Legal Advocacy

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The OTW believes that fanworks are creative and transformative, core fair uses, and will therefore be proactive in protecting and defending fanworks from commercial exploitation and legal challenge. This help will not be limited to those fans or projects directly connected with OTW.

Our work includes:

Comments to the U.S. Intellectual Property Enforcement Coordinator

  • Public Knowledge Joint Strategic Plan (PDF), submitted October 2015
  • On October 16, 2015, the OTW, together with ally Public Knowledge, submitted comments to the U.S. Intellectual Property Enforcement Coordinator of the Office of Management and Budget in response to that office's request for comments on its plan for intellectual property enforcement. The comments made specific recommendations and emphasized the importance of considering the interests of the public at large, including users who can be harmed by overly aggressive enforcement of intellectual property laws.

Comment of the OTW to the South African Government

  • Submission of the Organization for Transformative Works (OTW) (PDF), submitted September 2015
  • In connection with the South African government's copyright reform process, the OTW filed a comment supporting South Africa’s adoption of a fair use standard to replace narrow, outdated exceptions in its copyright law. As the OTW said in its comment, we believe that it is vital “to make the Government aware of the richness and importance of noncommercial remix communities and the works they produce, in South Africa and elsewhere. Empirical research reveals that remix culture is a global phenomenon, with similar characteristics around the world."

Letter to U.S. Congress

  • Supporting a Pro-Innovation, Pro-Creator, Pro-Consumer Copyright Agenda (PDF), submitted March 2015
  • OTW Legal joined a coalition of organisations, academics, and legal professionals in sending a letter to the United States Congress regarding the importance of 'a balanced copyright system [that] benefits creators, users and innovators' and encourages free expression.

Davis v. Electronic Arts

  • Amicus Brief, Davis v. Electronic Arts (PDF); served January 5, 2015
  • Together with the Electronic Frontier Foundation and the Comic Book Legal Defense Fund, the OTW asked the U.S. Supreme court to settle a disagreement among U.S. courts about when the First Amendment protects people’s free speech rights to use someone’s name, likeness, or identity without violating their rights of publicity. This is part of the OTW's continuing effort to ensure that First Amendment protection for speech extends to speech about famous people.

  • Amicus Brief, Davis v. Electronic Arts (PDF); served on January 30, 2015
  • OTW Legal, together with the Electronic Frontier Foundation (EFF), filed an amicus brief seeking rehearing in the case of Davis v. Electronic Arts. The case concerns the relationship between the First Amendment, which guarantees the right to free expression, and states’ right of publicity laws, which limit how the names, likenesses, and personas can be used. The brief argued that the U.S. Ninth Circuit should rehear the case because its decision in the case struck the wrong balance, to the detriment of creators wishing to make expressive works about real people. Under the existing decision, the brief argued, “an artist creating a work about a real person has little idea how a court might evaluate liability for the use of that person’s likeness, particularly if she cannot be certain which jurisdiction’s rules might govern the analysis.” The brief asked that the court re-hear the case in order to protect artists who want to create realistic portrayals of real people, and to shield creative expression from overreaching publicity rights.

Petition to the Copyright Office in favor of a DMCA exemption for makers of noncommercial remix, 2014-2015

Submission to the Australian Government’s Online Copyright Infringement Discussion Paper

  • Comments submitted by the OTW (PDF)
  • OTW Legal, jointly with Creative Commons Australia, contributed a Submission to the Australian Government’s Online Copyright Infringement Discussion Paper on September 5, 2014, recommending against a proposal by the Australian government. The proposal expanded the definition of “authorisation” liability for internet service providers. This would mean that, even if they couldn’t stop individual infringements by individual users, they could have to change how their services operated, such as by shutting off internet access for accused infringers or by filtering users’ activity.

Capitol Records v. Vimeo

  • Amicus Brief, Capitol Records v. Vimeo (PDF); served on July 30, 2014.
  • The Organization for Transformative Works partnered with the Center for Democracy and Technology, New Media Rights, the Electronic Frontier Foundation, and Public Knowledge to file a brief which asks a federal appeals court to block record labels' attempt to thwart federal law in Capitol v. Vimeo—a case that could jeopardize free speech and innovation and the sites that host both. 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.

Cindy Lee Garcia v. Google, Inc.,YouTubeLLC, et al., and Nakoula Basseley Nakoula

  • Amicus Brief, Garcia v. Google (PDF); served on November 25, 2014.
  • On November 12, 2014, the court ruled that its previous decision was void, and ordered that the case would be re-heard by the entire court—not just a three-judge panel—in December. The OTW filed a new amicus brief in the case, expanding on the arguments we made in our original brief.

  • Amicus Brief, Garcia v. Google (PDF); served on April 14, 2014.
  • The Organization for Transformative Works partnered with Floor64 (the operator of TechDirt) to file 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. 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.

Comments to the European Commission

  • Regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy (PDF), served December 2015

    In December, 2015, OTW Legal submitted a comment in response to to European Commission's request for comments regarding online platforms, online intermediaries, and cloud computing. The OTW's comments emphasized the dangers of regulating based on the false assumption that all online platforms and intermediaries are large commercial entities like Google and eBay.

  • Comments submitted by the OTW (PDF)
  • In February 2014, the OTW's Legal Committee registered the OTW in the European Union's Transparency Register and filed a submission to the European Commission in response to its call for comments concerning possible EU copyright reform.

Stephanie Lenz, v. Universal Music Corp., Universal Music Publishing, Inc., and Universal Music Publishing Group

  • Amicus Brief, Amicus Brief, Lenz v. Universal (PDF); served on October 30, 2015.
  • In this brief, we argued that the U.S. Ninth Circuit Court of Appeals set the standard too low when it required copyright owners sending DMCA takedown notices to have only a "subjective good faith belief" that the work in question infringes copyright and does not constitute fair use. We argued in favor of applying an "objective good faith" standard that would require copyright owners to give meaningful consideration to fair use prior to issuing a takedown notice.

  • Amicus Brief, Lenz v. Universal (PDF); served on December 13, 2013.
  • The Organization for Transformative Works partnered with Public Knowledge and the International Documentary Association, represented by the Stanford Fair Use Project, to file this brief. It explains that unfounded allegations of copyright infringement harm fair use and lawful speech by documenting persistent abuse of DMCA notices. 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.

Comments to the PTO/NTIA

  • Comments submitted by the OTW (PDF)
  • 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 attorneys used 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.

    OTW Legal staffer Rebecca Tushnet also appeared on a panel on Legal Framework for Remixes which was asked to testify to these agencies in connection with the same public comment process on December 12, 2013. (She begins to speak at :33 minutes).

    OTW Legal chair Betsy Rosenblatt has represented the OTW at a Green Paper Roundtable working group to develop a legal framework for the creation of remixes. Her appearance on July 29th can be viewed starting at 1:56:00 of the morning video.

Fox Broadcasting Company, Inc., Twentieth Century Fox Film Corp., and Fox Television Holdings v. Dish Network L.L.C. and Dish Network Corporation

  • Amici Brief, Dish v. ABC (PDF); served on January 24, 2014.
  • Amicus Brief, Fox vs. DISH (PDF); served on January 24, 2013.
  • The Organization for Transformative Works submitted an amicus brief, joined by the Electronic Frontier Foundation and Public Knowledge arguing that "Copyright law does not grant copyright holders like Fox absolute control over the use of their works. The district court followed clear precedent and sound policy when it found that users of Dish’s Ad Hopper do not trespass on Fox’s exclusive rights, that Dish would not likely be liable for its customers’ uses, and that Fox suffered no irreparable harm. This Court should affirm the district court’s order, but clarify that Dish’s intermediate copying is a fair use."

Petition to the Copyright Office to Renew the DMCA exemption for makers of noncommercial remix, 2011 - 2012

  • Comment of the Electronic Frontier Foundation (PDF), submitted December 2, 2011. OTW members Rebecca Tushnet, Rachael Vaughn, and Francesca Coppa worked with the EFF to submit a proposal to renew and expand the DMCA exemption for Noncommercial Remixers.
  • Reply Comment on behalf of the Organization For Transformative Works (PDF), in support of the EFF's proposed DMCA exemption for vidders and other remix artists; submitted March 2, 2012. OTW Legal staff members Rachael Vaughn and Rebecca Tushnet worked with members of Legal and vidding to produce a Reply in support of the EFF's proposal; the EFF also submitted their own Reply Comment (PDF) in support of various exemptions, including the exemption for Noncommerical Remixers.
  • A revised Test Suite of Fair Use Vids including a comparison of DVD-ripped footage and screen captured footage.
  • Francesca Coppa, Rebecca Tushnet, and Tisha Turk testify before the Library of Congress, June 4, 2012; Tisha Turk presents the exhibits in our first Image Gallery demonstrating quality differences between DVD-ripped and screen captured source.
  • Reply to the DVD CCA's exhibits supporting screencapture, submitted August 2, 2012; see the OTW's own second set of exhibits in our second Image Gallery.

Ryan Hart vs. Electronic Arts, Inc.

  • Amicus Brief, Ryan Hart vs. Electronic Arts, Inc.; served on May 23, 2012.
  • The Organization for Transformative Works submitted an amicus brief, joined by the Digital Media Law Project and the International Documentary Association and ten law professors, arguing that EA's use in a video game of college football players' data/descriptions is covered by the First Amendment. EA and the public have a strong First Amendment interest in being able to incorporate factual information - like a player's height, weight, jersey number, and team - into creative works.

Salinger v. Colting

Petition to the Copyright Office in favor of a DMCA exemption for makers of noncommercial remix, 2008- 2009

The EFF applied to the Library of Congress for a DMCA exemption to allow the extraction of clips from a DVD for inclusion in noncommercial remix videos, such as fanvids, that are found to be fair use. The OTW (and many vidders) assisted in the preparation of this application.

The Organization for Transformative Works has submitted a reply comment in support of the EFF's proposed DMCA exemption for vidders and other noncommercial remix video artists.

On June 22, the Copyright Office requested further information from the OTW and other groups that testified during the DMCA Anticircumvention Hearings on May 6-8. (These hearings were designed to entertain testimony in favor of and against DMCA exemptions for educators beyond film studies professors (including K-12 teachers), documentary filmmakers, and vidders and other noncommercial remix artists.) These supplemental questions were about DVDs and screen capture software.

The Copyright Office sent around a second set of supplemental questions on August 22, 2009. The OTW collaborated with the Electronic Frontier Foundation, a number of library associations (ALA, AALL, ARL, ACRL), film and media studies professors, and documentary filmmakers and their organizations, on a joint reply. We also co-wrote a separate response with the EFF specifically to address the particular needs of vidders and other remix artists; see below.

  • A Test Suite of Fair Use Video: A selection of fan videos with commentary offered in support of our proposal for an DMCA exemption for noncommercial remixers.