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Copyright claims against YouTubers


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swoop_13-37



Joined: 02 Jun 2019
Posts: 4
PostPosted: Mon Jun 03, 2019 5:24 pm Reply with quote
..... so. I'm not allowed to ask an extremely simple question. while being both polite and respectful? and all decenting opinions will be silenced?
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Godaistudios



Joined: 12 Jun 2003
Posts: 2069
Location: Albuquerque, NM (the land of entrapment)
PostPosted: Mon Jun 03, 2019 9:07 pm Reply with quote
My concern is this:

While I understand the knee-jerk reaction of calling out a YT video and trying to protect your copyright, I see using the big guns of the ANN twitter to call him out and daring him to re-upload the video as an act of bullying. Apologizing (and it came off as a sorry/not sorry) on your less trafficked personal twitter account seems a bit disingenuous.

Moreover, Hero Hei's YT video falls under fair use because it actually falls under the rules as he was using it for criticism and for transformative purposes. In this type of situation, he is allowed to use the entire work and YT ultimately backed him up on it.

It's for this reason that I believe that issuing an apology from the ANN twitter is the appropriate course of action here, not only for being incorrect on the outcome of the DMCA, but for the bullying and intimidation tactics. Being kind and a sincere act of humility for overstepping costs you nothing.
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Psycho 101
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Joined: 14 Aug 2006
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PostPosted: Tue Jun 04, 2019 10:38 pm Reply with quote
swoop_13-37 wrote:
..... so. I'm not allowed to ask an extremely simple question. while being both polite and respectful? and all decenting opinions will be silenced?


Polite and respectful your posts have not been. Your posts have been removed for rather blatant trolling and bad faith arguing. Especially since you seem to have created your account just to make such posts. Not to have any sort of meaningful discussion. If you noticed those that actually have presented their opinions without such behavior have not been removed. So you can save the "people are being silenced" smokescreen for your own bad posts for elsewhere.
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the wired knight



Joined: 26 Oct 2003
Posts: 17
PostPosted: Wed Jun 05, 2019 5:30 pm Reply with quote
I've read over the replies here and the nature of the matter but feel there is a lot of misunderstanding with regards to how fair use works in particular with regards to reaction videos since the law on it is fairly new - but it needs some clarification here and since I'm an attorney who practices in intellectual property as part of my practice I feel it's only fair I explain some of it.

For full disclosure I have not listened to the entire ANN podcast and the video to which this thread is referring I have not seen as it has since been pulled from youtube. I only have the word from others I have spoken to with regards to the video's content to go by so my analysis is with regards to what the law is in general as opposed to necessarily this video in particular aside from the word from others I have to go on.

It is important to note there are two controlling cases with regards to fair use and reaction videos - these are EEquals Three, LLC. v. Jukin Media, Inc. 139 F.Supp.3d 1094, 1104 (C.D. Cal. 2017). and Hoseinzadeh v. Klein et al 2017 WL 3668846.

A fair use standard is not a catch all, there are several criteria an infringing work must be reviewed under in order to determine if it is protected by fair use (purpose and character of the use, nature of the copyrighted work, amount and substantiality of the portion used, and market harm.

While both the aforementioned cases found that the reaction videos were fair use it is important to note that "the Court is not ruling here that all reaction videos constitute fair use." (See Klein). Thus even if a video is deemed a reaction video it may not be fair use and thus not protected. The Klein video importantly "interspersed short segments of another's work with criticism and commentary." Additionally the court held that potentially videos "more akin to a group viewing session without commentary" may not fall under the same protection.

Even the case in Equels Three held that a video "where the addition of minimal narration, an introduction, or text did not change the essential character of the work." (See Equals). Thus a reaction video by itself is not necessarily fair use as it depends on how that video employs the material infringed.

Now, from what I've read and the people I've discussed the matter with it is to my understanding that the Youtube video in question replicates the entire hour-plus ANN Podcast before going into any form of commentary on the information presented. This is unusual in terms of a reaction video as most either intersperse short clips of the work (as in Klein) or feature active commentary throughout the complete reproduction (as in Equals), If the commentary is insubstantial then it may fall into the group viewing category which the Kleins court deemed would not receive fair use protection - although the court neglected to lay out criteria for what constitutes a "group viewing" session and what level of commentary would fall under this category before arising to th level of criticism or commentary. The defendant in this case only used three and a half minutes of a five minute plus video. Conversely, the video mentioned here reproduced the ENTIRE podcast and features no commentary until the end. Something that could arguably have been replaced by a retort video that didn't play any of the podcast and just featured the creator's comments and discussion without reproducing the entire podcast.

The Equals court conversely had a case where a video was reproduced in its entirety but the commentary during the few minutes of each videos' length included jokes, satirical comments and original material put forth by the defendant. In the ANN case here it appears that the ENTIRE video was reproduced which affords less protection as the lack of commentary during the podcast run time runs the risk of supplanting the original work whereas one could not watch the Equals video to replace the plaintiff's work since it was being spoken over the entire time by the creator's own commentary.

I am not certain how this would turn out if it were brought to a court largely because I haven't been able to watch the video and it produces some new issues not brought up by either of the aforementioned cases - however it is important to note that when analyzing copyright infringement and there are elements to works that are deemed "not copyrightable" the typical court procedure is to remove all elements of the original work and the non-copyrpightable elements and see what remains. In the case of watching something FOLLOWED by commenting it may find an infringement is more substantial where the video contains an entire reproduction of the work followed by comments as opposed to speaking over the work, the former of which also runs a risk of not being protected because it allows a viewer to watch the infringing video instead of listening to the original podcast at all. Which may not seem like harm to some people but to both the Klein and Equals case it was undisputed that both works were commercial in nature which weighs against a fair use defense - it was rather the other factors and value the defendants' videos had that was more controlling under that scenario.

Finally I want to leave everybody with this at least - fair use does NOT mean that your work is not infringing on someone's copyright. It absolutely still is, it strictly means that your work is protected by fair use as a defense DESPITE the fact that it is infringing on a copyright.
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Godaistudios



Joined: 12 Jun 2003
Posts: 2069
Location: Albuquerque, NM (the land of entrapment)
PostPosted: Sat Jun 08, 2019 4:19 am Reply with quote
the wired knight wrote:
I've read over the replies here and the nature of the matter but feel there is a lot of misunderstanding with regards to how fair use works in particular with regards to reaction videos since the law on it is fairly new - but it needs some clarification here and since I'm an attorney who practices in intellectual property as part of my practice I feel it's only fair I explain some of it.


I appreciate your more comprehensive approach and citations given. And you are correct, it is "infringing," but one comment I saw regarding this debacle keeps coming back to my mind. People aren't watching his video with the purpose of seeing the ANN content per se. They are watching his video because they want to see his commentary and criticism. It seems to me that this was enough of a reason as to why YouTube considered it to fall within the guidelines of fair use so far as they see it.
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Tempest
ANN Publisher & CEO


Joined: 29 Dec 2001
Posts: 9542
Location: Do not message me for support.
PostPosted: Sat Jun 08, 2019 8:51 am Reply with quote
Godaistudios wrote:
YouTube considered...
This is a common misunderstanding. AFAIK, YouYube never considered the merits of the video. We lost by default. We didn't file a lawsuit, therefore YouTube put the video back. Had we filed a lawsuit, the video would have stayed offline.

YouTube prefers not to be an arbiter of what is and isn't fair use.
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Hei-Yu-in-Tampa



Joined: 05 Sep 2017
Posts: 4
PostPosted: Mon Jun 17, 2019 6:49 am Reply with quote
drscorpio wrote:
Looks like ANN backs down. I'm guessing it was a false DMCA strike.


Indeed that does seem to be the case. It would have been smarter had ANN never put themselves in this position. Bad faith copyright strikes are not only unethical, they're illegal. That the alleged offending party severely criticized ANN only days prior to ANN filing their copyright claim suggests that the copyright strike was a retaliatory in nature rather than a good faith decision/move to protect their interests.

ANN, I would suggest you consider your actions more carefully in the future lest the parties involved seek legal recourse - either civil or criminal - and you find yourself at the business end of a civil suit or even a criminal charge.
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StarfighterPegasus



Joined: 04 Oct 2013
Posts: 64
PostPosted: Mon Jun 17, 2019 2:40 pm Reply with quote
Youtube has to crack down on copyright infringement, Why can't anime Youtubers just do the whole podcast format?
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Tempest
ANN Publisher & CEO


Joined: 29 Dec 2001
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PostPosted: Tue Jun 18, 2019 2:41 pm Reply with quote
drscorpio wrote:
Looks like ANN backs down. I'm guessing it was a false DMCA strike.


Hei-Yu-in-Tampa wrote:
Indeed that does seem to be the case. It would have been smarter had ANN never put themselves in this position. Bad faith copyright strikes are not only unethical, they're illegal.


Please see the wired knight's post above.

Our claim was not in bad faith, it was in good faith belief that the video in question infringed on our copyright and was not fair use. We opted not to file a lawsuit yet (we have 3 years) for a number of reasons, none of which was the belief that we were wrong.

You are correct; it probably would have been smarter had we never filed the DMCA takedown request; it was bad publicity. A C&D would have been a better route.

The YouTubber is welcome to sue us though... that would effectively FORCE us to pursue the copyright infringement claim in court (to prove it was valid). But as long as we aren't forced into court, we're probably not going to go there (but we have 3 years to change our mind). There's no benefit as damages and restitution would be nil even if we won.

Quote:
ANN, I would suggest you consider your actions more carefully in the future lest the parties involved seek legal recourse - either civil or criminal - and you find yourself at the business end of a civil suit or even a criminal charge.

Thank you for the legal advice.
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