Legal Advocacy

  • Copyright Week: Fair Use

    By Claudia Rebaza on Friday, 17 January 2014 - 5:18pm
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    Copyright logo set on a yellow pixelated background

    The week of January 13-18 is being used by a number of legal advocacy organizations in the United States as a week of action to speak out about potential changes to copyright law. The dates were chosen so that the week's conclusion on Saturday the 18th coincides with the anniversary of the SOPA/PIPA blackout in which many organizations and companies, large and small, worked together to protest this misguided legislative proposal.

    On each day this week, organizations will focus on a different aspect of copyright. Today we are focusing on Fair Use. The OTW was founded on the idea that fanworks are creative and transformative, and therefore are protected by Fair Use under US law. For that reason our Legal Advocacy project has been proactive in protecting and defending fanworks from commercial exploitation and legal challenge.

    In the United States, Fair Use is a part of the Copyright Act, which lists four factors the courts can look to in determining whether a work is Fair Use; they include (1) the purpose and character of the use (commercial nature, educational purposes, etc.); (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole and (4) the effect of the use upon the potential market for, or value of, the copyrighted work. Courts have addressed these issues many times over the years, and many recent cases involving Fair Use have expanded the types of works that can take advantage of Fair Use protections. Only last year, the Southern District of New York found that Google Books' database of complete scans of fiction and nonfiction books was a transformative work, and Fair Use, because it “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.”

    This holding is in line with the OTW's longstanding view of transformative works and Fair Use, as our reading of U.S. law is that fan fiction and often other types of fanworks advance the progress of the arts (and sometimes sciences too), while respecting the rightsholders' ownership and ability to make commercial use of their intellectual property. Fair Use principles permit fans to create a wide range of transformative works without first seeking permission from rightsholders--including fanfic, fanart, vids, games, cosplay, fan films, ballets and stage plays. Noncommercial transformative works are generally permitted by Fair Use, but a lot of works within the Fair Use sphere are not also defined as transformative works.

    The OTW's various projects all feature the amazing works that can be created and shared under the umbrella of Fair Use, whether remembered in Fanlore, preserved by Open Doors, archived on the AO3, explored in Transformative Works and Cultures, or featured in our Test Suite of Fair Use Vids.

    Copyright Week is an important event for discussing how these laws and regulations impact citizens, but it's also an important opportunity for you to make your voice heard. You can help by:

    1) Visiting the Copyright Week site and signing on to endorse the principles being expressed by the OTW and other organizations.

    2) On that page you will find links to posts made by other groups that support a larger public domain, broader fair use, and open access. You can support the OTW or other groups working on your behalf.

    3) Retweeting, reblogging, or linking to posts about the issues being discussed during Copyright Week.

  • Copyright Week: Open Access

    By Claudia Rebaza on Wednesday, 15 January 2014 - 7:24pm
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    Copyright logo set on a yellow pixelated background

    The week of January 13-18 is being used by a number of legal advocacy organizations in the United States as a week of action to speak out about potential changes to copyright law. The dates were chosen so that the week's conclusion on Saturday the 18th coincides with the anniversary of the SOPA/PIPA blackout in which many organizations and companies, large and small, worked together to protest this misguided legislative proposal.

    On each day this week, organizations will focus on a different aspect of copyright. Today we are focusing on Open Access. Different entities define Open Access differently, but among its core principles is that the results of publicly funded research should be made publicly available, for free, online and in usable form. Open Access doesn't necessarily mean that everything in the world should have to be available for free--and the OTW supports the ability of fans to decide who should see their work and how their work can be used. But the OTW also believes that platforms should exist on which scholarly material is available and easily usable and quotable at no cost.

    The OTW has walked the walk of this philosophy for five years with its publication Transformative Works and Cultures (TWC). Its editors and volunteers offer their services for free, as do all the OTW's staff, and they are committed to ensuring that the journal's content can be accessed by all. As TWC editor Karen Hellekson has written, the academics who have tried to move away from paywalled sites for academic research and print publications have found many barriers in their way.

    "When I fill out forms, surveys, and index submission forms related to TWC and its practices, it becomes clear how strongly the print model affects every aspect of what is considered the norm for publishing. I skip entire sections: I don’t know the number of subscriptions because we don’t use a subscription model. I can’t estimate readership because many of the user accounts are obviously spam accounts, and plenty of readers never create a user ID. We don’t offer different levels of access to different people. We don’t have office expenses because we don’t have an office, instead using freeware OJS to shepherd copy through the publication process. I can’t estimate readership for an essay because our copyright permits the author, or anyone else, to repost, which bleeds off readers and thus they aren’t counted by the software. We have no income from reprint or author fees because we don’t charge those fees. All the questions meant to assess readership and subscriptions are, with an open access model, nearly impossible to estimate. Ironically, the traditional journal-publishing world seeks to maximize impact by minimizing access, even though study after study has shown that people are far more likely to read and cite publications available in full online."

    This week marks a year since the death of Aaron Swartz, an activist committed to the principles of Open Access. At the time, the OTW's Fanhackers editor, Nele Noppe, wrote a post about why fans should be concerned about this issue, and how the about-to-launch Fanhackers project represented the OTW's commitment to this issue on behalf of fans and academics.

    "[W]e're launching a new project to expand our efforts toward making research truly useful and relevant beyond the borders and acafannish audience of TWC. We'll experiment with concrete ways to make research on fans more accessible and usable, encourage researchers to publish their work in an open way (no easy task when the closed print model carries prestige, which in turn can be used toward promotion and tenure), and give any support we can to other projects that share those goals.

    In 2008, Aaron Swartz articulated the feelings of many when he wrote in his "Guerilla Open Access Manifesto" that keeping academic research behind pay walls is "a private theft of public culture" that should be resisted by all means necessary, especially by the researchers who can actually access all those locked papers. We call on all academics whose research is relevant for fans to make sure that their results can actually reach the people who need information."


    For more about this week of action, visit the Copyright Week site, where links are being collected to various posts, whitepapers etc., and users and organizations are encouraged to endorse the principles. Participating organizations include Public Knowledge, Creative Commons, library associations, Ownership Rights Initiative, iFixit, and Wikimedia among others.

  • Copyright Week: Building a Robust Public Domain

    By Claudia Rebaza on Tuesday, 14 January 2014 - 5:56pm
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    Copyright logo set on a yellow pixelated background

    The week of January 13-18 is being used by a number of legal advocacy organizations in the United States as a week of action to speak out about potential changes to copyright law. The dates were chosen so that the week’s conclusion on Saturday the 18th coincides with the anniversary of the SOPA/PIPA blackout in which many organizations and companies, large and small, worked together to protest this misguided legislative proposal.

    On each day this week, organizations will focus on a different aspect of copyright. Today we are focusing on the importance of building and maintaining a robust public domain. A robust public domain is important for allowing public access to information and material, and also for promoting creativity.

    The term public domain means different things to different people, but it generally refers to works that are free to use and copy because they aren't protected by copyright exclusivity. This includes works that don't fall within the scope of copyright protection--for example, copyright doesn't protect ideas, only expressions--and it it includes works that were once protected by copyright, but whose copyright protection has expired. There are many famous examples of works that are in the public domain. Shakespeare’s works, Beethoven’s symphonies, and many silent films are all in the public domain. The expansion of the public domain is important because it allows for free access to a greater amount of works and information which can then be used to create new works. The OTW is a strong supporter of people's right to create new works based on old ones--and the public domain is an important piece of that.

    The public domain is itself threatened as countries extend copyright duration and the scope of copyright protection. In the United States, copyright expiration is very complicated, and depends on considerations like when a work was created, where the work was first published, and when (and if) the creator died. U.S. Copyright on new works lasts for 70 years after the death of the creator. If the work was a work for hire (e.g., those created by a corporation) then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter. This long term is the result of decades of legislative lengthening of copyright: The very first U.S. copyrights lasted only 14 years with the ability to renew the copyright for another 14 years.

    According to Bernt Hugenholtz and Lucie Guibault*, the public domain is under pressure from the "commodification of information" as items of information that previously had little or no economic value have acquired independent economic value in the information age, such as factual data, personal data, genetic information, and pure ideas. The commodification of information is taking place through intellectual property law, contract law, as well as broadcasting and telecommunications law. While there has been good news in regards to public domain with the recent Sherlock Holmes decision, the public domain is still threatened and should be protected.

    There are numerous important works which are in the public domain and have current remakes or remixes. One example is the TV show Sleepy Hollow, which is based on Washington Irving’s 1820 short story, as was the 1999 Tim Burton film of the same name. Washington Irving's own story may have been based on or inspired by Germanic folktales like The Wild Huntsman. Many of Disney's famous works were also based on folktales, and these have not only been used by numerous creators, but Disney itself has remixed a number of them in their TV series Once Upon a Time. The works of Shakespeare have been utilized many times, in many ways, including the play by Tom Stoppard, which in turn has its own fanworks.

    Cultures across the globe have been enriched by the use of their heritage as displayed through the medium of stories, religion and lore. New versions of characters and tales appear regularly and are able to garner new readers, watchers and creators.

    The OTW also supports the creation of transformative derivative works as fair use--a topic we'll be discussing in a future Copyright Week post. But broad Fair Use privileges are not a substitute for a robust public domain. Over time, works and characters become part of the public consciousness and should be uinambiguously free, not only for noncommercial transformative use, but also for copying and commercial use. A robust public domain permits people to have access to consume and create based on works they might not otherwise be able to afford, and allows people to create without having to wonder whether their creations are fair use.

    *Guibault, Lucy; & Bernt Hugenholtz (2006). The future of the public domain: identifying the commons in information law. Kluwer Law International.


    For more about this week of action, visit the Copyright Week site where links are being collected to various posts, whitepapers etc., and users and organizations are encouraged to endorse the principles. Participating organizations include Public Knowledge, Creative Commons, library associations, Ownership Rights Initiative, iFixit, Wikimedia, Your Anon News, and SPARC among others.

  • Tell the EU that you want copyright reform!

    By Claudia Rebaza on Tuesday, 7 January 2014 - 7:40pm
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    As many fans know from personal experience, copyright laws and their enforcement can be problematic when it comes to either serving creators or the public well. Currently, some groups in the European Union are looking for public input when it comes to their own experiences with copyright.

    These organizations, such as The Open Knowledge Foundation, are encouraging members of the public to fill out a questionnaire. With these responses they are hoping to begin action on copyright reform.

    "If the Commission gets lots of replies from citizens and NGOs, it must acknowledge that there is high interest in this topic. Only the Commission can start legislative initiatives on the European level, so we need to convince them that copyright reform is necessary."

    A variety of public input is needed to make clear how many ways that copyright can affect individuals on a personal level:

    "Many of us are involved in creative projects that are restricted by the current copyright regime. By sharing your personal issues with copyright in the consultation, you are giving the Commission insight into the wide variety of creative and innovative projects that are affected by copyright, not just those of big business."

    The questionnaire has a total of 80 questions but there is a guide available that will allow people to focus on issues close to their own experiences. Additional organizations are also encouraged to submit replies, but since the organizers are looking for a wide variety of input, interested fans in the EU are encouraged to participate.

  • Free Sherlock! Implications of Summary Judgment in Sherlock Holmes Case

    By Claudia Rebaza on Saturday, 28 December 2013 - 4:19am
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    On December 26, 2013, a U.S. Federal Court issued a ruling about copyright protection in Sherlock Holmes and the Sherlock Holmes stories. The court held that all elements of the Holmes canon that were first introduced before 1923 -- including the characters of Holmes and Watson -- are in the public domain.

    As background: In most of the world, copyright protection has expired in all of Arthur Conan Doyle's Sherlock Holmes canon. This means that in most of the world, Sherlock Holmes, and all of Conan Doyle's stories, are in the public domain and anyone can use them without getting permission. But in the United States, thanks to the Sonny Bono Copyright Extension Act, the last ten Sherlock Holmes stories -- those that were first published after 1923 -- are still protected by copyright. Those copyrights are owned by a company called The Conan Doyle Estate, Ltd. (the "CDE.") The CDE has licensed that copyright to a number of creators who have made recent adaptations of Sherlock Holmes, including Warner Brothers (for the Downey films), CBS-TV (for Elementary), and WGBH (the U.S. distributor of BBC Sherlock). It has also sent "cease and desist" letters to others who have sought to make commercial adaptations of the Canon -- and those letters haven't necessarily distinguished between adaptations of the works still in copyright and those on whom copyright has expired.

    One of those "cease and desist" letters went to Leslie Klinger, a Holmes expert and the author of The New Annotated Sherlock Holmes, who together with author Laurie R. King was preparing to publish an anthology of stories inspired by the Holmes Canon. Klinger fired back, bringing a lawsuit against the CDE, seeking declaratory judgment and claiming the copyright had expired on all of the story elements that Klinger and King wanted to include in the anthology.

    Now, the court has issued a ruling in Klinger's case. The Court’s ruling states, in brief, that all characters and story elements first introduced before 1923 -- including the characters of Holmes and Watson -- are in the public domain, and creators are free to use them without licensing them from the Conan Doyle Estate. The Court cautioned that copyright law still protects elements that appear exclusively in the ten post-1922 stories by Conan Doyle (those that remain in copyright). The CDE has stated that it's considering appealing the ruling, so it's possible that the ruling isn't the final judicial word on this matter.

    In the meantime, what does this ruling mean for U.S. fans of Sherlock Holmes? The case is a victory for Klinger and great news for those who want to commercialize Holmes adaptations, but its impact on fans is, largely, an indirect one. Fans have always relied on fair use principles to support the creation of fanworks. That's still true for most fanworks related to Holmes--copyright not only still protects the post-1923 works, but also (obviously) the sources for many Holmes fandoms, such as the Warner Brothers Holmes, Elementary, and BBC Sherlock. But the fact that the original-recipe Holmes and Watson are in the public domain is still good for fandom: Since most of the traits of Holmes and Watson, and most of the stories, were introduced before 1923, fan creators will seldom have to wonder whether their Doyle Canon fanworks are fair use. And beyond that, it means that the CDE will have a harder time trying to charge licensing fees to commercial adapters of Holmes and Watson. This makes it easier for commercial adaptations to flourish, so in the future, that may mean more Holmes fandoms to draw from!

    The case also has broader implications for U.S. copyright in serialized works. Many now-famous characters were introduced in series that started in the early 20th century, but continued for decades or more after then. This ruling establishes the principle that all of those characters have the public domain more quickly than some had originally thought: once copyright protection expires in the works where those characters were thoroughly introduced, those characters enter the public domain--even if some works featuring those characters (and any new facts about them introduced in the new works) remain protected. This is true not only for Holmes, but also a number of other characters introduced early in the 20th century, such as G.K. Chesterton's Father Brown, Edgar Rice Burroughs' Tarzan, and Agatha Christie's Hercule Poirot...and, notably, Disney's Mickey Mouse.

    For more on this case, and to get a copy of the court's full ruling, see http://free-sherlock.com/.

  • 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.

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