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Published:
2018-06-29 11:24:52 -0400
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UPDATE: Great News! On July 5, the European Parliament voted against automatic approval of Articles 11 and 13. The Parliament will now consider amendments and vote again in September. So there is more work to do, but this vote made that work possible. For more information about the issue, read on.

OTW Legal has gotten a lot of questions about a recent development in European Union Copyright Law: the Legal Affairs (JURI) committee of the European Parliament adopted a "Proposal for a Directive on Copyrights in the Digital Single Market." This proposal contains some fan-unfriendly provisions, known as "Articles 11 and 13." Nothing is set in stone yet: Now that the JURI committee has approved the provisions, they will go to the European Parliament, after which there may be an opportunity for further debate. But what are these provisions, what would they mean for fans if the European Parliament approves them, and what can fans do right now? The short version is: Contact your MEP now. For the longer version, read on.

What are Articles 11 and 13?

Articles 11 and 13 would govern how the EU approaches copyright on the internet. Article 11, known as the "link tax," would effectively make it infringing for websites to contain links to copyrighted press publications. Article 13, known as the "censorship machine," has to do with whether websites have an obligation to filter user-posted content to prevent users from posting infringing material.

These provisions would not make fanworks illegal, but they could make fanworks harder to post and find. Because there may be opportunity for further debate on the language, it is hard to know exactly what impact they will have if they make it through the next step. But if they do, they will govern what internet hosts have to do (sites like YouTube and Tumblr and possibly the AO3), not what fans have to do. The provisions are about linking and filtering for infringing material; noncommercial transformative fanworks will still be non-infringing. The impact for fans would be indirect--rules against linking to copyrighted press publications and rules requiring filtering for infringing material may make it harder to find and post (non-infringing) fanworks online.

Beyond the general facts that they will make fanworks harder to find and post, it is difficult to predict exactly the impact these provisions would have, because it is difficult to predict precisely the language that they will pass. The language that JURI adopted is not published in any official form, and the language is hotly debated. Some proposals are worse than others. For example, in some proposals, nonprofit entities like the OTW/AO3 would be exempt from filtering obligations. In others, the rules take into account the nature of the works hosted, but do not take into account a site's nonprofit status. Regardless, commercial sites like YouTube and Tumblr will likely see new obligations if these Articles pass. To find out even more about these proposals, we recommend reading this fantastic Reddit AMA by a few top European intellectual property professors. (In fact, the OTW legal team knows them and can vouch for their expertise!)

What can fans do?

We know that MEP Julia Reda plans to challenge the JURI committee's result in the upcoming Plenary Session of the European Parliament on July 2-5, 2018. Between now and then, your voice matters!. To force a plenary vote, at least 76 MEPs need to decide that a vote is called for. After that, a majority of MEPs would need to vote to reject the JURI committee's position. To learn more about the procedures, check out the #SaveYourInternet site.

For Europeans, that means that the best thing you can do right now is to contact your MEP and let them know that this matters to you! Let them know that you don't want the link tax. Let them know that you don't want algorithms and machines to be filtering internet content for infringement--machines that won't understand fair use, fair dealing, and transformative free expression. Let them know that Articles 11 and 13 would be bad for European creators, who depend on being able to find and post transformative works.

OTW Legal will keep fighting for fan-friendly laws on the internet and around the world. But right now, your voice is the one that matters!

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Published:
2018-06-08 12:24:53 -0400
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OTW Legal has been busy working on three advocacy projects around the world--in Canada, Australia, and the European Union. We want to thank you for your help in Canada, and let you know what’s happening and what you can do to help in Australia and the European Union.

Canada

Thanks to the many amazing stories we received from Canadian fans, we submitted a comment to the Canadian Parliament’s copyright law review about the power and benefit of laws that allow and promote transformative works. You can find our submission here.

Australia

Now we’re working on a submission for Australia! The Australian government is evaluating Australian copyright law and is considering expanding fair dealing provisions or adopting a fair use standard. OTW Legal is writing in support of these changes and would love your help. If you’re Australian and have expressed yourself, gained skills, been part of creative communities, or otherwise experienced the benefits of being able to create transformative works that would benefit from flexibility in Australian copyright law, we’d love to hear your stories. Please send them by June 25 by using our contact form. (Feel free to use a pseudonym if you don't want us to share your personally identifying information.)

European Union

OTW Legal and our allies have been active in fighting on fan-unfriendly legal proposals in the EU. Since these proposals were introduced in 2016, OTW Legal has submitted comments opposing them and has joined in calls for action against them. We’ve managed to hold them off so far and encourage some revisions, but a key vote will be happening in the European Parliament’s JURI committee on 20/21 June that could have a significant impact on the Internet and fan sites. In particular, two provisions of the current proposal would be bad for fans. Article 11 would impose a "link tax" that would make it more expensive for many websites to operate, and Article 13 would impose mandatory content-filtering requirements on websites that host user-generated content. These provisions have been hotly debated and revised a bit since the last time we reported on them. (For more on recent revisions and debates, see these discussions by the Electronic Frontier Foundation and the Hogan Lovells Firm) But despite revisions, they’re still bad deals for fans. Importantly, they don’t preserve the "safe harbors" that websites rely on to operate, and they don’t include user-generated content exceptions.

Without safeguards for user-generated content, Article 13 would require your favourite websites to implement systems that monitor user-generated content and automatically remove any content that could potentially infringe upon copyright, giving publishing giants the power to block your online expression. Sites like YouTube, Tumblr, GitHub, Soundcloud, etc., could be required to block the upload of content based on whether it has been "identified" by big corporations, rather than based on its legality. The law is still being debated, and it is difficult to predict how it would impact the OTW’s projects, including the Archive of Our Own, if it is passed. Regardless of how this vote comes out, the OTW will work as hard as we can to keep the Internet fan-friendly. But we need your help. The most effective thing you can do right now is contact your Member of European Parliament. You can use one of these tools to e-mail your MEP or call your MEP to tell them that having user-generated content on the internet is important to you.

Here’s what you can tell them: Without safe harbors for user-generated content, Article 13 of the Copyright Directive would stifle free expression on the Internet. We don’t want mandatory filtering. Algorithms don’t understand limitations and exceptions to copyright like parody, public interest exceptions, fair use, or fair dealing, and we don’t want our non-infringing videos, website posts and art blocked because of a biased algorithm created by big corporations. We want the law to protect user-generated works, not harm them.

OTW Legal will keep fighting for fan-friendly laws!

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Published:
2018-05-17 12:42:48 -0400
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Spotlight on Legal Issues

Are you Canadian? OTW Legal wants your stories about being a fan!

Over the years, OTW Legal has spoken for fans and fanwork creators in comments to governments around the world including the U.S., the E.U., Canada, Australia, and South Africa. And we want your help to keep doing that! The Canadian government is currently conducting a review of the Canadian Copyright Act. The Parliamentary Committee responsible for the review has already received some comments complaining about fan-friendly laws like the 2012 expansions to fair dealing and the User-Generated Content exception to copyright infringement. OTW Legal wants to show Parliament the other side of the story: the important value that Canadian fanwork creators get from being able to create transformative works.

Are you Canadian and have you expressed yourself, gained skills, been part of creative communities, or otherwise experienced the benefits of being able to create transformative works--works that are legal to create in Canada because of fair dealing and the UGC exception? If so, OTW Legal would love to hear your stories. We need to submit our comments soon, so please send our Legal Advocacy team your stories about how being able to create fanworks and belong to fan communities has helped you, by the end of May. (Feel free to use a pseudonym if you don't want us to share your personally identifying information.) We’ll use your stories to support our legal advocacy work in Canada and worldwide.

Thanks!

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Published:
2018-04-26 13:24:00 -0400
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Outlines of a man and woman speaking with word bubbles, one of which has the OTW logo and the other which says 'OTW Announcement

A few months ago, we learned that someone had registered the domain name archiveofourowno.com and copied the front page of Archive Of Our Own at that url; they even included a login screen that mimicked the AO3 login.

We immediately went to GoDaddy--the registrar of the domain name--and asked them to remove the website, because it violated their bar on phishing (that is, tricking someone into giving away login or other personal information). GoDaddy's Terms state that they will not allow a site to impersonate "a legitimate, trustworthy site" by tricking "visitors into providing them sensitive information like logins." However, GoDaddy never responded and did not take the site down.

Therefore, in January, the OTW Legal Committee initiated a proceeding with the World Intellectual Property Office with the goal of stripping the domain name from the infringers. In April, after the infringers had failed to respond, the WIPO Panel ruled in our favor. The panel held that Bradley Binkley of Chicago, who had registered the domain name, had "in all likelihood... registered the disputed domain name with the aim of exploiting and profiting from the Complainant’s mark, through the impersonation of the Complainant in furtherance of a fraudulent phishing scheme." As a result, the panel voided Binkley's registration of the name, and the OTW is currently in the process of setting up the domain name to point to the main Archive of Our Own page.

One important takeaway from this situation is that you should never enter in your AO3 login information unless you are completely sure that you are on the real archiveofourown.org site. While we also own the domain names archiveofourown.net and archiveofourown.com they redirect you to archiveofourown.org, and that is the only site where you should enter your AO3 login information. And if you go to any site and find yourself needing to login when you thought you were already logged in, it's possible that you're on a phishing site rather than a genuine site--double check the URL to make sure!

If you visited archiveofourowno.com and entered your login information there, you should change your password on AO3, as well as any other sites where you use the same username/password combination, and run a virus-checker on your computer. We attempted to review the code from the phishing site to see if there was anything malicious; we didn't see anything obvious but it's better to be safe than sorry.

If you have more questions about the work done by the all-volunteer Legal Committee at the OTW, you can visit the Legal Advocacy page on our website.

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Published:
2018-04-13 12:32:42 -0400
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spotlight on legal issues

Lately, OTW Legal has received many queries and concerns about recent U.S. legislation known as FOSTA/SESTA. We want to reassure you that the law as it currently stands does not apply to fiction, and therefore should have no impact on the Archive of Our Own.

The term “FOSTA/SESTA” refers to legislation that has been passed by U.S. Congress and the Senate, purporting to combat what it describes as “sex trafficking.” The legislation would make it a crime to operate an interactive computer service “with the intent to promote or facilitate the prostitution of another person.” (That is, the exchange of sex for money.) Under the law, sites that “knowingly assist[], support[], or facilitate[]” prostitution can be held liable for user-posted material.

President Trump signed FOSTA/SESTA into law two days ago. Some sites, including Craigslist, preemptively changed policies in anticipation of the legislation becoming law, and in response to the FBI’s seizure of Backpage.com, a classified-ad site that was often used to advertise personal services including sex work, and which the FBI has allegedly linked to illegal sex trafficking.

Once the law goes into effect, it may not last. Many have argued that it is unconstitutional for a number of reasons, including that it effectively makes it illegal to facilitate promotion of services that are legal in some U.S. states. Many have also argued that it violates the First Amendment, and that it may make it harder for legal sex workers to maintain their personal safety and for U.S. law enforcement to identify and pursue victims of illegal sex trafficking. But unless and until it faces legal challenge in the courts, FOSTA/SESTA will probably be law.

What does this mean for fans?

FOSTA/SESTA is about promotion of personal services—prostitution—and not about fiction, art, or any other sort of fanwork.

Some sites may voluntarily decide to change their policies regarding pornography or other adult-themed material in response to the law, but those changes would not be required by the law. The only policy changes that the law requires are changes that have to do with promotion and facilitation of prostitution.

It is also possible that some particularly overzealous law enforcement members may try to stretch the law to argue that fiction, art, or other expressive works that discuss prostitution constitute “support” of prostitution. The OTW believes, however, that any such interpretation would be a gross misreading of the law, and would be a clear violation of the First Amendment of the U.S. Constitution. With that in mind, FOSTA/SESTA could make sexually explicit material more vulnerable to challenge, especially if it’s material that law enforcers do not understand—but it will not make such material illegal, and it will not make hosting such material illegal.

What does it mean for the Archive of Our Own?

The AO3 already prohibits advertising and commercial promotion. Therefore, any promotion or facilitation of prostitution that would violate FOSTA/SESTA would already be prohibited on the AO3. For that reason, in keeping with the AO3’s ongoing commitment to maximum inclusivity, any changes in the AO3’s terms of service or associated FAQ as a result of FOSTA/SESTA would be for purposes of clarification, not policy change.

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Published:
2018-03-02 13:14:33 -0500
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Fair Use / Fair Dealing Week

It’s Fair Use/Fair Dealing Week!

We here at the OTW talk a lot about how most fanworks are legal under copyright law, but we know that most people find copyright law a little bit mysterious. One reason for that is that the answer to most legal questions is “maybe.” This is particularly true for questions about the copyright doctrines of fair use and fair dealing, which are the doctrines that make (most) fanworks legal as a matter of copyright law.

So to celebrate Fair Use/Fair Dealing Week, we wanted to provide some answers to one of the questions we get most often: Why are Fanworks (Usually) Fair Use?

U.S. (and several other countries’) copyright law is limited by the doctrine of "fair use," which protects free expression by giving people the right to use copyrighted material in certain ways without getting permission or paying. The doctrine of "fair dealing" does the same thing in Canada, the UK, and a number of other countries. Courts in the U.S. have held that fair use is "not merely excused by the law, it is wholly authorized by the law."

The U.S. Copyright Act provides that certain kinds of uses of copyrighted material are fair use, and therefore are not infringing. The law provides examples of the kinds of uses that are likely to be allowed -— such as criticizing or commenting on the underlying work. The law also provides a list of factors to consider in determining whether a particular use is allowed:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  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 generally balance all four factors in deciding whether something is fair use -- no single factor determines the answer.

The Fair Use Factors

Most fanworks are fair use because most fanworks fit well within these four factors. Here’s how:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

This factor favors the kinds of noncommercial, transformative fanworks at the heart of the OTW and AO3’s mission. Although some fanworks are sold, most fanwork creators want to share their creative work without thinking about commercial gain. Commercialized fanworks may still qualify as fair use -- commerciality is only one of the factors that courts consider, and most fair use cases have been about commercial works -- but noncommercial uses are particularly favored.

Second, fanworks transform the meaning or message of the underlying work. In the case of Campbell v. Acuff-Rose, the U.S. Supreme Court explained that a use is "transformative" when it "adds something new, with a further purpose or different character, altering the [underlying work] with new expression, meaning or message." The Supreme Court explained that transformative works "lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright," and "the more transformative the new work," the more likely it is to be fair. For this reason, courts usually find that when a work is transformative, it is not infringing.

(2) the nature of the copyrighted work.

This factor doesn’t have much to do with fanworks either way. It deals with whether the original work was published rather than secret or not made available to the public, and whether the original work was factual rather than fictional. Since most fanworks are made from published works rather than unpublished or secret ones, the third factor generally weighs in favor of fair use, but the fictional nature of many fanworks' source material weighs in the other direction. Regardless, it is usually not a factor that courts tend to place heavy weight on unless the original copyrighted work was unpublished or secret.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

How this factor applies will vary widely from fanwork to fanwork, but most only take parts of the original work, and relatively small parts at that. For example, fan fiction often just uses characters, settings, or moments from a work, and recasts them into something new. (This factor, by the way, is one reason why the AO3 does not allow reproductions of whole or substantially-whole copyrighted works without the consent of the copyright owner.) Even when someone uses a "qualitatively important" part of a work, it can still be fair use.

(4) the effect of the use upon the potential market for or value of the copyrighted work.

This factor asks whether people would buy the derivative work instead of buying the original copyrighted work or some other work the copyright owner would be likely to make or authorize. Here again, fanworks are favored. This is especially true of fanworks that criticize, comment on, or otherwise transform the meaning of the underlying work in ways the copyright holder would not do or want. Often, copyright holders want people to celebrate works "as they are," but fans want to make those works do or say something new and different. These kinds of transformations do not serve as market substitutes for the underlying work -- in fact, they often help it. Fans tend to spend a lot of money on the original work and associated merchandise, and encourage others to buy also. If anything, they help promote the original creator's work.

What About Fair Dealing?

Fair dealing laws, which govern in Canada, the UK, and several other countries, are similar but not quite the same as fair use laws. Fair dealing laws provide specific categories of works that are allowed under certain circumstances. In Canada, for example, those categories include parody and satire. They also include criticism, review, and news reporting if the maker attributes their sources. And they include non-commercial user-generated content if the maker attributes their sources and the new work does not act as a market substitute for the underlying work. So just as most fanworks are the sorts of work that fair use permits, most fanworks fall into fair dealing categories.

The OTW Is Here To Help

The OTW is committed to advocating for fans and preserving the principle that fanworks are fair use. You can find out more about our work on the OTW’s legal advocacy page.

We’re here for you! If you have questions about fair use and fanworks, feel free to contact our legal team.


The Organization for Transformative Works is the non-profit parent organization of multiple projects including Archive of Our Own, Fanlore, Open Doors, Transformative Works and Cultures, and OTW Legal Advocacy. We are a fan run, entirely donor-supported organization staffed by volunteers. Find out more about us on our website.

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Published:
2017-12-01 12:32:57 -0500
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spotlight on legal issues

In recent weeks, OTW Legal has gotten some questions about net neutrality in the United States. Net neutrality is the principle that Internet Service Providers (ISPs) should treat all data on the Internet the same way, without discriminating or charging differently by user, content, website, platform, application, type of attached equipment, or method of communication. There's been some recent activity surrounding net neutrality regulations that fans may want to know about.

Last week, the U.S. Federal Communications Commission (FCC) released a proposal that would severely reduce net neutrality requirements in the United States. The FCC is currently in charge of regulating broadband internet access services in the U.S., and FCC rules currently forbid ISPs from, for example, blocking or "throttling" access to lawful content, prioritizing access to content based on payment, or requiring consumers to pay more for access to certain content or services. The new FCC proposal would retain existing transparency rules, but would roll back prohibitions--effectively permitting ISPs to engage in blocking, throttling, paid prioritization, and other interfering behaviors.

The FCC's proposed order has not gone into effect yet; the FCC Commissioners will discuss the proposal at their December meeting. Despite widespread and vocal opposition to the proposal, most expect that it will pass in mid-December.

What would this mean for fans?

It's difficult to predict exactly what these changes would mean, because it's difficult to predict what ISPs will do when the regulations change. Many major ISPs have pledged not to block or throttle content, but the law wouldn't prohibit them from changing their minds. Some ISPs may also decide to offer tiered pricing that would, for example, charge different amounts for access to different parts of the Internet, or create "fast lanes" and "slow lanes."

Essentially, the changes would allow ISPs to do whatever they think will be most profitable for them, which may mean (for example) giving preferred treatment to sites or services that are affiliated with the ISP or pay the ISP. This could make it more expensive for consumers to gain access to the full range of Internet services and content, and could make life harder for small sites or startups. ISPs would have to disclose when they do such things, but there would be little meaningful mechanism for preventing them, other than market forces.

Most of the effects would probably be for users in the U.S., although decisions about Internet in the United States tend to have a broad impact on access even for non-U.S. residents. Any law affecting internet access may also have an impact on works hosted by AO3, information available on Fanlore, and the OTW's day-to-day work of preserving fan works and supporting fan culture.

For these reasons, the OTW supports net neutrality and OTW Legal personnel have submitted comments to the FCC in support of net neutrality. We will continue to be involved as opportunities arise.

What can fans do about it?

Although it is likely that the FCC will adopt this proposal, the FCC is not the last word on the matter. The FCC must submit its rules to the U.S. Congress, which can overturn them. Therefore, one thing that fans can do--especially fans in the U.S.--is contact their Congresspeople to let them know that they should care about net neutrality. Knowing that net neutrality is important to their constituents, and having concrete examples about why constituents care about net neutrality, will make a difference in whether Congress decides to overturn the FCC's plan. A coalition of Internet-focused nonprofits led by Fight for the Future has created tools to make it easier to contact your Congresspeople about net neutrality, and has also planned some other actions. See their "Battle for the Net" site here.

In addition, many of the OTW's allies, such as the Electronic Frontier Foundation and the Center for Democracy and Technology, are active in promoting net neutrality. Interested fans can follow their activities and get involved through them.

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Published:
2017-11-23 13:09:46 -0500
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Spotlight on Legal Issues

Do you use screencaps or video clips in your fanfiction? If so, the OTW needs your help!

The Digital Millennium Copyright Act ("DMCA") makes it illegal to rip from DVDs, Blu-Ray discs, and many other encrypted technologies. The OTW has won a legal exemption that makes it legal to rip DVDs, Blu-Rays, and digital downloads to make fair uses for the purpose of noncommercial remix videos, like fanvids.

But the DMCA still blocks fans’ ability to make fair uses of video in other contexts, such as fanfiction. Although fair use law would often allow fans to incorporate video clips or stills into their fanfiction (making it what the law calls a "multimedia e-book") the DMCA restricts fans’ ability to gain access to video material for that purpose.

What the OTW is Doing About This

Fortunately, the law provides for a rule-making process every three years where the Copyright Office can recommend exemptions for authors to access the works they need, which the OTW has participated in. There is currently an exemption for e-books, but it only applies to nonfiction multimedia e-books offering film analysis.

A group of allies led by the OTW and the Authors Alliance are fighting for a modified exemption that will allow all authors of e-books, including fanfiction creators, to gain access to the clips they need from DVDs, Blu-ray discs, and digital streaming services.

How You Can Help

Share your stories with us! If you're a fanwork creator who's needed to rip digital content for use in your fanfiction, or if you anticipate finding yourself in that situation in the future, you can help us demonstrate why there's a need for this exemption.

The Copyright Office places an emphasis on stories from authors who have been harmed by the DMCA in the past or are likely to be harmed by the DMCA in the future, so please take our 5-minute survey and share your experience!

The deadline for us to submit our evidence is soon, so please fill out the survey by December 4, 2017. And even if you have no story to contribute, please spread this message to others. Every story helps.


The Organization for Transformative Works is the non-profit parent organization of multiple projects including Archive of Our Own, Fanlore, Open Doors, Transformative Works and Cultures, and OTW Legal Advocacy. We are a fan run, entirely donor-supported organization staffed by volunteers. Find out more about us on our website.

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