Amicus Curiae briefs in cases regarding U.S. copyright law, fair use, and online freedom of expression

May 2024 Brief in Elliot McGucken v. Valnet, Inc.

OTW Legal and allies filed a brief in the case of Elliot McGucken v. Valnet, Inc. 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.

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.

Dr. Seuss v. ComicMix

In October 2019, OTW Legal joined allies including EFF, Public Knowledge, Prof. Francesca Coppa, and Star Trek authors to file a brief in the case of Dr. Seuss v. ComicMix. The case involved the book “Oh, The Places You’ll Boldly Go,” a mash-up of Dr. Seuss and Star Trek. The brief discussed the social and artistic value of mashup and remix creation and explained why mashups like the one at issue often constitute fair use of the underlying material.

Smith v. Drake

In July 2019, OTW Legal joined allies to file an amicus brief in the case of Smith v. Drake, which concerned the musician Drake’s use of a sample from a spoken word piece in a rap song. The OTW argued that a use should be considered transformative under the fair use doctrine whenever it uses an underlying work to convey a different meaning or message than the underlying work, and need not provide a direct critique or commentary. The OTW also argued that the transformative use of substantial amounts of source material is legally permissible under the fair use doctrine.

Star Athletica v. Varsity Brands

In this brief filed with the U.S. Supreme Court, the OTW joined allies at Public Knowledge and several other groups representing costumers, home sewers, libraries, and 3D printing concerns to argue that copyright law should not be expanded to include garment designs. The case involves a copyright dispute over the design of cheerleading uniforms, but has wider reaching implications for apparel and industrial design. Some have argued that the case could also have an impact on cosplay and similar fan costuming pursuits, which is why the OTW filed this brief. Regardless of the outcome of the case, the OTW believes that cosplay will still be allowed under the law. Still, as the brief explains, expanded copyright protection would send a message that cosplayers and other costume-making fans are “less welcome at the table of creativity than those who can ante up the price and transaction costs of copyright licenses,” which is inconsistent with the goals of copyright law.

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

On September 15, 2016, OTW Legal partnered with Public Knowledge to file an amicus brief supporting Stephanie Lenz’s petition asking the United States Supreme Court to review the case. OTW argued that allowing the Ninth Circuit Court of Appeals’ decision to stand would chill freedom of expression on the Internet and invite censorship by allowing copyright owners to send DMCA takedown notices based only on a “subjective good faith belief” that a work does not constitute fair use.

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.

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.

Capitol Records v. Vimeo

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

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.

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.

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

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.”

Salinger v. Colting

The Organization for Transformative Works was asked to collaborate with the American Library Association, the Association of Research Libraries, the Association of College and Research Libraries, and the Right to Write Fund on an amicus brief in the Salinger/60 Years Later case. The OTW’s Rebecca Tushnet and Casey Fiesler collaborated with lawyers from Stanford’s Center for the Internet and Society and the UC Berkeley School of Law to produce the brief.