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

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).

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.


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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New Media Rights #Oneof1000 Celebration

Are you #Oneof1000?

New Media Rights was founded on the idea that legal services provided for the good of the public should take into account not only the financial need of a client, but the social good generated by the client’s activities.  As part of that mission New Media Rights provides direct legal services that help hundreds of people every year. Earlier this summer we passed the 1000 mark, that is to say we’ve provided direct legal services in over a thousand matters since 2010! And we think a little celebration is in order!

In order to celebrate we’ve got two big things planned. 1) A campaign we’re launching to get the word out about just how many people we’ve helped and grow our supporter base, and 2) a celebration we’re inviting you to August 21st at our new headquarters.  You can get tickets to the event here.

We're celebrating both our past accomplishments as well as some of our amazing accomplishments this year including:

#Oneof1000 and Supporter campaign

Are you one of the over one thousand people we’ve directly helped? Maybe you benefited from one of our educational guides online, a workshop we gave, or one of our policy accomplishments? Maybe you cut your teeth as a law student here at NMR?  If you were helped by NMR in any way, or just want to show your support for our work we’d love you to share this milestone on Facebook, Twitter, YouTube, your blog, Instagram, Vine etc using the hashtag #Oneof1000.  Not sure what to share? Here’s a sample tweet to get you started.

I am #Oneof1000 creators, startups and internet users helped by @newmediarights free & nominal cost legal services!http://goo.gl/sVV0cz

And if you want to support NMR even more, please consider becoming an NMR supporter today! It’s donations like yours that allow us to reach amazing milestones like this.

#Oneof1000 Celebration August 21 at CyberHive in San Diego!

But we’re just not having a celebration online; we’re having an IRL party to celebrate. Join us August 21 at 6pm for a celebration of the work we’ve done and the work we’ve yet to do. More details to follow, but early planning meetings indicate a strong possibility of special guests and some seriously legit tacos (Art Neill, our Executive Director, knows someone who knows alguien)!   Your #Oneof1000 posts may even make an appearance!

We’ll be offering tickets to the event for a nominal fee (to cover food and drink) through Eventbrite. More information about the event can also be found on the Facebook event page, but you'll still need to buy your ticket through Eventbrite.

Eventbrite - New Media Rights #Oneof1000 Celebration


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New Media Rights @ VidCon 2014!

New Media Rights is excited to announce that we’ll be returning to VidCon 2014, THE conference for YouTubers. VidCon will take place at the Anaheim Convention Center June 26-28. And this year you’ll have a chance for a double dose of NMR copyright YouTube goodness!

If you’re attending the industry track, catch Executive Director Art Neill on the “Copyright on YouTube?” panel at 3pm Thursday in room 213.  In addition to Art, the panel will feature in house council from innovative companies like Corridor Digital and Loudr.

If you’re attending on the community track, you'll also have a chance to catch an awesome panel on copyright entitled appropriately enough “Copyright on YouTube” at 11am on Friday in room 202. Jon Bailey, the voice of Honest Movie Trailers will moderate the panel which will focus on the practicalities of copyright on YouTube.

So if you’re at VidCon, please stop by and check out these amazing panels!

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Executive Director Art Neill to speak on user-generated and "fan" content at Copyright Society of the USA's Annual Meeting

New Media Rights Executive Director Art Neil will be speaking on a panel Monday June 8 regarding user-generated content and fan productions at the Copyright Society of the USA's 2014 Annual Meeting.

Here are the details

Crowd-Sourced Editorial Content and Fan Productions

The panel will explore new business models that have arisen that allow IP owners to profit from crowd- (or fan-) sourced content while more fully engaging their fans and expanding their audience of consumers. Each panelist will focus on a particular entertainment industry. Art Neill of New Media Rights will explore film and video production, including the impact of YouTube’s Partnership and Content ID/monetization programs, Gregory Boyd of Frankfurt Kurnit will focus on videogames and machinima, and Matt Bloomgarden of Alloy Entertainment will discuss publishing projects such as Amazon’s KindleWorld. The panel will also examine other online businesses that seek to leverage fan interest in generating new content in ways that offers benefits to both the IP owners and the fans. Finally, the panelists will discuss copyright and other legal issues that these new business models present as well as challenges that IP owners face from the growth of user-generated content featuring their properties without their involvement or consent.


Jay Kogan, DC Entertainment



Matthew Bloomgarden, Alloy Entertainment, A Warner Bros. Entertainment Company
S. Gregory Boyd, Frankfurt Kurnit Klein & Selz, PC
Art Neill, New Media Rights

For more information about the Copyright Society of the USA's Annual Meeting click here.

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FYI: US Copyright Office registration fees have increased

As of May 1, 2014, the US Copyright Office has updated its fee schedule resulting in increased fees across most of its services. The following are three of the most relevant changes:

  • Fees for online applications are now $55, up from $35.
  • Fees for paper applications are now $85, up from $65.
  • The price of determining if some works are in the public domain is now $200 an hour, up from $165 an hour.

However, not all online registration fees are going up. If you have a single work to register (like a book) that was not a work made for hire, the registration fee will remain $35! A complete list of the new fees can be found here.

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Its your turn to tell the FCC how to protect and promote the Open Internet

On Thursday, May 15, the Federal Communications Commission (FCC) launched a 4 month rulemaking asking for "public comment on how best to protect and promote an open Internet." For months, regulators, consumer advocates, and service providers have wrestled over what the next steps should be after a court decision that threw out the FCC's previous open internet rules, adopted in 2010.

Here's the FCC's news release and here's the 180+ page Notice of Public Rulemaking.

The first comments are due by July 15, 2014, and reply comments are due September 10, 2014.  In particular, the FCC is asking about whether pay-to-play arrangements, where certain content providers can pay for prioritized, "fast lane" access to users should be permitted.

New Media Rights took part in the net neutrality proceedings back in 2009-2010, and we will be involved in this proceeding as well.  We plan to submit comments, as well as work to encourage positive recommendations through our role on the FCC's Consumer Advisory Committee.

We've provided legal assistance to thousands of internet users, bloggers, video creators, remix artists, nonprofits, and innovators like you who rely on the open internet to share their creativity and innovative ideas with the world.  

Now its your turn to share your ideas with the FCC. How we can promote and protect this vital resource for years to come?

There's some options for how to participate in the upcoming 4 month long proceeding.  We'll share 2 services below where you can directly submit your thoughts to the FCC.  Or, if you have ideas that you would like to share with New Media Rights for consideration for inclusion in our own comments, send your thoughts to support@newmediarights.org.

Here our the tools that our friends at the EFF and Free Press have built for you to submit direct comments to the FCC.


Free Press's "Stop the FCC from Breaking the Internet

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New Media Rights develops public interest principles to improve the efficiency of the DMCA notice and takedown system

In November of 2013, New Media Rights responded to the Department of Commerce’s inquiry regarding the formation of a multistakeholder process to create a set of best practices for the DMCA notice and takedown process. That multistakeholder process has begun and New Media Rights wants to ensure that the voices of independent creators, small user generated content sites, internet users and remixers are represented.

As a first step, New Media Rights joined with a coalition of public interest groups, including the Electronic Frontier Foundation, The Center for Democracy and Technology, Public Knowledge and The American Library Association, to submit a set of principles for improving the efficiency of the notice and takedown system. These principals will not only make the process more efficient for all stakeholders but also make sure that creativity and free speech are not unnecessarily chilled.  The full set of principals is attached to this post.

Staff Attorney Teri Karobonik will be attending the second meeting of the multistakeholder forum on improving the operation of the DMCA’s notice and takedown system to present our support for these principals. She will share stories of some of the individuals that we've helped that make these public interest principles absolutely critical to the improvement of the DMCA process.

The meeting is open to the public and will take place Thursday, May 8, 2014 from 1:00 p.m. – 6:00 p.m. in Berkeley, California at the David Brower Center located at 2150 Allston Way, Berkeley, CA 94704.

Improving the Efficiency of the Notice and Takedown System:
Public Interest Principles

A more efficient notice and takedown system will benefit content owners and service providers by streamlining the process for identifying and taking offline infringing content.  However, such efficiency must not come at the price of undermining safeguards against takedown abuse.  To the contrary, the multi-stakeholder discussions regarding the process can and should explore opportunities to improve the process for all stakeholders – including the public, as posters and readers of online content. Any standardized process should include standard procedures to help protect free expression and civic discourse that depend on Internet platforms.

In keeping with this goal, the multi-stakeholder dialogue regarding standardization should incorporate the following elements.

1.  Accuracy and completeness. Standardized forms for submitting takedown notices should be structured to discourage the submission of incomplete, inaccurate and inappropriate notices.

  • All the elements set forth in 47 USC 512(c)(3) for a valid takedown notice should be required fields in web takedown forms. In order to help users evaluate and respond to potentially improper takedowns, a web takedown form should include
    • Identification of each of the specific original copyright protected works claimed to have been infringed. 
    • An optional field where the takedown notice sender is encouraged to provide the URL where the original copyrighted work can be found, if available.
  •  Web takedown forms should remind users about the core elements of a copyright infringement allegation.  Specifically, the submission process should require each user to certify that (i) he/she is or represents the copyright owner; (ii) the use of the work has not been authorized by the copyright owner; and (iii) he/she has considered whether the use of the work is protected by the fair use doctrine or otherwise authorized by law, and has a good faith belief that it is not authorized. These reminders should be in plain English, so that the average Internet user can understand and properly heed these reminders.
  • Web takedown forms should include an explicit warning that sending a false or misleading takedown notice may result in liability.
  •  Web takedown web forms should provide links to plain English definitions of key legal terms found on the form, including “fair use.”
  •  Web forms should prompt senders to check that the information they have provided (e.g., contact information) is accurate.

2.   Transparency. The notice-handling systems of web platforms should be structured to promote prompt and complete notice to the person who posted the content identified in each notice.

  • Where possible, the notice handling system should be designed to automatically notify the poster with the full contents of the takedown notice – either at the time the notice is received, or at the time the platform acts on the notice by taking down the content.
  •  Notice to the poster should include clear information about the poster’s right to submit a counternotice and the mechanism for doing so. 
  •  Notice to the poster should clearly identify each of the specific copyrighted work(s) claimed to have been infringed, so users can fully consider how to respond, including whether to submit a counternotice. 

3.   Information. One benefit of standardization should be facilitating the operation of takedown notice databases, so we can all learn how to make the process better.

  • Standardization of the structure of data contained in takedown notices should make it easier for third parties to create public databases with takedown notice information.  Standards discussions should consider APIs that would make it simple for such databases to import data supplied by content platforms.
  • Content platforms should consider sending takedown notice data to third party databases on an automated basis, as part of the notice handling process.

4.   Level playing field for lawful users. Standardization discussions should aim to make counternotice more efficient as well.

  •  Wherever applicable, standardization approaches aimed at streamlining notice submission or notice processing systems should be extended to counternotice submission and counternotice processing as well.  For example, the development of an easy-to-use web takedown form should be paired with an equally easy-to-use web counternotice form.
  • Content platforms should consider automating the process of re-posting content for which they have received counternotices, so that re-posting becomes the default response to counternotices.

5.  Avoid collateral damage to lawful speech. In addition to these affirmative steps, discussion of any standardized procedure should expressly consider and seek to ameliorate potential risks to lawful speech.

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New Media Rights joins Electronic Frontier Foundation in urging reconsideration of dangerous Garcia v Google copyright ruling

New Media Rights has joined the Electronic Frontier Foundation, Public Knowledge, and others in filing an Amicus Brief urging a federal appeals court to reconsider it's decision to order Google to take down the controversial "Innocence of Muslims" video while a copyright lawsuit is pending.

Most of our work at New Media Rights is preventative and transactional, focused on helping people avoid legal problems and lengthy court battles before they begin.  In this case, however, we've joined in filing this Amicus Brief because the recent Garcia v Google decision, if not reconsidered, will have negative consequences for free speech that will directly affect the creators and innovators we assist.

The United States Court of Appeals for the Ninth Circuit's court's decision required an online service provider, Google, to censor the historical record by removing all copies of the video. The court then added a gag order to its decision preventing Google from talking about the controversial decision for a full week.  The decision contradicted an earlier district court ruling that refused to restrain speech based on a highly debatable copyright claim.

The video in question, "Innocence of Muslims," sparked worldwide protests and debate in the fall of 2012. Actress Cindy Lee Garcia sued claiming she held a copyright in her 5-second performance the film.  Although one can understand Garcia's interest in distancing herself from the film, the cost should not involve breaking copyright law.  As it stands, the court's decision threatens to create sprawling, poorly defined copyright protection in a variety of creative contributors, altering the way that copyright law protects contributions to film and video productions.

New Media Rights joined the Electronic Frontier Foundation,  American Civil Liberties Union, Public Knowledge, the Center for Democracy and Technology, the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries in this brief.

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Fortress of Attitude defeats false bots takedown on YouTube

Last January, we brought you the story of Fortress of Attitude who had their song “PS Gay Car” removed after it was misflagged for violating “TOU #4 Section H”, that is using Bots or other automated means to inflate a YouTube video’s view count. The good news is that video and its view have been fully restored only four months after the last appeal to YouTube! Granted we’re not sure which of our many appeals resulted in the video being restored since Fortress of Attitude never received any notice from YouTube that the video had been restored.

The bad news is that this is the only successful appeal we’ve seen in over a year of covering this issue. And even worse, despite the February 14th blog post from YouTube that seemed to indicate YouTube would start adjusting view counts of videos accused of bots inflation instead of removing videos; we’ve seen a recent influx of unsuccessfully appealed wrongful bots takedowns.

As much as we want to celebrate Fortress of Attitude’s victory, the reality is the bots problem on YouTube is still very real.

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