The Prelator

Weblog of Patrick McKay

Square Enix Abuses YouTube DMCA Takedown Process

Posted by darklordofdebate on October 7, 2009

A few months ago I wrote a post on why anime music videos (AMVs) would likely be considered fair use under US copyright law. Well it wasn’t long before I was given the chance to test that theory.

This past Sunday I uploaded a new anime music video I made using footage from Final Fantasy VII: Advent Children Complete and Final Fantasy VII: Crisis Core, set to Breaking Benjamin’s awesome new song “Anthem of the Angels.” (You can currently see the video hosted on Facebook Video here.) Because Advent Children Complete was released in glorious high definition, I uploaded the video in full HD to YouTube, which I think may have been the reason the video immediately triggered YouTube’s copyright filters, which blocked it because of a copyright claim by Square Enix Co., Ltd., the Japanese video game company that makes the Final Fantasy series.  Just as I have done each time one of my videos has been blocked by the YouTube Content ID system in the past because of the whole Warner Music debacle, I immediately disputed the copyright claim with the following statement:

The use of video footage in this video is fair use because it is (1) highly transformative, significantly altering both the content and message of the original; (2) noncommercial in nature; and (3) only uses a small fraction of the original.

I could also have added that the video could have no possible negative effect on the market for the original works, which is the fourth reason that the use of anime video content in AMVs is very likely fair use. Anyway, I thought that this would be the end of it. My video was restored and I verified that it was playable. However, barely five minutes later I got a notification from YouTube saying the video was blocked again, this time because of an actual DMCA takedown notice from Square Enix.

Because I am fairly confident my use of Final Fantasy footage in an AMV was fair use, I decided to go ahead and submit a formal DMCA counter-notification, which I generated with the handy counter-notification generator at ChillingEffects.org. By law, DMCA counter-notifications must contain the following five elements, as nicely summarized by YouTube:

  1. Identify the specific URLs of material that YouTube has removed or to which YouTube has disabled access.
  2. Provide your full name, address, telephone number, and email address, and the username of your YouTube account.
  3. Provide a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or San Francisco County, California if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
  4. Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
  5. Sign the notice. If you are providing notice by e-mail, a scanned physical signature or a valid electronic signature will be accepted.

As you can tell from the wording above, this is pretty serious stuff, as it could potentially open me up to a lawsuit, though that is incredibly unlikely, given that, according to the Electronic Frontier Foundation, no individual YouTube user has ever been sued over a remix video, and Square Enix would have to be incredibly stupid to bring the bad publicity on themselves of suing a fan for making a Final Fantasy tribute video on the eve of the release of Final Fantasy XIII in December. (Yes, that’s Final Fantasy thirteen – you can see how popular this series is.)

So, I submitted a counter-notification to copyright@youtube.com around 11pm EDT Sunday, and almost exactly 48 hours later at 11pm on Tuesday, I received the following message from YouTube:

Dear Patrick,

Thank you for your counter-notification. It has been forwarded to the party that sent the takedown notification. If we receive no response, your material will be restored between 10 and 14 business days from today.

Sincerely,

The YouTube Team

What this means in short is that Square Enix has 14 days to file a lawsuit against me, and if they don’t YouTube will restore my video. The ball is now in Square Enix’s court, so we’ll see what happens with that.

Analysis

1. Bad move for Square Enix

Now there are several things that are interesting about this situation. The first is that Sqaure Enix would go after YouTube videos at all, which is an incredibly stupid business decision. The Final Fantasy series is not only the best selling anime video game franchise in history, but THE most popular source for AMVs, with a search for ” ‘final fantasy’ amv” resulting in 122,000 hits on YouTube. Over 8,000 Final Fantasy AMVs are hosted at animemusicvideos.org. Final Fantasy fans love the series, and like true digital natives they like to express that love by making tribute videos–taking clips from the various Final Fantasy games and movies and setting them to their favorite songs. Many people then watch these videos and discover Final Fantasy for the first time, then go out and buy the games. Thus, AMVs serve as free advertising for the series, bringing in new fans and new sales for Square Enix.

While I don’t necessarily think Square Enix intended to go after AMVs by opting into the YouTube filtering system (I think they’re probably trying to catch people uploading FFXIII trailers or full scenes of Advent Children Complete), they must have known that YouTube’s filter’s would catch AMVs as well. A quick glance at AMV.org’s forums revealed I am not the only person who has had FF AMVs blocked, and some people have had their accounts deleted because of it. Taking advantage of YouTube’s filters therefore amounts to a declaration of war on Square Enix’s most loyal fans–the ones who love Final Fantasy so much that they take the time to make music videos in honor of it. This is a new low for Square Enix, which is already notoriously overprotective of its intellectual property. What’s more, it runs against the entire anime culture on which the FF series depends for its popularity in the first place. If they continue to block AMVs in this manner, they risk alienating their fan base, and that is a stupid business decision no matter what way you look at it.

2. DMCA Abuse

The second interesting thing about this situation is the manner in which it occurred, leading me to think there is a strong legal argument that Square Enix is abusing the DMCA takedown process by making bad-faith copyright claims. Specifically the timing of the notices and the fact that the DMCA takedown notice came less than five minutes after I disputed the initial automated filter identification.

One of the things the DMCA requires copyright owners to include in a takedown notice is, “A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”17 U.S.C. § 512(c)(3)(A)(v).

A federal district court in California recently held in Lenz v. Universal that this provision of the DMCA “requires copyright owners to make an initial review of the potentially infringing material prior to sending a takedown notice” and that this requires the copyright holder “to form a subjective good faith belief that the ‘particular use is not a fair use’ before sending the takedown notice.

Now, the timing in this situation is suspicious, because my video was re-blocked by a takedown notice only five minutes after it was unblocked when I disputed the automatic filter. This leads me to believe that the takedown notice was sent by some sort of automated system which automatically responded to my dispute of the filter by sending a formal takedown notice. That is unless Square Enix had lawyers working at their American headquarters in California at 6:20 pm PDT on a Sunday evening capable of firing off takedown notices less than five minutes after being notified of a dispute. (I’m assume the takedown notice did not come from their main headquarters in Japan). This means that the takedown notice was likely sent by a computer with no human intervention, and unless I’m seriously mistaken as to some legal precedent I haven’t heard of, a computer cannot formulate a good faith belief about anything, let alone whether a use qualifies as fair use or not.

It would thus appear Square Enix did not fulfill their legal duties to make an initial review of potentially infringing material and to form a good faith belief that it was not fair use. So if this ever did come to a lawsuit, they would be wide open to a counterclaim of sending a false takedown notice in bad faith and abusing the DMCA takedown process. Like I said, interesting…

UPDATE 10/27/09: VICTORY!!!

Last Friday night, October 23, I received the following message from YouTube:

Hi there,

In accordance with the Digital Millennium Copyright Act, we’ve completed processing your counter-notification regarding your video:

http://www.youtube.com/watch?v=u4Qs-YPVdRM

This content has been restored and your account will not be penalized.

Sincerely,

The YouTube Team

My video is now back up and running. Now if only other AMV makers whose videos were falsely blocked by Square Enix would fight back as I did.

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9 Responses to “Square Enix Abuses YouTube DMCA Takedown Process”

  1. Hi! I need help filing a DMCA thing. Pleeease help! I don’t know how to find out the addresses of the copyright holder(s).

    Penalty 1:
    “LeToya – She Ain’t Got Shit On Me [Lady Love – 2009] – HIGH QUALITY
    audio” formerly at http://www.youtube.com/watch?v=zAAGXynFji0
    Removed due to a copyright claim by EMI Music on 03/20/2009

    Penalty 2:
    “Beyoncé – Ego [Stereo Instrumental – filtered by THEJLG]” formerly at

    Removed due to a copyright claim by a third party on 05/21/2009

    Penalty 3:
    “JLS – Private | “JLS” | 2009 |” formerly at

    Removed due to a copyright claim by Sony BMG Music Entertainment on
    11/10/2009

    What I find suspicious is my second penalty was removed due to a copyright claim by an unnamed ‘third party’

  2. Okay, if you’re talking about filing a counter-notice on YouTube, you don’t need the addresses for the individual copyright holders. All you need to do is file one counter-notice with YouTube listing all the videos above, which you could just cut and paste into your counter-notice. A single assertion that all three videos are non-infringing is sufficient, and you would just email that to copyright@youtube.com.

    Everything else you need to know you can find here: http://www.google.com/support/youtube/bin/answer.py?answer=59826&query=counter&topic=&type=

    Just follow those procedures and you should be good.

  3. jonathan said

    Very interesting indeed.

  4. I think it is about time DMCA should go after scammer comunities who call themselves black hat but infact they are no better than theives.

  5. shewolf51 said

    Thankfully I’ve never had to fight so hard to get my videos back. Though, they’ve only ever been taken down by WMG.

  6. Why you guys feel your theft of someone elses creation should be protected by law is beyond me. Instead of remixing someone else ideas how about creating some of your own?

    • @Lonepanther – I’m afraid you simply don’t understand. First, the law does allow remixing, whether you like it or not. Things like anime music videos clearly fall under the fair use doctrine of US copyright law (at least with respect to the video; the music is less clear). Second, while not everyone has the ability to create something wholly new (i.e. animate their own movie), they do have the ability to create an entirely new piece of art by changing preexisting art into something new and different. While you may not see any value to AMVs, many people enjoy them and appreciate remixes like that as a valuable part of our new culture. Some of the most popular YouTube videos of the last few years have been remixes (such as the bed intruder song). So you can’t say there is no value in remix. Nor is remixing stealing someone else’s work, especially when you attribute to the original creator and add new value to the work. I’m sorry you can’t see that.

  7. Dear Mr McKay,
    I love your FF amvs and they led me to this website. I’m currently in an exact same situation and I’m afraid of filing a DMCA counter-notification. Can you advice me whether to proceed?

    Square Enix took down and copyright striked a “Lightning Returns” AMV of mine, and I’m hesitant of retaliating for fear that 1: my fanvid isn’t fair use and 2: a human from Square Enix in fact manually reviewed my AMV and somehow didn’t like it (they didn’t tell me why).
    It’s simply a regular fan AMV, a character study of Lightning and a fond farewell to the trilogy, set to Thomas Bergensen’s (of Two Steps from Hell) track “Merchant Prince” in it’s entirety. Youtube auto content ID blocked the vid worldwide for the music immediate upon upload, to which I disputed and received a Square Enix take down for visuals instead. Now I’m uncertain about proceeding because my AMV also includes in game dialogue and clips from the game’s ending. With the game being so newly released, is it a “competition in its market” because it includes “spoilers”? But so many commentary-less playthroughs/walkthroughs of “Lightning Returns” feature the same ending cutscenes, in full length without transformative editing, and are allowed on youtube.

    I spent three full days (good friday long weekend) editing this AMV and am eager to share it with youtubers who liked my previous FF13-2 fanvid. But am I exposing myself to unnecessary risks by sending this DMCA counter notification? Would they nano scrutinise all my other fanvids on youtube (that aren’t blocked) to try and penalize me? I am but a fresh college grad starting out plus, I’m not a US citizen, I’m outside of US. I can’t risk going to court with Square Enix without rock solid faith that my case is indeed fair use. And I’m currently at 99% committance. Can you advice me?

    Thank you for your efforts and information in this much needed cause and website.
    And thank you in advance if you do see this and respond.

    Thomaline

    • As I’ve said in my posts here and on my website fairusetube.org, I believe the use of the visual material in AMVs is absolutely fair use. It is highly transformative, only uses a small fraction of the original content, and does not compete with the original in any way. You should be fine filing a DMCA counter-notice. They never gave me any more trouble after this episode I wrote about.

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