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Nintendo Manually Targets Game & Watch Hacker’s YouTube Video Using Content ID

Using any amount of copyrighted content in a YouTube video can result in a claim by a copyright holder, even when fair use exceptions should be applicable.

This type of action is often taken through YouTube’s Content ID system after being detected by an algorithm. However, there is another option available to rightsholders that requires action from real-life people which, perhaps counter-intuitively, can mean claims are sometimes more controversial.

Nintendo Game & Watch Hacker ‘stacksmashing’

As previously reported by Gizmodo, last November and a day before its official release, Nintendo’s Game & Watch console was hacked by IT researcher ‘stacksmashing‘ in order to play new games.

Of course, this type of activity is always frowned upon by Nintendo. The Game & Watch released with Super Mario Bros. and the gaming giant would’ve preferred it to stay that way. But with Doom, Pokémon, The Legend of Zelda, Super Mario Bros. 3 and even Contra playable on the new machine, there’s now more variety, whether Nintendo likes it or not.

Surprise: Nintendo Doesn’t Like It

Nintendo can put pressure on hackers in all kinds of ways but an action taken against at least one of stacksmashing’s videos on YouTube reveals the company isn’t averse to playing some games of its own. As revealed by the hacker on Twitter, Nintendo has filed an interesting copyright complaint against one of his videos.

As the above shows, Nintendo says that the video infringes its copyrights relating to Game & Watch: Super Mario Bros. However, the important information relates to what supposedly infringing content stacksmashing used in his video and in what context. According to the hacker, not much at all and not for very long either.

The Claim From Nintendo

“It’s a claim with time stamps – the beginning of the time stamp is a terminal window.. and then just the device being on and Mario running for a couple of seconds,” he explains.

From the explanation and assuming that the terminal window didn’t infringe any of Nintendo’s rights, that leaves the few seconds of gameplay footage as a potential Nintendo irritant. While that could conceivably get caught up in an automatic Content ID claim, that wasn’t the case here. Fairly unusually, an actual human being made a manual claim against stacksmashing’s video, within Content ID.

“This was actually a manual match, so someone at the big N put in the time to do this,” he notes on Twitter.

So how exactly do manual Content ID claims work?

The Parameters As Per YouTube

“A manual claim is sent to you when a copyright owner identifies that their content has been used without their permission. Copyright owners use the manual claiming tool to claim your video, which sends you a manual claim,” YouTube explains.

In a nutshell, Content ID’s algorithms didn’t flag the video as infringing but someone acting on Nintendo’s behalf watched the video and determined that it did. They then took time out to tell YouTube that Nintendo’s copyrights had been infringed so it should be taken down.

“The manual claiming tool is used by copyright owners who demonstrate advanced knowledge of our Content ID system. The tool gives copyright owners a way to manually claim videos not matched by the Content ID system. Manual claims must include accurate timestamps to show exactly where the claimed content is in your video,” YouTube adds.

While stacksmashing hasn’t revealed the exact timestamps, the progress bar on the screenshot shows that Nintendo claimed a very small part of the video. Furthermore, the requirement for an accurate set of stamps doesn’t appear to have been strictly adhered to, if indeed the only problem was a few seconds of Super Mario Bros. gameplay footage.

Taking that to its logical conclusion, another question raises its head: Why are there so many other videos on YouTube showing Game & Watch gameplay that haven’t received a copyright complaint?

Stacksmashing is Reportedly Editing, Filing Disputes

With Gizmodo reporting that stacksmashing has had two of his videos targeted in this way, the hacker is reportedly editing them in an effort to get them back on YouTube without further issues. On top, he’s also filing disputes against Nintendo’s claims of copyright infringement.

While having any kind of copyright claim against a video is an irritant, in this case a manual Content ID claim does not immediately mean copyright ‘strikes’ for stacksmashing. However, there is an option for a copyright holder to send an actual takedown notice (rather than a Content ID claim) and if this is deemed accurate, a damaging ‘strike’ can be applied to an account.

Since the hacker is reportedly prepared to trim out the contentious few seconds of video, his YouTube account will remain in good standing. On the other hand, if Nintendo is found to be “improperly claiming content that they don’t own the rights to” this could result in “penalties including legal liability and partnership termination,” as per YouTube.

This, of course, is highly unlikely.

From: TF, for the latest news on copyright battles, piracy and more.

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YouTube Class Action: Same IP Address Used to Upload ‘Pirate’ Movies & File DMCA Notices

Grammy award-winning musician Maria Schneider and Virgin Islands-based Pirate Monitor Ltd teamed up in the summer to file a class-action lawsuit against YouTube.

In an effort to gain access to YouTube’s Content ID system, the complaint stated that YouTube has an allegedly lax attitude to takedown notices and repeat infringers, and discriminates against smaller creators.

Schneider told the court that a number of her songs had been posted to YouTube without her permission. Pirate Monitor Ltd argued similarly, stating that pirated copies of its works had been uploaded to the site. Both further said they had been denied access to Content ID.

In its response, YouTube focused on Pirate Monitor, alleging that the company or its agents uploaded the ‘pirate’ movies and then claimed mass infringement, something which disqualified them from accessing Content ID.

“YouTube Failed to Provide Evidence”

In a motion to dismiss filed in November, Pirate Monitor said YouTube had provided no “hard evidence” to back up these damaging claims, demanding that the court disregard the allegations and reject calls for the right to an injunction to prevent Pirate Monitor from submitting wrongful DMCA notices in the future.

At the time we noted that it was unlikely that YouTube had simply pulled its claims out of thin air and in an opposition to dismiss Pirate Monitor’s counterclaims, YouTube now provides a taster of some of the supporting evidence it has on file.

Motion to Dismiss Counterclaims

“Pirate Monitor devised an elaborate scheme to prove itself sufficiently trustworthy to use YouTube’s advanced copyright management tools,” YouTube begins.

“Through agents using pseudonyms to hide their identities, Pirate Monitor uploaded some two thousand videos to YouTube, each time representing that the content did not infringe anyone’s copyright. Shortly thereafter, Pirate Monitor invoked the notice-and-takedown provisions of the Digital Millennium Copyright Act to demand that YouTube remove the same videos its agents had just uploaded.”

YouTube notes that Pirate Monitor has still not disputed these claims but has nevertheless moved to dismiss, arguing that YouTube should provide detailed evidence to support its allegations. According to YouTube, it does not have to do that at this early stage but nevertheless highlights some key evidence to show foul play.

Suspicious Uploads

In all, YouTube processed nearly 2,000 DMCA notices it received by Pirate Monitor in the fall of 2019. All of the targeted videos had a uniform length, around 30 seconds each, generated from “obscure Hungarian movies”. They had been uploaded in bulk from users with IP addresses allocated to Pakistan.

“That alone was suspicious, there is no obvious reason why short clips from relatively unknown Hungarian-language movies should be uploaded to YouTube from accounts and devices in Pakistan,” YouTube writes.

Furthermore, YouTube notes that the videos were uploaded by users with similar names, such as RansomNova11 and RansomNova12, who gave the clips nondescript titles. Perhaps even more telling, the takedown notices were sent soon after the videos were uploaded, sometimes before the videos had been seen by anyone.

ransomnova

While the nature of the uploads is indeed suspicious, YouTube says that it also found what it describes as a “smoking gun”, i.e evidence that the uploads and DMCA notices were being sent by the same entity.

The Smoking Gun

“After considerable digging, YouTube found a smoking gun. In November 2019, amidst a raft of takedown notices from Pirate Monitor, one of the ‘RansomNova’ users that had been uploading clips via IP addresses in Pakistan logged into their YouTube account from a computer connected to the Internet via an IP address in Hungary,” YouTube explains.

“Pirate Monitor had been sending YouTube its takedown notices from a computer assigned that very same unique numeric address in Hungary. Simply put, whoever RansomNova is, he or she was sharing Pirate Monitor’s computer and/or Internet connection, and doing so at the same time Pirate Monitor was using the same computer and/or connection to send YouTube takedown notices.”

To counter Pirate Monitor’s claims that not enough evidence has been provided, YouTube says that a party is not required to prove its entire case in its complaint and the relevant rules do not allow Pirate Monitor to escape any accounting for fraudulent and illegal conduct by “concealing the identity of its agents and obscuring its connection to them.”

Specifically, however, YouTube says it has already answered the “who, what, where and when?” questions Pirate Monitor claims YouTube has not answered. The “who” is Pirate Monitor, the “what” is Pirate Monitor’s allegedly fraudulent representations, the “where” is YouTube’s website, and the “when” is from August 2019 to November 2019.

“For these reasons, Pirate Monitor’s motion to dismiss should be denied,” YouTube’s legal team writes.

The opposition to Pirate Monitor’s motion to dismiss can be found here (pdf)

From: TF, for the latest news on copyright battles, piracy and more. We have some good VPN deals here for the holidays.

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YouTube “Failed to Provide Evidence” in Copyright Class Action Counterclaim

During the summer, Grammy award-winning musician Maria Schneider and Virgin Islands-based Pirate Monitor Ltd teamed up to file a class-action lawsuit targeting YouTube.

The complaint centered on allegations that YouTube’s copyright infringement mechanisms are deficient, claiming that the company refuses to grant “ordinary creators” access to its sophisticated copyright management tools known as Content ID.

During September, YouTube fought back stating that it already goes above and beyond its obligations under the law when dealing with infringing content. The sting in the tail came in the form of additional claims, from YouTube and its owner Google, that Pirate Monitor could not be trusted to use Content ID.

According to YouTube, Pirate Monitor deployed “authorized agents” to create bogus YouTube accounts that uploaded hundreds of videos which it later took down using copyright complaints. The alleged goal was to create the impression of mass infringement in support of the class action.

Pirate Monitor Fights Back

In a motion to dismiss YouTube and Google’s counterclaims, filed on Friday, Pirate Monitor states that YouTube provided no evidence to back up the general claims that the uploaders of the videos in question had anything to do with Pirate Monitor.

“The counterclaims contain no factual allegations indicating whether the unidentified individuals were, for example, employees, officers, agents, or independent contractors of Pirate Monitor, or the scope of their authority to purportedly act on Pirate Monitor’s behalf,” the motion reads.

“As a result, the Court should disregard Defendants’ conclusory allegation that the unidentified individuals were ‘authorized agents’ of Pirate Monitor as well as their improper references to the unidentified individuals as ‘Pirate Monitor’.”

Based on the allegation that the uploaders were “authorized agents” of Pirate Monitor, YouTube previously said that declarations made to the company at the point of upload (that the content was not infringing) amounted to fraud since they breached YouTube’s Terms of Service.

Pirate Monitor believes that such serious claims need to be backed up by hard evidence.

“A claim of fraud must satisfy the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure, and will be dismissed unless it ‘specif[ies] such facts as the times, dates, places, benefits received, and other details of the alleged fraudulent activity’,” the company writes, adding that information relating to “who, what, when, where and how” must be provided to the court.

“Because Defendants fail to offer any well-pleaded facts plausibly showing that the unidentified individuals are agents of Pirate Monitor; and were acting in the course of and within the scope of that agency relationship when they engaged in the conduct alleged in Defendants’ three counterclaims, those counterclaims fail as a matter of law and should be dismissed,” Pirate Monitor adds.

Counterclaims For Fraud & DMCA Abuse Should be Dismissed

Pirate Monitor takes a similar position on YouTube’s claims that the DMCA notices that took down allegedly-infringing content were also submitted fraudulently. At no point does Pirate Monitor deny that YouTube’s claims are untrue but simply states that platform has failed to meet the standards required for such claims to be considered.

Noting that “justifiable reliance” is a necessary part of any fraud claim under California law, Pirate Monitor insists that supporting facts must be sufficiently specific. The absence of such information in its pleadings is “fatal” to YouTube’s counterclaim, Pirate Monitor adds, noting that the video platform has not “alleged any facts showing they were justified in relying on the representations of individuals they cannot identify to this
day, let alone the particularized facts necessary to avoid dismissal..”

YouTube’s Demands For an Injunction Should Be Dismissed

In its counterclaim, YouTube demanded damages to compensate for Pirate Monitor’s actions and also requested a punitive damages award to compensate for the company’s “fraudulent conduct”.

The video platform further sought an injunction to prevent Pirate Monitor and its agents from submitting any additional DMCA notices with YouTube that wrongfully claim that content on the YouTube service infringes copyrights held by Pirate Monitor or anyone it claims to represent.

According to Pirate Monitor, these requests should all be dismissed as YouTube lacks Article III standing.

Again, this centers around YouTube’s failure to provide evidence, with Pirate Monitor pointing out that the request for injunctive relief is based on past wrongs, including the allegedly-fraudulent DMCA takedown notices for which YouTube has failed to support with “even a single fact showing a real and immediate threat that Pirate Monitor will
commit those alleged wrongs in the future.”

Given that it seems unlikely that YouTube simply pulled the serious allegations in its counterclaims out of thin air, at some point the supporting evidence against Pirate Monitor and/or its “agents” will probably be revealed at some point and could even prove pivotal to the case.

Schneider/Pirate Monitor’s Motion to Dismiss Counterclaims can be found here (pdf)

From: TF, for the latest news on copyright battles, piracy and more.

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YouTube: Copyright Lawsuit Plaintiff Uploaded Own Movies Then Claimed Mass Infringement

Early July, Grammy award-winning musician Maria Schneider teamed up with Virgin Islands-based Pirate Monitor Ltd in a class action lawsuit targeting YouTube.

Filed in a California court, the complaint centered on YouTube’s alleged copyright failures, including the company’s refusal to allow “ordinary creators” to have access to its copyright management tools known as Content ID.

“Denied Any Meaningful Opportunity” to Prevent Infringement

Painting YouTube as a platform designed from the ground up to attract and monetize piracy, the action contained a barrage of additional accusations, including that the mere existence of Content ID, through which creators can be compensated for otherwise infringing uploads, means that most infringement is shielded from YouTube’s repeat infringer policy.

Schneider informed the court that a number of her songs had been posted to YouTube without her permission, noting that she had twice been refused access to Content ID and the “automatic and preemptive blocking” mechanisms that are available to larger rightsholders.

For its part, Pirate Monitor Ltd claimed that its content, including the movie Immigrants – Jóska menni Amerika, was illegally uploaded to YouTube hundreds of times. The company said that while YouTube responded to takedown notices, they often took too long to process. Access to YouTube’s Content ID system was denied, Pirate Monitor added.

YouTube Responds to Complaint, Files Counterclaims

Much like the beginning of the complaint itself, YouTube and owner Google’s response begins in familiar fashion. The company denies that it encourages infringement, instead noting that it goes “far above and beyond” its legal obligations when assisting copyright holders to protect their rights, including by investing more than $100m in Content ID.

Of course, this complaint largely revolves around YouTube denying the plaintiffs’ access to Content ID but to that allegation, the company has a set of simple and apparently devastating response points.

Firstly, Pirate Monitor Ltd cannot be trusted since it has already engaged in fraudulent behavior in respect of Content ID. As for Schneider, not only is she suing YouTube over copyrighted music that she and her agents have already granted YouTube a license to use, her own agent has also used Content ID to generate revenue from those works on her behalf.

Pirate Monitor Uploaded its Own Content Using Bogus Accounts

While the claim that Schneider licensed her content to YouTube and made money through Content ID is surprising, that pales into insignificance when compared to the allegations against Pirate Monitor Ltd.

During the fall of 2019, YouTube says that Pirate Monitor through its authorized agents created a series of accounts on YouTube using bogus account registration information to hide the relationship between the account creators and Pirate Monitor.

These accounts were subsequently used to upload “hundreds of videos” to YouTube. These included clips from exactly the same works that Pirate Monitor accuses YouTube of infringing in its complaint – the films Csak szex és más semi and Zimmer Feri.

“Each time these videos were uploaded, Pirate Monitor was representing and warranting that the video did not infringe anyone’s copyrights, and it expressly granted YouTube a license to display, reproduce, and otherwise use the videos in connection with the service. Pirate Monitor also represented that it owned or had the rights to upload and license the material contained in the videos,” YouTube’s answer reads.

Shortly after, YouTube notes, Pirate Monitor followed up by sending “hundreds” of DMCA takedown notices targeting many of the videos it had uploaded through the disguised accounts.

“In those notices, Pirate Monitor represented that the videos that were the subject of the notices — videos that it had uploaded — infringed its copyrights or the copyrights of a party whom Pirate Monitor was authorized to represent. YouTube processed the substantial volume of DMCA takedown requests and removed the videos,” YouTube adds.

YouTube Backs Pirate Monitor Into a Corner

As noted in YouTube’s answer, Pirate Monitor’s representations over the status of these videos cannot be correct in both instances. At the point of upload the company told YouTube that it had the right to upload the videos since they infringed nobody’s rights. If those declarations were untrue, the company breached the ToS agreement and “perpetrated a fraud on YouTube” by uploading infringing content.

On the other hand, if it did have permission to upload the content, then Pirate Monitor knowingly made false statements to YouTube when it submitted DMCA takedown notices clearly stating that the uploads were infringing. The big question, then, is why Pirate Monitor engaged in this alleged conduct at all.

YouTube: Pirate Monitor Wanted Access to Content ID

According to YouTube, Pirate Monitor had previously applied for access to the Content ID program. However, the company was denied on the basis that it was required to demonstrate a valid need and have a “track record” of properly using the DMCA takedown process.

YouTube believes that since Pirate Monitor was lacking these qualities, it cooked up a scheme to convince the video platform that it fulfilled the criteria.

“Pirate Monitor believed that it could demonstrate both the need for access, and a track record of valid DMCA takedown requests, by surreptitiously uploading a substantial volume of content through accounts seemingly unconnected to it, and then sending DMCA takedown requests for that same content,” YouTube says.

“Instead of showing that it could properly use YouTube’s tools, Pirate Monitor’s deceptive and unlawful tactics established that it could not be trusted, and that YouTube was right in rejecting its request for access.”

YouTube’s Counterclaims

As a result of Pirate Monitor’s actions, YouTube says that there has been a breach of contract. The company and its agents failed to provide accurate information during the account creation process and seems to have uploaded videos to YouTube that infringed third-party copyrights. All of this cost YouTube time and money, including investigating and processing Pirate Monitor’s claims that the content was infringing.

Furthermore, YouTube notes that in its agreement with Pirate Monitor, the company is obliged to “indemnify YouTube for claims rising out of or relating to its use of the YouTube service.

“In seeking defense costs and any potential liability in this action as damages for Pirate Monitor’s contract breaches, YouTube expressly preserves its separate entitlement to contractual indemnity and will amend its counterclaims to add a claim for that indemnity if Pirate Monitor refuses to honor its indemnity obligation,” the video platform writes.

YouTube further alleges fraud in respect of more than a dozen accounts Pirate Monitor created for the purposes of uploading around 2,000 videos. Taking the statements in the subsequent DMCA takedown notices sent by the company as accurate, YouTube says that Pirate Monitor agreed not to upload infringing content but did anyway, each time declaring that it had the necessary rights to the content being uploaded.

As an alternative, YouTube offers similar counterclaims in the event that Pirate Monitor actually had permission to upload the videos but abused the DMCA by issuing fraudulent takedown notices instead.

Request for Injunction and Damages

In addition to requesting damages to compensate for the harm caused by Pirate Monitor’s actions, YouTube demands a punitive damages award to compensate for its “fraudulent conduct”.

The video platform also seeks an injunction barring Pirate Monitor and its agents from submitting any further DMCA notices that wrongfully claim that material on the YouTube service infringes copyrights held (or are claimed to be held) by Pirate Monitor or anyone it claims to represent.

YouTube and Google’s Answer and Counterclaims can be found here (pdf)

From: TF, for the latest news on copyright battles, piracy and more.

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YouTube Hit With Class Action Lawsuit Over Copyright Enforcement, Repeat Infringer Policy

For many years, Google-owned YouTube has been wrestling with the vast amounts of copyright-infringing content being uploaded by users to its platform.

The challenge is met by YouTube by taking down content for which copyright holders file a legitimate infringement complaint under the DMCA. It also operates a voluntary system known as Content ID, which allows larger rightsholders to settle disputes by either blocking contentious content automatically at the point of upload or monetizing it to generate revenue.

Content ID Should Be Available to All Copyright Holders

A class action lawsuit filed Thursday in a California court by Grammy award-winning musician Maria Schneider tears apart YouTube’s efforts. It claims that the video-sharing platform fails on a grand scale to protect “ordinary creators” who are “denied any meaningful opportunity to prevent YouTube’s public display of works that infringe their copyrights — no matter how many times their works have previously been pirated on the platform.”

The 44-page complaint leaves no stone unturned, slamming YouTube as a platform designed from the ground up to draw in users with the lure of a “vast library” of pirated content and incentivizing the posting of even more material. YouTube then reaps the rewards via advertising revenue and exploitation of personal data at the expense of copyright holders who never gave permission for their work to be uploaded.

The lawsuit further criticizes YouTube for not only preventing smaller artists from accessing its Content ID system but denouncing the fingerprinting system itself, describing it as a mechanism used by YouTube to prevent known infringing users from being terminated from the site under the repeat infringer requirements of the DMCA.

Content ID Allows YouTube to Avoid Terminating Repeat Infringers

“Content ID is not only unavailable to Plaintiffs and the Class, but it actually insulates
the vast majority of known and repeated copyright infringers from YouTube’s repeat infringer policy, thereby encouraging its users’ continuing upload of infringing content”, the complaint reads.

Highlighting Google’s claims that 98% of YouTube copyright issues are resolved with Content ID, the action turns this statement on its head, stating that what the company really means is that all but a fraction of copyright-infringing material is “entirely insulated” from its repeat infringer policy.

“This two-tiered system essentially trains YouTube’s billions of uploading users that there is essentially minimal risk to uploading to their hearts’ content,” it reads.

“And while YouTube’s Content ID partners are protected from these repeat infringers because their uploads will always be screened against the Content ID catalog before publication, Plaintiffs and the Class remain at risk of recurring infringement by these same repeat infringers.”

The complaint says this undermines YouTube’s repeat infringer policy, which mandates that users will be terminated when they accrue three active strikes in a 90 day period. Its claim to safe harbor protection is also nullified, the complaint adds, due to YouTube placing a limit on the number of takedown notices it will process and restricting access to “certain automated tools” designed to locate infringing content on the platform.

No Takedown / Staydown Mechanism

Turning to how YouTube has affected Schneider herself, the action lists a number of songs that have been posted to YouTube without her permission. She claims to have applied to be included in the Content ID system twice but was rejected, so must now “self-police” for infringement instead of enjoying the “automatic and preemptive blocking” afforded to larger rightsholders via Content ID.

Schneider is joined in the action by a British Virgin Islands company called Pirate Monitor Ltd, which reportedly obtained the rights back in January to several non-U.S. movies first published in Hungary. One of those works, titled Immigrants – Jóska menni Amerika, was registered with the US Copyright Office earlier this year.

All of the Pirate Monitor works have been previously uploaded to YouTube in violation of copyright and the company was also denied access to Content ID. Takedown notices were processed by YouTube but the company says that removal took several days, with titles being subsequently reposted by infringers.

“Put simply, copyright holders should not be forced to repeatedly demand that the same platform take down infringing uses of the same copyrighted work, while other rights holders are provided access to standard digital fingerprinting and blocking tools,” the complaint adds.

“By not allowing Plaintiffs to block the upload of infringing materials at the time of upload, Defendants force Plaintiffs and the Class into a time consuming, cumbersome, inaccurate, and flawed ‘manual’ process to enforce their copyrights, all to the benefit of Defendants’ money-making machine.”

No Respect for Copyright Management Information

The complaint also takes a deep dive into YouTube’s alleged misconduct in respect of Copyright Management Information (CMI), metadata that can be found in lawfully sold copyright works which can provide a means to discover who owns it, in YouTube’s case at the point of upload to its platform.

“YouTube neither encourages nor protects the original CMI metadata during the upload process, even though YouTube knows it exists and its value for protecting the rights of creators,” the plaintiffs write.

“Defendants have created a system that not only disregards, but eliminates or conceals, and/or encourages uploaders to eliminate or conceal, CMI from the video files published on the YouTube platform.”

YouTube Not Entitled to Safe Harbor Protection Under the DMCA

Due to its actions, YouTube cannot rely on the safe harbor provisions of the DMCA, the complaint alleges. These include placing limits on the number of takedown notices it will process, preventing plaintiffs from properly enforcing their rights. When these limits are exceeded, the lawsuit states that rights holders risk losing access to YouTube’s infringement mitigation tools.

It further alleges that YouTube now requires some notice senders to identify what part of an allegedly-infringing work infringes their rights by supplying time stamps. While this is automated under Content ID, those outside the system find themselves with additional work.

“By conditioning these notification and takedown procedures on the provision of additional information — information not required under the DMCA — YouTube has violated the requirements of the DMCA and forfeited its safe harbor protections.”

The action further alleges that YouTube’s ‘three strikes in 90 days’ termination policy is deficient since when timed appropriately, it allows users to safely upload eight copyright infringing works in a year without being terminated.

“By erasing copyright strikes after 90 days, YouTube has not satisfied the safe harbor requirements of the DMCA and forfeited its safe harbor protections,” it adds.

Piling on the pressure, the complaint says that YouTube has constructive knowledge that repeat infringers are infringing works of the plaintiffs’ and class since these are being shielded from termination by the Content ID system which does not deliver ‘strikes’. It further adds that YouTube is profiting from infringements that it could control, another disqualifier from the safe harbor provisions.

Potentially Billions in Copyright Infringement Damages

In summary, the complaint alleges direct copyright infringement, inducement of copyright infringement, contributory copyright infringement, vicarious infringement, and removal of CMI, contrary to the Copyright Act. As a class action, many more rights holders could now pile on, with the potential for calculator-busting claims for damages.

The full complaint can be obtained here (pdf)

From: TF, for the latest news on copyright battles, piracy and more.

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YouTube Fair Use: Documentary Makers Defeat Gaye, Thicke, Bee Gees & Jackson

Late last year, TorrentFreak covered issues facing Copy-Me.org, a group dedicated to informing the public on copyright-related matters.

As architects of the web-series Creativity Delusion, Copy-Me had published an episode entitled “Geniuses Steal”, which explored the notion that no one really creates something out of nothing and even the greatest minds rely upon the inspiration of others. Unfortunately, the work fell victim to claims from not one but four separate directions.

According to the automated claims that appeared in the group’s YouTube panel, their use of snippets of songs by Marvin Gaye, Robin Thicke, Bee Gees and Michael Jackson constituted an infringement of the various labels’ rights, despite being fairly obvious examples of fair use.

However, after a bold fightback, Copy-Me has now emerged victorious, as the group’s Alex Lungu explains.

“The claims in question were on samples from different songs we used to talk about the ethical & legal problems when dealing with art and copyright. The Marvin Gaye vs Blurred Lines case is one of the biggest copyright suits ever. Marvin Gaye’s family won five million dollars and we find that insane,” Lungu informs TF.

“So to prove how similar Marvin Gaye’s song is to plenty of other songs from its time, we played them side by side with You Should Be Dancing (Bee Gees), Don’t Stop ‘Til You Get Enough (Michael Jackson), Everybody Dance (Chic) and September (Earth, Wind & Fire).

The group received copyright claims on four samples – Got to Give It Up, Blurred Lines, You Should Be Dancing and Don’t Stop ‘Til You Get Enough. That meant that Sony Music Entertainment and Universal Music Group got to play ads against the documentary show, even though Copy-Me never monetized the content in the first place.

“I filed disputes immediately on the grounds of fair use. We used small samples and we didn’t affect the owner’s market, so I knew the video was safe,” Lunge says.

“But the thing with Youtube’s copyright claim system is that it doesn’t matter how legal or illegal the use is. It’s in its own world. The copyright claimant is the judge and jury and there’s no third party assessing the claim. There’s no penalty if the claim is wrong or the claimant lies. So you’re left with reading up on the law, fully understanding the forms YouTube asks you to fill and hoping for the best.”

The responses to the disputes were mixed. Three received absolutely no response from the claimants and after 30 days waiting, were automatically dropped by YouTube’s system. But that still left the fourth claim and dispute concerning Don’t Stop ‘Til You Get Enough up in the air. That proved less easy to purge.

“One dispute was rejected (Michael Jackson, Sony Music Entertainment/SME), so there was probably a real person there who thought they can actually make money off our work. So we were left with a video which was monetized in some countries by SME on the grounds that SME alone thought we were illegally using their song – which we weren’t,” Lunge says.

Lunge admits that at this point, he was “a bit afraid” to file an appeal on the grounds that he would have to give all of his personal information to Sony who could then sue him or delete the documentary. Again, with no oversight or penalty if their claim wasn’t valid, all “on the whim” of a “company intern”.

Lunge decided to go all the way, filed an appeal and explained himself yet again. He received no reply but with the clock ticking, things went his way. One month later the appeal expired and the claim against the documentary was released. Nevertheless, that wasn’t without cost. Not counting all of the administrative work and upheaval, it still took two months to counter all of the claims and get back on an even keel.

“That’s an incredible amount of time to have your video in copyright purgatory. I can’t even imagine what must go on inside someone’s mind who makes Youtube videos for a living,” he says.

“There are plenty of completely legal uses one can make with a song, without asking for any permission: criticism, parody, quotation and so on. Automated claims will never distinguish between legal and illegal ones. Only a judge can do that, but it’s insane to think one should decide for the thousands of videos uploaded every second.

“And I am genuinely concerned about the nature of online videos when big platforms like Youtube and Facebook will be forced to abide by the new European Directive on copyright filters,” Lunge concludes.

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