Policy comments and letters

October 2022 Brief in Hunley v. Instagram

OTW Legal and allies filed a brief in the case of Hunley v. Instagram. The brief supports the “server test,” which protects the rights of users to link across the internet and embed files and images in web pages and the rights of platforms to allow linking and embedding without facing potential copyright liability.

June 2022 Brief in U.S. Supreme Court case of Warhol v. Goldsmith

OTW Legal, together with EFF, filed a brief in the U.S. Supreme Court in the case of Warhol v. Goldsmith, arguing that a broad and flexible fair use test is essential and urging the Supreme Court to reaffirm its prior holdings that a transformative use is one that has a different meaning, message, or purpose from the copyrighted work it uses.  We used fanvids as examples of when it may be necessary to consider the intended audience for a work to assess the transformativeness of a use.  We also urged the court to place the burden of demonstrating “market harm” on plaintiffs when a use is transformative or noncommercial.

May 2022 Response to U.S. Copyright Office inquiry

On May 27, 2022, OTW Legal submitted comments in response to a U.S. Copyright Office inquiry regarding technical measures under section 512 of the DMCA.  We explained that current technologies do not exist that would allow service providers (like the OTW) to distinguish between infringing and non-infringing material, and opposed any suggestion that the Copyright Office endorse or impose technical filtering measures on online service providers.

April 2021 Comments to U.S. Copyright Office re: CASE Act

On April 26, 2021, OTW Legal joined allies to submit comments to the U.S. Copyright Office in response to a Copyright Office Notice of Inquiry regarding implementation of the CASE Act. The CASE Act created a tribunal called the “Copyright Claims Board” (CCB) within the Copyright Office for handling copyright “small claims,” and gave the Copyright Office discretion regarding many aspects of the CCB and its operation. Our submission gave specific recommendations regarding how the Copyright Office should limit the scope of the CCB’s power, should make it clear and easy for people to opt out of participation in CCB proceedings, and should be impartial in communications regarding the CCB.

March 2021 Comments on Digital Millenium Copyright Act discussion draft

In March 2021, OTW Legal submitted comments on Senator Tillis’s discussion draft of the Digital Millennium Copyright Act, which was published in December 2020.

December 2020 Statement of Organization of Transformative Works on DMCA Reform

In December 2020, OTW Legal sent in a response to a U.S. Senate request for comments on particular questions relating to the Digital Millennium Copyright Act.

June 2020 Comments to U.S. Senate re: Digital Millennium Copyright Act

In June 2020, OTW Legal submitted comments to the U.S. Senate in connection with the Senate’s ongoing assessment of Section 512 of the Digital Millennium Copyright Act. The OTW responded to a report by the U.S. Copyright Office; urged the Senate to consider the needs of Internet users, independent creators, and small service providers; and presented empirical data regarding section 512’s effectiveness for transformative creators.

February 2020 Testimony to the U.S. Senate re: Digital Millennium Copyright Act (DMCA)

Legal team member Rebecca Tushnet testified before the U.S. Senate Judiciary Committee about the Digital Millennium Copyright Act.  Her testimony focused on how the safe harbor provisions of the DMCA work for small organizations like the OTW, how they advance creative expression by making sites like the Archive of Our Own possible, and how they provide the legal flexibility necessary for a diverse Internet to survive.  Her testimony also addressed the failure of the DMCA’s anti-circumvention provisions and the work the OTW has done in creating exemptions that protect vidders and similar creators from those provisions’ overreach.

July 2019 Coalition Letter to U.S. Senate re: CASE Act

OTW joined allies to oppose the CASE Act, which would create a Copyright small-claims tribunal that could impose penalties of up to $30,000 on alleged infringers without due process.

July 2019 Joint Statement of Principles Regarding Section 230 of the Communications Decency Act

Legal joined a diverse group of allies and experts to make a joint statement of principles about Seciton 230 of the U.S. Communications Decency Act, which provides protections for Internet platforms.

April 2019 Comments to the New Zealand Parliament as part of New Zealand’s regular review of its Copyright Act

In April, 2019,OTW Legal filed a comment in response to New Zealand’s call for comments as part of the country’s review of its Copyright Act.  OTW relied on powerful testimonials from New Zealand fans to demonstrate the many social and cultural values of laws that permit and promote creation of transformative works, and argued that New Zealand should retain and expand fair dealing policies to advance those policies.

March 2019 Comments to the US Copyright Office regarding the Music Modernization Act

In March, 2019, OTW Legal responded to a Notice of Proposed Rulemaking by the U.S. Copyright Office concerning the meaning of “noncommercial” use as contemplated by the recently-passed Music Modernization Act (“MMA”). The OTW argued, among other things, that the definition of commercial use for purposes of the MMA should focus on the particular use rather than the user, should analyze commerciality based on profit-seeking by the user rather than by the platforms or web hosts they use, and should distinguish between commerciality and noncommercial “benefit.”

June 2018 Comments to the Canadian Parliament as part of Canada’s regular review of its Copyright Act

In June, 2018, OTW Legal submitted comments to the Canadian Parliament as part of Canada’s regular review of its Copyright Act. OTW relied on stories from Canadian fans to argue that Canada’s Fair Dealing and User Generated Content exceptions were effective and socially beneficial.

June 2017 Comments to the U.S. Trade Representative regarding the North American Free Trade Agreement

As the U.S. Trade Representative (USTR) embarked on the process of renegotiating the North American Free Trade Agreement (NAFTA), OTW Legal advocated for an open and transparent negotiation process and emphasized the importance of including exceptions and limitations such as fair use in any provisions concerning intellectual property protection.

March 2017 Comments to Copyright Office Regarding Moral Rights of Attribution and Integrity

On March 30, 2017, OTW Legal submitted a response to the U.S. Copyright Office’s request for comments regarding whether the U.S. should adopt additional laws requiring that authors be identified in connection with their works (known as a right of “attribution”) and requiring an author’s permission to make changes to copyrighted works (known as a right of “integrity”). Collectively, these are known as “moral rights.” The OTW argued that a right of integrity would harm free expression, an that while in general attribution norms are often beneficial and common within fan communities, they should not be given the force of law. Instead, attribution rights are well-protected by contract law, additional legal rights would be a poor fit for common forms of collective and sequential creation, and the wide variation in attribution norms in different communities (for example, fandom, academia, moviemaking, and advertising) demonstrates that individual communities should be allowed to determine when and how attribution is best accomplished.

February 2017 Follow-Up Comments to Copyright Office Regarding DMCA Section 512

In a follow-up to our March 2016 comments, OTW Legal answered questions from the Copyright Office regarding the notice-and-takedown provisions in Section 512 of the U.S. Digital Millennium Copyright Act. Among other things, the OTW drew on its experience operating the Archive of Our Own and the experiences of its members in dealing with takedown notices to highlight ways in which the current system works well and ways in which it can be improved.

October 2016 Comments to Singapore

On October 23, 2016, OTW Legal submitted comments to the government of Singapore in response to a Public Consultation on proposed changes to Singapore’s copyright regime. We emphasized the benefits of a balanced copyright regime with a robust fair use doctrine that permits the creation of noncommercial transformative works without permission, and suggested the possibility of a “user generated content” exception to copyright protection to augment fair use. We drew on our experience obtaining the vidding exemption to the DMCA’s “anti-circumvention” provisions to discuss Singapore’s proposals regarding “technical protection measures” for copyrighted works. We also also urged Singapore to adopt simple and consistent rules regarding the duration of copyright protection, discussed the benefits and drawbacks of granting authors a right to attribution, and discussed proposals for dealing with “orphan” works whose copyright owners are not easily identified.

June 2016 Comments to the U.S. Copyright Office

On June 24, 2016, together with the EFF and Professor Eric Goldman, the OTW submitted comments to the U.S. Copyright Office in response to a Notice of Proposed Rulemaking that would make sites that rely on the DMCA safe harbor–like the Archive Of Our Own–to renew their registrations every three years. We argued that this new requirement could harm small service providers and expose providers to risk for small oversights.

June 2016 Comments to the European Commission

April 2016 Comments to the European Commission

The OTW explained that while notice-and-takedown systems are designed to make intellectual property enforcement faster and less expensive, it is “crucial that these savings do not come at the expense of suppressing non-infringing speech.” The OTW also urged the Commission to recognize that significant innovation and creativity can come from the non-commercial sector, and not to make rules that only large businesses will be able to follow.

March 2016 Comments to the U.S. Copyright Office Regarding DMCA Section 512

In response to a request by the U.S. Copyright Office, OTW Legal commented on the notice-and-takedown provisions in Section 512 of the U.S. Digital Millennium Copyright Act. The OTW argued that the law is far from perfect, but that it provides an important framework that allows online creativity to thrive. It reminded the Copyright Office that many entities that rely on the DMCA, like the OTW’s Archive of Our Own, are small and conduct individual hand-review of takedown notices, and lack the resources to monitor user-provided content for infringement. The OTW also highlighted the importance of mechanisms for preventing and punishing improper takedown notices, and identified ways in which the current system of counter-notification is inadequate to protect users engaged in fair use and free expression.

Comments to the US Copyright Office

In response to a request for comments by the U.S. Copyright Office, OTW Legal argued that section 1201 of the Digital Millennium Copyright Act is overbroad and unnecessarily chills valuable creation and innovation by preventing people from circumventing technological protections on copyrighted materials even for otherwise-noninfringing purposes such as fair use. We also argued that the triennial rulemaking procedure, under which we have successfully obtained exemptions for vidders, is unduly burdensome and proposed concrete suggestions for improvement.

Comments to the European Commission

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 to the U.S. Intellectual Property Enforcement Coordinator

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

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

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.

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

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.

Comments to the European Commission

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.

Comments to the PTO/NTIA

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.

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.