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Vote for New Media Rights SXSW panels!

It's SXSW voting season again and New Media Rights is hoping to head back to SXSW this year but we can’t do it without your votes!

This year New Media Rights Art Neill along with Ali Spagnola, Tay Allyn and Cy Kuckenbaker want to teach you what to do when you go viral! Getting that viral hit is exciting, overwhelming, and most times, completely unexpected. What do you do once your content has captured millions of eyes? Within hours, you’ve gone from “nobody” to “somebody” and suddenly you have to worry about everything from licensing to copyright infringement to endorsements to convincing these casual viewers to become your long-term fans. You may have less than a week to make decisions that will affect whether you can turn this unexpected hit into a real career. Learn about the important steps you should take, and the pitfalls to avoid, from this diverse panel who've lived through it!  Please vote for our panel "You Just Went Viral. Now What?"

A public vote accounts for 30% of the decision making process at SXSW, so we can’t get to SXSW without your support! Please vote for NMR’s panel here.  And feel free to share our panel with your friends too, every vote counts!

Want even more NMR at SXSW? Here are a few other panels from our board and alumni that you should vote for:

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Help us reach our next 1000 clients!

New Media Rights


We've provided free and nominal fee legal services in over 1000 matters since 2008! These 1000 matters include creative projects, free speech, nonprofit services, and job-creating business ideas that may die on the vine, or be the victim of improper censorship without these services. But we can't do it without your help!  We're asking for your donation now to ensure our services will be available to the next 1000 clients who need it.

Your donation will help ensure we have the resources to reach a wide variety of clients to provide critical legal services. Clients much like Anita Sarkeesian. Here is her story of how we helped her fight improper takedowns of her pop culture critiques.  



To help us reach our next 1000 clients, please click here to donate. Then, if you're in San Diego August 21, come celebrate with us!

We'll be featuring more stories from a variety of creators, entrepreneurs, and even law students who support our work in the coming weeks over social media.

In addition to our one-to-one work, we've produced 150 educational videos that have received over 290,000 views! We've helped create public policies that improve our ability to access and remix the world around us, and to have control of what information and services we can access through new technologies like smartphones.  
 
We've been able to support this work with grants from the California Consumer Protection Foundation and the City of San Diego, but we're still independently funded, so we need your support today to help ensure our services will be available for years to come.

This summer, we're asking you to show your support for New Media Rights with a donation.
 
If you donate at least $250, your name will go on our Sustaining Donors Wall!

When you donate, you're making sure that the next generation of creators and innovators have access to quality, affordable legal services.

Make your donation by clicking here!

New Media Rights #Oneof1000 Celebration
Our #Oneof1000 celebration features unlimited tacos, video and photo booths, 3-d printers, and a chance to meet a fantastic array of creators, entrepreneurs, and attorneys.  

Get your tickets now!

What else we've been up to in recent weeks: Protecting an Open Internet, fair use, and copyright reform

The creators and disruptive startups we work with rely on an open Internet, and we're fighting to protect the open Internet as an engine for creativity and innovation. Just in the last few weeks, we've filed comments in the FCC's Open Internet proceeding urging the FCC to use its TItle II authority to protect the basic tenets of an Open Internet.  We also wrote an article summarizing a few of the most outlandish claims by broadband providers in that proceeding that appeared on Techdirt.

In addition to our work protecting an open Internet, we recently filed an Amicus Brief in Capitol Records v Vimeo with allies to protect fair use.  We also participated in USPTO / Department of Commerce roundtables in L.A, where we argued for reforms to copyright law to protect remix creators and consumers.
 
Politifest, San Diego
Politifest is a family-friendly festival featuring community booths, activities, music and food. This year the goal is to set aside some of the politics that divide us and celebrate the many diverse neighborhoods that connect San Diego residents to one another. Come check out our booth and meet some of the NMR community. The event will be held Saturday August 3ed from 10AM to 2PM at Liberty Station in San Diego.

Useful guides - The NMR website has all kinds of guides and videos to help artists and creators, here's a few that can help you while you're out there creating.

New Guide explains your rights as a fan fiction writer in Kindle Worlds!

Fine print to plain english: things to look out for as a Kindle World author

How can you support independent creators and artists?

Please remember New Media Rights is an independently funded nonprofit program and relies on the support of individuals like you to provide free and low cost legal services to internet users and creators.

We accomplish a great deal on a modest budget, so any donation makes a huge impact for us.You can make a donation to support legal services and advocacy for internet users and creators by clicking here. Please also make sure to connect with New Media Rights on
 Twitter, Facebook, and YouTube.
 
Thanks again for being part of the New Media Rights community. Keep an eye out as our future battles and work on behalf of internet users and independent creators continues.

All the best,

Art Neill, Teri Karobonik, and the New Media Rights team
 

 

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New Media Rights joins global coalition of access to research, science and education organizations to call on STM to withdraw new model licenses.

Today, New Media Rights joined a global coalition of access to research, science and education organizations to call on STM to withdraw their new model licenses.  The new model licenses are not only largely incompatible with other open licenses systems but are also internally inconsistent. This new licensing system will also likely cause substantial confusion and do more to impede the flow of critical scientific research than it will to foster knowledge.   Finally the new licenses will also create substantial legal uncertainty, which could only be resolved through costly litigation in multiple jurisdictions all around the world.

A complete list of signatories as well as the full letter can be found here.

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Fair use review for films and videos FAQ

Are you a filmmaker? Are you reusing copyrighted works in your film such as clips of news stories, movies, TV shows, music or art? Are you wondering if it’s ok to reuse those copyrighted works? Well you’ve come to the right place! New Media Rights helps many filmmakers every year with fair use and properly reusing content in films and videos.

As you're thinking about fair use for your film, we recommend that all filmmakers read this excellent best practice guide for using fair use in documentary films. Once you've read through this FAQ, you can request legal services for your film or video using our our contact form. If we can take your film on, we'll set up a phone call to discuss fair use with you, especially if you are in the early stages of editing your film and have a few preliminary questions. 

If you are in the later stages of editing(usually between the rough cut and final cut stages) many documentary filmmakers often need more in depth help reviewing their entire film, or specific portions of the film for fair use. Typically these reviews are aimed at preparing a letter for E&O insurance regarding fair use. Here are a few FAQ’s about how we review films at NMR.
 

FAQs

What is NMR's process for reviewing films and videos?
NMR works with many filmmakers ever year on fair use reviews. Every project is a little different but most projects involve the following steps

  • Fill out a contact form.
  • We’ll get back to you and let you know if we have the capacity to review the film.
  • Fill out an "E&O Spreadsheet" for the rough cut of the film: So we know what to review in your film we'll ask you to fill out the an "E&O Spreadsheet" for all reused footage, photos, music and any other copyrighted works you reused in the film. The spreadsheet asks for critical information like timestamps of where the clip is reused in your video, the name of the clip, if you have permission etc.
  • Review of the Rough Cut of the Film: Once you provide us with the E&O Spreadsheet we'll start our review of the film. We'll review every single piece of footage listed on the E&O spreadsheet and divide them up into three categories.
    • Things that you have permission for or have very strong fair use arguments.
    • Things that aren't fair use at the moment but could be fair use if changed. We'll also provide helpful suggestions on how the clip could be modified to make it a strong fair use argument.
    • Things that are not fair use. Some reuses just aren't fair use, even with changes. We'll identify these clips for you and suggest taking them out or getting a license to those works.
  • You go back to the rough cut and makes changes based on our suggestions.
  • We review the final cut of the film.
  • Provided our advice was taken into account, we will write a letter for your E&O insurance that explains why clips that we have deemed to be fair use are fair use if you need one.

How much does this cost?
Review of a feature length film is a time-instensive process.  Some film projects that have a particular public interest benefit and significant financial need will qualify for pro bono services and we will do the review for free.  

That said, even if you don't qualify for free services, if you are working on a tight budget you may qualify for reduced fee services.  Under our reduced fee model, we charge $400 to review an entire feature film. For shorter films or portions of films its $35 for every 5 minutes of video to be reviewed.

Since we're experts in the area of copyright and fair use we also can work with larger budget films. If you’re working on a more significant budget but would like to work with NMR, please fill out a contact form and we can further discuss pricing.

But do I need E&O insurance?
Probably. If you intend to distribute the film through things like public television, at film festivals or through most major distribution companies you will be required to have E&O insurance.

Where should I go to get E&O insurance?
At this time we don't have a list of providers but we're working on one.

How much lead time would you need?
Film projects are huge undertakings for our small organization. In most cases a month lead time is sufficient. Please note that we need more lead time to take on fair use review projects during the following times where our capacity is limited.  

  • Late April/Early May
  • Thanksgiving- The second Week of January
  • Late August/ Early September.

You may still contact us during these periods about starting a project but we will not be able to start working on the project until the periods below are over.

How long will the review take?
Again it depends. A short targeted review of a few clips may only take a few weeks from the date we get the footage, or even a few days if there’s only one question about one particular piece of content you reuse in your film.

However the initial review of a feature documentary with hundreds of pieces of reused footage may take up to two months. Secondary review, where our recommendations were largely followed, writing an E&O letter may take up to a month.

Why should I come to NMR for help with fair use?
New Media Rights has a long history of helping filmmakers and video creators avoid legal trouble by conducting fair use reviews. We've helped everyone from documentary filmmakers Michael Singh on his film Valentino's Ghost to cultural critics like Anita Sarkeesian and Jonathan McIntosh. We're respected in the legal community as experts on copyright law and especially fair use.  We want to help you understand how fair use and copyright law can actually empower your creative work and keep you doing what you do best, creating awesome films.

In addition, since we're a non-profit whose mission includes educating the public on copyright related matters we try to make sure that you as a filmmaker walk away with a better understanding of fair use. In other words, we won't just tell you that something isn't fair use; we'll tell you why it isn't. This increases your understanding of the law, which you can bring into the field on future projects to make the creative process easier in the future.

If you’d like assistance with fair use questions related to your film you can contact us via our contact form here.

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Disastrous disclaimers in the digital era: a how to guide on correctly implementing disclaimers in the age of digital media

Photo Courtsey of MichaelMaggs (Own work) [CC-BY-SA-3.0], via Wikimedia Commons

Why do you need a disclaimer?

In 1980, the Federal Trade Commission (FTC) created a series of guidelines to protect consumers from faulty and misleading advertisements. Advertisements can affect the way consumers choose to buy certain products and without regulation, consumers could purchase products that do no work as expected.  With the development of technology in the past century, the FTC now applies these guidelines to podcasts, vlogs, blogs and other online media because they often contain advertisements. If a user relies on information in the podcast or blog as an advertisement when it actually is not, then you as the blogger or podcaster could be held responsible for false advertisement. Therefore, a disclaimer helps your users interpret when your work is and is not an advertisement. 

What are the two primary types of disclaimers you may need to use?

  1. General disclaimer: When your information is NOT an advertisement.
  • Allows users to know that the information is only an opinion and is not associated with any sponsors or business promotions for the specific product or service.  Therefore readers of the blog and listeners of the podcast cannot rely on your information as a guarantee for a certain product or service.
  • For example, a general disclaimer may be needed when you are creating a food blog and talking about your experience at a certain restaurant. You should disclose to readers that the blog is only your personal opinion of the restaurant not one you were paid to give. Thus your reader knows your comments are not advertisements.
  • A general disclaimer may also be needed when you are creating a YouTube video. Anytime you are reviewing a specific product or service in your video, you should include a short general disclaimer clip at the beginning of the video, if you have not received any payment or free products from the company. For example, you may want to create a YouTube channel to review beauty products that you buy from Sephora. The language of your general disclaimer clip could be something like “The ideas expressed in this video regarding [insert hair product] are my own opinions and do not represent those of any company or sponsor.”  Always remember, that this disclaimer clip should last long enough for the user to be able to read.

 

  1. Specific disclaimer: When you information IS an advertisement.
  • When you are advocating for a certain product or service because you received compensation to present such information a specific disclaimer alerts users that your information may be biased.
  • Specific disclaimers also need to be used when you are receiving payment or free products and services that the company specifically intends to be included in your work. They give these items to you in exchange for your comments and by doing so can create a biased opinion. Thus compensation needs to be disclosed to your users.
  • Please see the examples in the next section for further explanation.

When should you use these specific disclaimers?

  • A company hires you to review their product in your work and pays you for your comments. These comments could be biased because of this payment. Therefore, this compensation should be disclosed to your readers. For example, as a makeup vlogger, if a company is paying you to review a product then this should be disclosed to your readers. 
  • A company gives you a free service or product (that you would otherwise be required to pay for) because they know you are a blogger, vlogger or podcaster, because they hope you will talk about the product in a positive manner on your site. These free products and services need to be disclosed. For example, if a video game company gives you a free video game in exchange for your review on your podcast.  When you mention the game on your podcast, you must also disclose to your listeners that they gave you the game for free so you could review it.
  •  Referring back to the YouTube example from above, if a beauty company did pay you or gave you the product for free in exchange for the YouTube review then this should be disclosed. You could include this specific disclaimer in writing at the beginning of the clip with words like “[insert beauty company name] gave me this [insert hair care product] for free so that I could demonstrate its quality to my users.” You could also verbally tell your users in the video that they beauty company compensated you. As long as the user can understand the special agreement between you and the company then you can protect yourself against false advertisement claims.

How to use a disclaimer?

  • A general disclaimer should be included on the top of your blog page or homepage for your podcast. It can be a shorter or longer statement, as long as it indicates that your information:
    • is not an endorsement or promotion for the products and services mentioned and
    • does not reflect the opinion of the company’s associated with such products and services.
  • You could also include a link to your “general disclaimer.” However the link must be clearly visible to the user at the top of your page. In other words, your user shouldn’t have to dig through your site to find your disclaimer.
    • Please note: The typeface should be large enough “for the average user” to read. 12-point font is the standard setting on most computers, so any disclaimers or links to disclaimers should be as near to 12-point as possible.   11 or 10 may also be acceptable, but please keep in mind the smaller the font the more likely a court could find the agreement unfair and hold you responsible. As a general rule, always try to avoid fine print.
  • When telling your followers about an endorsement or compensation let them know the company that gave you the product, service, or money. It isn’t necessary to go into great detail as long as a listener could understand that you are advocating for the company or that your opinion might be biased.

More Examples

Blog Disclaimers

Below is an example from the FTC report Dot Com Disclosures:How to Make Effective Disclosures in Digital Advertising of the incorrect way to display a specific disclaimer for an advertisement in a blog(See example 21):

According to the FTC, the specific disclaimer that this blogger used at the end of her post was not enough information for her readers. Specifically, there are other links earlier on in the reading and throughout the page that could distract the users, and allow them to miss the last sentence. This bloggers writing is not “clear and conspicuous.”

Social Media Disclaimers

YouTube, Twitter and other social media sites are also subject to these guidelines because they often contain advertisements. Reviewers on these sites should use the same guidelines above to disclose if the work is their personal opinion or if the work is in fact an endorsement for the company’s product or service. 

Below is an example from the FTC on the incorrect use of specific disclaimers on Twitter(see Example 16 and 17)



The use of “#Spon” after the tweet may not be enough for a reader to understand that JuliStarz is sponsoring this product. If the average twitter user could not understand that this tweet was an advertisement then the FTC may find this tweet is misleading.


 

Putting the “#Spon” after the link to the third party’s website may still not be enough for the reader to understand this is an advertisement.(see Example 16 and 17) Also, the reader may not understand that the link contains important information regarding the specific disclaimer and may not click on it if they can find this product from other retailers rather then “bit.ly/f56.” Any consumer who does not click on the link will not have any opportunity to view a specific disclaimer for the product and would be misled. Even if the tweet changed the language to “bit.ly/f56/disclose [6]” they may not understand that the link contains important information regarding the specific disclaimer. If the user cannot understand why they should click on a link then they often may avoid it and rely merely on the information presented in the tweet.

The best way to avoid any consumer confusion is to use a tweet like the one below.

 This tweet lets the readers know JuliStarz is paid to endorse Fat-away Pills and that the general weight loss to expect is only 1lb./week.  It is crucial that readers understand that JuliStarz is a paid spokesperson for the product to avoid problems with false advertising.

For more information on implementing disclaimers in digital advertisements you can find the full FTC report here.

This guide was created by New Media Rights, with special thanks to Legal Intern Amy Vaughan. New Media Rights is a small non-profit in San Diego that helps creators of all kinds with legal questions. If you have a question for the NMR team, you can contact us by using our contact form. If you value guides like this and the other work New Media Rights does, consider becoming a supporter today.

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Are interviews copyrighted?

When does an interview become copyrightable?

The answer is it depends. Copyright of speech given during an interview relies heavily on the “fixation” element of copyright law. When a work is fixed in a copy or recording, the work is created. This gives the work its copyright. Therefore, when an interview is physically recorded it becomes copyrighted.

How could the person being interviewed own the copyright to an interview?

This may be a surprise but there are moments when the person being interviewed could in fact have copyright ownership in their words. For example, if the person being interviewed receives a list of questions from the interviewer and records their calculated responses, they could have copyright ownership in their answers because they not the interviewer actually wrote down or otherwise recorded their response. However, courts are hesitant to apply this concept broadly to spoken interviews because of the impact it could have on the First Amendment and the heavy caseload it would bring to an already overloaded court system. See Falwell v. Penthouse Intern., Ltd.  This also opens the door for other legal arguments such as fair use. Furthermore, there are times when contractual releases could affect the copyright and alter default copyright rules. 

When do problems with interview ownership arise, and who usually owns the copyright?

Most often when problems with interview ownership arise it’s because persons being interviewed are unhappy with the way an interviewer uses their responses during interviews to mislead readers or viewers of a broadcast. This causes interviewees to claim their copyright was infringed because they claim to own the copyright to their speech during the interview.  However, the courts have repeatedly rejected this argument, relying on 17 U.S.C. §102(b). The language of this section reads:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Specially, courts focus on the interviewed person’s speech as an “idea” or “procedure” which copyright law does not extend over. Thus, persons participating in Q & A sessions have no copyright to their speech and cannot claim infringement if their words are taken out of context. Speech itself is merely an idea and copyright ownership over “the spoken word runs afoul with first amendment freedom of speech and freedom of the press protections.” See Falwell v. Penthouse Intern., Ltd.

Recently, in Taggart v. WMAQ Channel 5 Chicago, the court held that an inmate had no copyright ownership over his speech during an interview recorded by (and later broadcast by) the television company. The inmate argued that his speech was protected by copyright law because his responses were a “performance”. The court disagreed saying the inmate’s speech was only an idea, and that ideas are not protected by copyright law. Further the court said, “the copyright itself lies within the photographing or otherwise recording of the event, not in the event itself.” This means that the owner of the copyright was the broadcast company because they video recorded (fixed) the interview.

What are some methods to record an interview and what should the person being interviewed do?

The most successful way to fix an interview is for interviewers to audio record or hand write the responses of the person being interviewed. If the interview is recorded by hand, it is helpful if the writing is legible and clearly communicates the conversation because it may help solve questions about fixation.  Short hand that only describes excerpts from the interview typically are not enough to constitute fixation and copyright ownership. So please remember, if there is no fixation of the interview then no copyright exists in that interview.

Further, if you are being interviewed please be aware that you do not possess ownership over your responses in most situations. It is always best to briefly think about your answer before you respond to avoid the misuse of your words by others.  And if you truly don’t feel comfortable being interviewed by a particular media source, remember you always have the power to say no to doing the interview.

If you have any questions about the benefits and downsides of modern copyright laws, feel free to contact New Media Rights via our contact form for free, pro bono legal assistance.

** Special thanks to New Media Rights Legal Intern Amy Vaughan for helping to create this Copyright FAQ**

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Policy update: New Media Rights files amicus brief in Capitol Records vs Vimeo & participates in Los Angeles copyright roundtable

This week has been a busy week for copyright reform and New Media Rights has been in the thick of it to make sure that the voices of independent creators, entrepreneurs and internet users are represented.

Tuesday, Staff Attorney Teri Karobonik participated in the Los Angeles round of the USPTO/NTIA’s ongoing series of roundtables about copyright reform. Teri participated in both the statutory damages roundtable and the panel regarding laws around remixes.

On the statutory damages panel:

  • We emphasized the need for a set of flexible criteria to help judges and juries determine the amount of statutory damages awarded. Particularly criteria that consider whether the defendant use was non-commercial or had reasonable fair use argument.
  • We warned against the danger of awarding statutory damages based primarily on what type of entity committed the infringing act rather than the specific facts of their case. Doing so could be particularly detrimental to smaller companies and non-profits without access to the types of legal resources that a larger entity of the same type may have.

On the remix panel:

  • We repeatedly emphasized the importance of a strong fair use doctrine to freedom of expression online.
  • We called for additional comprehensive copyright education that includes in-depth lessons on things like fair use and creative commons so the average remix creator has the tools to remix within the bounds of fair use.
  • We encouraged the creation of easy to read fair use guidelines developed within specific creative communities by creators, lawyers and other practitioners working in that specific area. Because fair use is so fact specific any fair use guidelines must reflect the needs of a specific creative community.

A recording of the roundtable can be found here. In addition to following our work in these proceedings, you can also keep up to date on the USPTO's website.

Wednesday, New Media Rights joined the Electronic Frontier Foundation and a coalition of other public interest groups to stand up for DMCA safe harbors by filing an amicus brief in the case of Capitol Records v. Vimeo. The bounds of the DMCA safe harbors have once again been challenged in this case in ways that could do serious damage to creators of online audio visual works and user generated content sites if an appeals court does not intervene.

In this particular case, a large coalition of record labels sued Vimeo alleging that dozens of videos hosted on its site containing infringing sound recordings.  The district court agreed for two particularly dangerous reasons.  First the court took unprecedented steps to lower the bar for “red flag knowledge”, the type of knowledge that would prevent a user generated content site from relying on DMCA safe harbors. Second the court declared that a service provider could not rely on the DMCA’s safe harbors to protect them from liability for sound recordings created prior to 1972.  Practically speaking these two holdings would require websites to perform unprecedented monitoring of content on their site and would effectively ban creators of online audio visual works from using sound recording created prior to 1972  on user generated content sites, thus dangerously chilling online speech.

Also joining EFF's brief are our friends at the Center for Democracy and Technology, the Organization for Transformative Works, and Public Knowledge. The full brief is attached below. For more on this amicus check out the EFF and OTW posts about the brief.

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AmicusBriefofCapitolRecordsvsVimeo.pdf351.67 KB

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Broadband industry to American public: “Who needs open Internet rules when you can just take our word for it?”

by Kyle Reynolds and Art Neill

Hundreds of thousands of concerned citizens recently asked the FCC to protect the open Internet, but broadband providers filed comments that are the hundreds of pages equivalent of “take our word for it, everything will be fine” or “move along, nothing to see here.” In preparing our reply comments to the FCC’s open Internet proceeding, we’ve been examining the most recent comments of the big fixed and mobile broadband providers like Comcast, Verizon, and AT&T.

What we found could be striking or completely obvious, but is probably both at the same time. Broadband providers primarily occupy themselves with aggressive posturing and finger-pointing aimed at content providers like Netflix and backbone providers like Cogent and Level 3. The big industry players’ comments also make clear that the big broadband providers apparently do live in an alternate universe to most Americans.  In this universe, the vast majority of Americans can easily switch between an ample number of broadband providers on a whim, and where any real rules to protect the open Internet as we know it are unnecessary because… well, because… just take our word for it.

Here are some of the lowlights:

Comcast:

"If a provider were to block or degrade Internet applications or content, the provider would incur substantial subscriber losses and reputational harm. Thus, in order to undertake such a strategy, a broadband provider would first need to conclude that any theoretical benefits of the strategy outweigh these very real costs." (pg. 6)

  • Ok, a couple points here. First, the basic assumption that this argument relies on is that subscribers actually have another provider to switch to, which many people who live in Comcast territory know is simply fantasy. That said, the point about reputational harms also seems to ignore the fact that broadband providers are already considered the worst companies in America. Subscriber bases and profits are maintained due to these companies entrenched, excessive market power, not customer service. But then, I suppose you can’t blame Comcast for trying: They were neck and neck with Monsanto this year (http://consumerist.com/2014/04/08/congratulations-to-comcast-your-2014-worst-company-in-america/).

After discussing at length the importance of a mercurial, end-around category of “specialized services,” and why the FCC should properly leave them beyond the scope of Open Internet rules, Comcast states, “While it is unnecessary to impose additional mandates on specialized services, the Commission should clarify the definition of specialized services to provide increased certainty regarding the scope of its open Internet rules.” (pg. 30, emphasis added)

  • Comcast’s argument here can best be summed up as follows: “Specialized services are perhaps the greatest thing we have ever thought of, and the FCC has wisely chosen to not regulate them. By the way, what are specialized services anyway?” If you’re confused, you’re not alone.

Who’s next?

Verizon:

“A policy of impeding access [instituted by a broadband provider] to services customers wish to access would only push those customers to other providers. Other ISPs face the same incentives. Under these – in which users demand access to all lawful content and ISPs are committed to fulfilling customers’ needs – there is no need for a prescriptive no-blocking rule.” (pg. 26)

  • Verizon asks that we set aside any silly preconceived notions we may have about the lack of alternative providers (discussed above) and how poorly broadband providers have been known to respond to their subscribers (Matt Stone and Trey Parker may have summed it up best already: http://southpark.cc.com/clips/qblqju/the-cable-company-runaround), and then essentially says that we hardly need rules in place when we can just take their word for it.

"Just because the Commission could prohibit such practices [such as blocking or degrading content] in some contexts, does not mean that it should do so at the present time and instead could wait to see whether any such theorized harms actually materialize." (pg. 37)

  • Translation: Just because the Commission could stop us from experimenting in ways that break the open Internet to extract more money from both content providers and our subscribers does not mean they should do that. Instead, why don’t we wait to even think about doing anything until we’ve locked in business practices that ensure the open Internet as we know it disappears?

"Applying Title II to the American broadband industry would be like tying a cinder block to the ankle of an Olympic sprinter in the midst of a race and then wishing her luck." (pg. 50)

  • You should first know that Verizon spent a fair amount of time making accusations that proponents of Open Internet regulations are “sensationalistic”, “superficial”, and spouting “politically motivated fantasy.” Sadly, the only “fantasy” here is that Verizon likens the American broadband industry to an Olympic sprinter. It is more akin to Godzilla: more prone to simply crush the competition than to race against them.

AT&T:

“To engage in end-to-end prioritization of Internet traffic across connecting networks, it would be necessary to have a system coordinated among edge providers, backbone providers, and ISPs to mark certain packets for priority and to handle them accordingly. No such system exists today.” (pg. 18)

  • AT&T may be right that no such system of coordination between edge providers, backbone providers, and ISPs exists today, but that overlooks the reality that broadband providers have already found a better way to achieve this goal while also cutting out backbone providers: Directly connecting to edge providers, like Comcast has done with Netflix. Not only that, but cutting out the middle man (backbone providers) has an added benefit for last-mile providers (like Comcast and AT&T) in that it cuts off revenue sources for backbone providers (as edge providers rely on their data transport services less often), weakening them and making them more susceptible to increasing demands from the last-mile broadband providers like Comcast, Verizon, AT&T and others.

The FCC has an opportunity here to spur competition and innovation, but it starts with recognizing that “take our word for it” and “move along, nothing to see here” are not the cornerstones of a framework to protect an open Internet.

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NMR files comments urging the FCC to protect the Open Internet

Today, New Media Rights joins hundreds of thousands of consumers, creators, and businesses in filing public comments about the future of Internet.  The Federal Communications Commission now has an opportunity to choose a communications future of innovation, creative exchange, and consumer choice, rather than one where powerful broadband Internet companies can alter the Internet to support entrenched business models.

Specifically we are urging the FCC to reclassify broadband internet access providers as common carriers subject to Title II of the Telecommunications Act, and to reconsider its recently proposed Net Neutrality rules. Preserving an Open Internet is one of the most important social, economic, and legal issues of the twenty first century. It is critical that the FCC have the authority to protect it, and then that the FCC actually uses its authority to enact and enforce rules that uphold the tenets of an Open Internet for years to come.

In our filing, we stressed several important points:

• Broadband internet access speeds and quality in the United States are lagging behind the rest of the world and broadband internet access providers have no motivation to innovate and improve access because they do not compete. The FCC must have the authority to address issues raised by these powerful, entrenched broadband internet access providers.
• American innovators, creators, and consumers need world class internet speeds and quality at affordable prices or their ability to do business and compete in the global online marketplace will be severely limited.
• Broadband internet access providers have already taken actions that violate accepted tenets of an Open Internet (Transparency, No Blocking, No Discrimination), such as Comcast’s throttling of Bittorrent data, and AT&T’s sponsored data plans for mobile broadband.
• The FCC must reclassify broadband internet access providers as common carriers if it is to have any hope of having the authority to pass the kind of rules necessary to protect Net Neutrality.
• Reclassification of broadband internet access providers as common carriers, and consequently reclassification of broadband internet access as a “telecommunications service” as opposed to an “information service” (which it is currently classified as), is necessary because internet access is a distinctly different service from other “information services”. Broadband internet access has been wrongly grouped together with services that like Facebook, Twitter, Pinterest, and others and have thus been able to maintain enormous market power while being subject to very little oversight.
• The FCC must reconsider its proposed rules, because do not adequately protect key tenets of Net Neutrality. The “No Commercially Unreasonable Practices” rule in particular must be revisited in order to bring it more in line with its much more effective 2010 version – “No Unreasonable Discrimination” – in order to ensure that broadband internet access providers cannot abuse their power by discriminating between those who are willing or able to pay for faster access to end users and those who are not.

Again, New Media Rights urges the FCC to take advantage of this important opportunity to ensure that America’s internet ecosystem will remain free to create, innovate, and thrive long into the future, rather than captured by business practices of entrenched broadband internet access providers.

Read the entire comment here

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Fine print to plain english: things to look out for as a Kindle World author

Photo Courtsey of  Jemimus Attribution 2.0 Generic

With books like Fifty Shades of Grey flying off the shelves, the question of the commercialization of fan fiction is once again at the forefront. While fan fic authors have been steadfastly devoted to their art since before the Internet, emerging technologies have brought about new scrutiny to what this community really means for traditional media giants and who, if anyone, should be able to profit from fan fiction.

About a year ago, Jeff Bezos decided to set aside some digital real estate just for the fan fic community. Amazon’s Kindle Worlds is an e-book publishing platform for fan fiction, and works like this: Amazon partners with copyright owners, like Alloy Entertainment, who license to Amazon its fan fiction publication rights. These licensors are known as “World Licensors,” and by licensing their “World,” fans can create and profit off of their fan fiction through a royalty system.

Among the first “Worlds” that made up this new universe were CW’s Gossip Girl, The Vampire Diaries, and Pretty Little Liars. Kindle Worlds has since added G.I. Joe, Veronica Mars, and seventeen other Worlds. The question is, why would readers buy works from Amazon when there is an endless supply of free fan fic from other Internet sites? Fanfiction.net, for one, is the world’s largest fan fiction archive and forum where writers and readers come together to do just this. The recently launched Archive of Our Own (created by the Organization for Transformative Works) is another space online where fans have come together to share their  fan faction and other original fan works in a non-commercial space.

The difference of utilizing the Kindle Worlds platform has been boiled down to three main points: (1) monetization for authors (each e-book costs between $0.99 to $3.99, but this is set by Amazon); (2) does not require constant Internet connectivity; and (3) a minimal level of quality that Amazon ensures by having final say on what will be made available. See Kindle Worlds Publishing Agreement Section 7(c).

On that note, we’re going to get real with the Kindle Worlds Publishing Agreement. Here’s what we found to be important to keep in mind if you are, or are considering to become, a Kindle Worlds author.

The Benefits and Disadvantages of Using Kindle Worlds

Benefits:
Exposure to Amazon’s User base. As a fan fic writer on Kindle Worlds, you get exposure to Amazon’s vast audience and user base. That said, you cannot market and promote yourself as being affiliated with Amazon or the original licensor. Also, make sure you’re only including up to 20% of your creative work (for free) on your website or blog to promote yourself as an author on Kindle Worlds. See Kindle Worlds Publishing Agreement Section 10. If you don’t abide by these rules, do not be surprised when Amazon ceases publication of your work (or removes it altogether).

Opportunity to earn money. By submitting a creative work to a World(s) of your choice, Amazon will pay royalties to you for all copies sold. The standard digital royalty rates are broken down between works of over 10,000 words (35% of net revenue) and short works of between 5,000 – 10,000 words (20% of net revenue). Net revenue is based off the gross amount Amazon actually receives from the sale, less returns, half of Delivery, and other factors. See Section 5(a) for the full definition. Also, if you have a problem regarding the royalty payments, make sure to speak up within six months after the date the statement is made available; otherwise, you may not be able to resolve past royalty mistakes. See Section 5(e).

Quality control. As a Kindle Worlds author, you will be held to Amazon’s quality control regulations. This means making sure there are no typos, and ensuring correct alignment, formatting, and linking across Amazon’s many products and services, i.e. Kindle devices, Amazon.com, iOS, Android, and reading apps. It’s easy to submit your stories online, and you have access to Amazon’s free programs and services to design covers or enhance your work’s quality. Keep in mind that each of your submissions will be additionally subject to that particular World’s guidelines. See Section 7(a).

Disadvantages:
Amazon usurps all your creative rights. By submitting a story to Kindle Worlds, you grant Amazon Publishing an exclusive license to your work for the term of the copyright. This includes global publication rights on any new elements you’ve created. Amazon can then use your ideas to make more money, i.e. licensing your work to others for a fee, and does not need to compensate or even notify you of this Further, Amazon has reserved the right to create movies, TV shows, games, merchandise, and other works based on your Kindle Worlds submissions. If such a future deal is struck, you’ll simply continue to get royalties from sales of your fan fiction but not these other deals. See Sections 4(a) & (b). Keep in mind that because this right is exclusive, you will not be able to create anything associated with your work other than more written fan fiction; this includes any related merchandise, outside fan art, and even YouTube spin-offs!

No crossovers allowed. Although you may have written an epic Veronica Mars/Gossip Girl crossover, you won’t be able to publish it on Kindle Worlds for now. Amazon is currently trying to get content owners on board with the idea of mixing and matching across Worlds, however, so stay tuned.

Amazon can use your name and “likeness.” Depending on who you are, this may be either a benefit or a disadvantage. In any case, it is worth noting that by using Kindle Worlds, Amazon may now use your name, information, and “likeness” worldwide for any purpose in connection with your work and participation in their platform. For example, say Amazon wants to promote its fan fic platform and your work is particularly popular and representative of its success. Under this provision, it can now blast out your name and photo in its newsletter or post a video interview of you on its website.

You waive some other pretty important rights. In order for Kindle Worlds to function the way Amazon ideally envisions it, participants must waive any legal claims that pertain to their rights being infringed from any use of their work. See Kindle Worlds Publishing Agreement Section 6. Translation: don’t complain how Amazon, copyright owners, or other fan fic authors use and contribute to your work because you have essentially contracted away the right to fight back against any reuse of your work that you don’t like. 

Key Points to Consider Before Entering this Alternate World

As an author of Kindle Worlds, you are promising that you are the sole owner of all rights to your work and that none of it violates any law or regulation. See Section 12(a)(1)-(3). By extension, if a third party brought a claim against you, saying that you did not have all the rights required to make your work (because so much of it has been “borrowed” from people other than the original content creator ), this will all be on you. Moreover, Amazon may hold all royalties due to you until such issues are resolved, and if necessary, require you to return any applicable payments. See Section 5(f)(2).

If Kindle World’s limitations and regulations don’t stifle creativity by their mere breadth, they can be seen as a careful, first step toward clarifying the role of commercial fan fic in society. But like many first steps, Kindle World’s isn’t without its stumbling points, points which can hopefully serve as lessons for future creators and entrepreneurs in this space.

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Irene is a second year law student and is based in San Diego, California. She received her BA in Media Studies at Scripps College and her MBA at KAIST Business School in Seoul, South Korea, with an emphasis in IT & Media Management.

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