Since OTW’s inception over five years ago, our Legal Committee has made significant contributions to the world of transformative works. Most recently, our Legal Committee (with the Electronic Frontier Foundation) secured a DMCA exemption from the U.S. Copyright Office for fanvidders and other non-commercial vid makers. You can read more about this legal victory below or here. The purpose of this Spotlight is to familiarize the public with our legal eagles. The Communications Committee contacted Legal, and Professor Betsy Rosenblatt graciously volunteered to do this Q & A.
Q: What do you do when you’re not volunteering for the OTW?
Job-wise, I’m a law professor. I teach intellectual property courses (trademarks, patents, video game law…) and civil procedure, and run the intellectual property law program at Whittier Law School in Southern California. Before I started teaching, I practiced intellectual property and entertainment litigation at a firm in Los Angeles, California. In addition to teaching, I’m affiliated with a firm, but I do very little client work. I’m also a TV junkie, Sherlockian, crocheter, hiker, gamer and an all-around geek. In addition to volunteering for the OTW, I also volunteer for the Comic Book Legal Defense Fund and the Beacon Society (a Sherlockian literacy organization).
Q: So who exactly comprises the Legal team at OTW? Could you give us a brief rundown of maybe the wide variety of backgrounds that members of the Legal Committee have?
Everyone on Legal (like all the committees) is a volunteer. It’s a small committee, and most of the members are attorneys. Of course the Committee Chair, Rebecca Tushnet, is a law professor. Some of the other members work at firms or companies; others have law degrees but aren’t practicing law. Most have some background in intellectual property law and experience with either litigation or transactions, although that’s not true for everyone on the committee. Right now most of our members are U.S. lawyers, and we’re always on the lookout for good people with expertise in non-U.S. law.
Q: How long have you been with OTW?
I’ve been a member for several years, but didn’t volunteer until joining Legal about 3 years ago.
Q: How are you enjoying your time so far?
I love being involved with the OTW. I’m an avid TV watcher and long-time fan in various ways, so fandom is close to my heart. And as someone with a background in intellectual property law, I’m particularly passionate about supporting fan expression and care deeply about the OTW’s mission of fan advocacy. I love that fandom is a community of communities, and I love that there’s a resource that can help fans in the ways that the OTW does. So really, I feel privileged to be able to contribute my experience and expertise to the organization. I’m also glad that we have other great people on Legal, so no single person has to do all of the work!
Q: What is a current project that Legal is working on now, and what significance does it have with transformative works?
Earlier this year, the OTW testified before a Copyright Office committee regarding an exemption to the Digital Millennium Copyright Act. The DMCA bans circumvention of anticopying technologies (like the copy protection on DVDs) regardless of the purpose for circumvention and even if you make a fair use. The Copyright Office can make temporary exceptions to this rule when it interferes too much with lawful uses, including fair uses. Several years ago–partly in response to advocacy from the OTW–the Copyright Office instituted an exception allowing people to rip DVDs to make non-commercial, transformative videos. Since instituting that policy the Copyright Office has been scheduled to reexamine it. The reexamination happened earlier this year, and we provided information and advocacy to encourage the Office to continue the policy and expand it to reflect new technologies. My role in that project was relatively small; I commented on some of the drafts, and attended one of the hearings and reported back to the committee. As I listened to the Office’s questions at the hearing, I was struck by how important our testimony was to helping them understand what vids and vidders do, why vids are valuable expression, and why vidders need legal access to high-quality source material.
The best news of all is that just a few days ago, the Copyright Office released its decision, and it has recommended an extension of the policy exempting noncommercial, transformative vid-making from the DMCA’s anticircumvention provisions. Success!
Q: Aside from the current project, what are some issues or projects that frequently get sent to Legal?
What doesn’t get sent to legal? Our informal mantra is “If, at any point, you wonder whether you should send something to Legal, you should send it.” And we’re very glad that the organization as a whole has taken that to heart–better to ask and learn that there’s no problem than to learn too late that there was one! So we handle lots of internal questions about what various other committees are doing. We also handle inquiries from fans and others with fannish projects asking for legal advice, information on the relevant laws, or help responding to take-down requests. Often, the questions are outside the OTW’s mission, in which case we try to refer the questioners to people who can help them.
Q: Favorite legal project of the Legal Committee?
The DMCA exemption one, I think. But I also love that we’re a resource for fans with questions about transformative works–whatever those questions might be.
Q: As a lawyer, what do you find most fascinating about the law related to transformative works?
That’s one of those questions I could wax rhapsodic about for far longer than anyone wants to read. Law professors tend to focus on particular topics when they write articles–publish or perish!–and my scholarship focuses primarily on settings in which intellectual property law doesn’t necessarily promote creation and innovation. Fandom is one of those areas–huge communities of people create fan fiction without any desire for payment or exclusivity. They create for self-expression, for community, for recognition…for all sorts of reasons that have nothing to do with intellectual property protection. I’m interested in the way that fandom creates its own rules and customs, different from the rules of formal intellectual property law, and the ways in which those rules govern behavior even more powerfully than law does. So I guess what I find most fascinating about the law related to transformative works is how the law influences, but doesn’t necessarily govern, fan behavior.
So that’s my rhapsodic answer. My practical answer, informed by my work with the OTW, is that one of the things I find most fascinating about the law related to transformative works is how vigilant we all need to be in order to protect our right to express ourselves.
Q: Lastly, do you have an OTP? And if yes, then who!
We are all products of our youth: my OTP is probably MacGyver/Pete Thornton. But the better answer is that I am a total sucker for chosen family and the “I would die for you” friendship.