear from people by October 11. Thanks for your help!

  • No New SOPA for Fanworks

    By Claudia Rebaza on Tuesday, 27 August 2013 - 3:41pm
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    Back in 2011, legislation was introduced in the U.S. House of Representatives that targeted "piracy" of copyrighted works. These were known as SOPA and its U.S. Senate counterpart, PIPA. The OTW has written about the issue several times. Thanks to activism on the part of Internet users and the participation of various large, well known online sites, the legislation was shelved.

    Recently concern has emerged among fan communities that the legislation is back and will result in radical changes in how fans will be able to create and share fanworks. While it's wise for fans to be vigilant in protecting their rights, it's also important to avoid misinformation.

    The current alarm seems to be in response to a paper published by the U.S. Commerce Department earlier this summer. In this paper they have asked Congress to amend the Copyright Act itself to make it a felony to reproduce or distribute at least 10 or more copies of copyrighted works with a total retail value of at least $2,500. In other words, their stated intention is to match up aspects of 20+ year-old laws to make them more consistent with each other when applied to downloading and streaming. Whether that’s a good idea or not is outside the OTW's focus on fanworks, because streaming of fanworks would still be protected under Fair Use as transformative works. To be clear, the revision proposed by the Commerce Department may have been included as part of SOPA, but nowhere in the recent Commerce Department paper did they ask Congress to bring back SOPA wholesale, with its broader provisions about blocking websites.

    Only the U.S. Congress can create legislation by writing a bill; the Commerce Department is an administrative body and it can’t make something a felony, although it can influence legislation in various ways, including through the U.S. Trade Representative's negotiations with other countries. Assuming that legislation was written and brought before congressional committees, there would be an opportunity for anti-SOPA forces to weigh in. Further, if this particular Commerce Department proposal did become law, it would have no direct impact on fanworks or transformative works because of the fair use provisions of the Copyright Act.

    To be clear, the provision proposed by the Commerce Department could have some impact on fandom activities. If it were to become law it could affect, for example, live group viewings of TV shows or films through unlicensed sites. It could also potentially affect whether certain websites implemented screening mechanisms that didn't allow for fair use, though other aspects of copyright law are likely to be much more important than a change in criminal penalties. But even if the proposed law were enacted, it wouldn't have any direct impact on transformative fanworks like those hosted by the AO3. Such works aren't, and wouldn't become, actionable infringement because “fair use [including in a transformative work] is a lawful use of copyright.”

    If you have questions about legal matters related to fanworks and fan activities, you can always send a message to the OTW's legal team (and thank you to those who alerted us to this matter!); please get in touch with us if you see statements that a certain proposal or piece of legislation would force the OTW and/or AO3 to shut down. We are advocates for and about fandom, and we will protect fans' rights to be creative and share their creativity noncommercially, and work to stop or overturn any laws that would block fans from doing so. You can also subscribe to OTW News through the platform of your choice to stay informed.

  • The OTW invites you to Comic Con San Diego

    By Claudia Rebaza on Wednesday, 26 June 2013 - 5:15pm
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    San Diego Comic Con (SDCC) is a major multifandom event taking place each July; this year it's July 18-21. For the first time, the OTW will be covering SDCC, from the convention floor to Hall H lines, from the fan panels to tv, movie and author press rooms. Legal Committee staffer Heidi Tandy will be focusing on legal aspects of fandom, fannish interaction with content creators and other issues of interest to all fans, including fanfic writers, fanartists and vidders.

    In addition, the OTW is hosting a party on Wednesday, July 17, 8:00-9:30 p.m. PDT at the Tequila Bar & Grille at the San Diego Marriott Marquis & Marina (333 West Harbor Drive, San Diego, CA 92101 map and directions here. There will be complimentary margaritas, sodas, chips & salsa, a few rounds of Cards Against Humanity, giveaways and other meet & greet moments designed to welcome everyone to San Diego and Comic Con.

    We're requesting a voluntary donation of $5 to attend. You don't need to be attending Comic Con to join us, although the Marriott is adjacent to the Convention Center so anyone coming from the off-site SDCC hotels via Con Bus can reach it easily.

    We'd also like to know what SDCC participants you would like Heidi to speak to and what questions you would like her to ask? The ComicCon schedule will become available around July 4, and we will send out another reminder after it is posted.

    Let us hear from you! Just keep in mind that Heidi can only be in one place at one time, and that she can speak with only so many people in a single day. She is also scheduled to appear on two panels during the con. The first is a panel for the forthcoming SmartPop book Fic: Why Fanfiction Is Taking Over the World, for which she and other current or former OTW staffers have contributed. Heidi will also be moderating a Harry Potter panel on Sunday afternoon. However, we would like to include as many of your suggestions as possible.

    Some planned questions currently include:

    • Have you heard of or planned anything for your property to be part of Amazon's Kindle Worlds project?
    • How involved are you with tie-in creations generally, and do you see fan work to be different?
    • How would you have answered this question 3 years ago? What about 8?
    • How much regular contact do you have with legal staff in your work regarding fan creations or other things besides your own content?
    • For fans: Have you ever received a C&D? What did you do? What would you do if you got one now?

    We will be publishing stories from her SDCC visit in the week after the event (starting after July 25) in both print and video form - and she'll liveTweet as much as possible from the halls of the San Diego Convention Center through the OTW News twitter account.

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