OTW Signal, August 2020

Welcome to the first of our new OTW Signal series posts! Every month we’ll take a look at stories that connect to the OTW’s mission and projects, including legal, technology, academic, fannish history, and preservation issues that are important for fandom, fan culture or transformative works.

In the News

OTW’s Legal Advocacy project has been at work in 2020 giving testimony and submitting comments to the U.S. government about copyright issues, including testifying and providing comments to the U.S. Senate Judiciary Committee and meeting with the U.S. Copyright Office about section 512 of the Digital Millennium Copyright Act (DMCA), which provides safe harbors for online service providers and allows sites like the AO3 to operate without being liable for user activities. In these sessions, Legal has highlighted the importance of considering user interests along with the interests of Internet Service Providers and copyright owners. Some of this work centered around a study released this Spring by the U.S. Copyright Office.

Legal Advocacy staffer Casey Fiesler provided further discussion of the OTW’s position in an essay for Author’s Alliance, along with Corian Zacher.

One obvious conclusion of the study was that “no potential solution(s) will please everybody” (pg 68). However, the problem is that “everybody” as defined by the Copyright Office study seems to include only two categories of stakeholders: online service providers (OSPs, like YouTube) and large-scale copyright owners like movie studios and record companies. Even in concluding that “the notice-and-takedown system as experienced by parties today is unbalanced” (pg 72) (which we agree is true), nowhere do we see the experiences of another relevant category: content creators who make fair uses of copyrighted content. The Copyright Office virtually ignored these “transformative creators,” along with other kinds of Internet content consumers.

OTW Legal exists exactly so that fans will not be ignored or forgotten when these important discussions are being held about what is fair use and how online content should be handled. You can read the comments OTW Legal submitted in June on our website, and even see video footage of Rebecca Tushnet’s testimony to the Senate from earlier this year.

In addition, OTW Legal has continued its advocacy work regarding Section 1201 of the DMCA, which concerns decryption of copyrighted works. The publication IP Watchdog interviewed Legal staffer Rebecca Tushnet about the OTW’s plans to seek exemptions for fan video makers for the fourth time. The DMCA exemptions were Legal’s first project on behalf of fans back in 2008 and they have succeeded in renewing and expanding these exemptions in 2011, 2014 and 2017.

Although the Organization for Transformative Works (OTW) hasn’t decided yet whether to petition for a new exemption, the group is planning to seek renewal of a temporary exemption it obtained for the use of motion picture clips in noncommercial videos, according to Rebecca Tushnet, Frank Stanton Professor of the First Amendment at Harvard University and the point person for OTW’s upcoming Section 1201 petitioning efforts.

Tushnet, who testified before the Senate IP Subcommittee this February on Section 1201 and DMCA modernization more generally, said that, while much of the Section 1201 rulemaking was dictated by Congress through the provisions of the DMCA, the process is currently “broken.” “The Copyright Office sees it as their mission to narrow whatever exemption is proposed no matter how much work you’ve done to make that exemption reasonable,” she said. “It’s very harmful to the whole process.”

You can read OTW Legal’s 2020-2021 Petition to the Copyright Office in favor of a DMCA exemption for makers of noncommercial remix, as well as earlier ones on our website.

OTW Tips

Have you ever wanted to find works that only focus around your OTP? Want to filter out all works by a particular creator or filter in works that are part of a series? Consult AO3’s Hidden Search Operators Cheatsheet for tips on how to do all these things and more!

We want your suggestions! If you know of an essay, video, article, podcast, or news story you think we should know about, send us a link. We are looking for content in all languages! Submitting a link doesn’t guarantee that it will be included in an OTW post, and inclusion of a link doesn’t mean that it is endorsed by the OTW.

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