The Prelator

Weblog of Patrick McKay

Posts Tagged ‘DMCA’

SOPA, Private Copyright Enforcement Systems, and Free Speech

Posted by darklordofdebate on January 19, 2012

Throughout the debate over the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), there has been one refrain commonly invoked by the pro-copyright, anti-internet crowd. “There is no first amendment right to infringe someone’s copyright.” Or “copyright and free speech do not conflict.” Leaving aside the obvious fact that the Supreme Court has repeatedly stated that there IS in fact a first amendment right to make unauthorized use of copyrighted material under the fair use doctrine, the idea that copyright and free speech do not conflict is demonstrably false.

At its heart, copyright law is a censorship mechanism. It is a way to grant one person or entity a monopoly on certain speech and deny all but those declared to be the “owners” of that speech the right to use it for their own expression. We believe this is justified because it provides financial incentives for speech, and indeed it seems reasonable that people should be entitled to benefit from their creative works. But we must always remember that, at its core, copyright is nothing less than the government dictating who may speak and who may not. Given this, there will ALWAYS be some degree of tension between copyright law and freedom of speech–between the Copyright Clause of the Constitution, and the First Amendment. To say that there is no conflict between copyright and free speech is simply wrong.

The conflict between copyright and free speech can be clearly seen when copyright laws are abused and used to censor speech that does not infringe anyone’s copyright. While the pro-copyright lobby may claim otherwise, the truth is such abuses are both common and widespread. In light of bills like SOPA and PIPA which propose dramatically expanding the powers of both the federal government and private copyright owners to enforce copyrights, it is important to keep in mind the ways in which copyright is abused under existing laws, and the potential for even greater abuses should these bills pass.

Now that outright DNS blocking and the horrible “private right of action” provisions have been removed from SOPA and PIPA, one of the most dangerous remaining provisions is the section granting “immunity” to search engines, payment processors, and ad-serving networks who “voluntarily” decide to cut-off services to websites which they decide “facilitate” copyright infringement. As many people have pointed out, this will most likely result in a process similar to the existing DMCA takedown process, whereby service providers who are notified by copyright claimants that a particular site “facilitates” copyright law will immediately move to cut-off service to that site for the sake of avoiding liability, regardless of whether that site actually violates copyright law in any way.

This is exactly how every content hosting service in existence, from Google to YouTube to Facebook to file hosting sites like Megaupload and Rapidshare (the ostensible targets of SOPA) currently respond to takedown notices under the DMCA. But the “voluntary” blacklists created by private companies under SOPA would have none of the safeguards included in the legally mandated DMCA takedown process, such as the opportunity for accused infringers to file counter-notices and get their content restored. Under SOPA, while companies are encouraged to cut-off service to sites which are accused of piracy, they have no corresponding obligation to restore service if the allegation turns out to be false. The result will be the establishment of private copyright enforcement regimes administered by corporations with no accountability, no safeguards against abuse, and no mechanism for appeal.

How do I know this? Because this is exactly what has happened on YouTube, which currently runs the largest private copyright enforcement regime in existence under the guise of its “Content ID” program. As a YouTube video creator who frequently employs fair use in order to make unauthorized use of copyrighted content in YouTube videos, and because of my work advocating for a fairer copyright enforcement system on YouTube through my website, FairUseTube.org, I have been in a position to see just how often such private copyright enforcement systems are abused.

Under YouTube’s Content ID system, every video that is uploaded is automatically scanned against a vast database of copyrighted works contributed by YouTube’s Content ID partners. If either the video or audio content matches the digital fingerprint of a sample in YouTube’s database, the system applies the copyright owner’s preselected policy to either block the video outright, allow it to remain up but track its view statistics, or “monetize the video” by taking a cut of the revenue from ads embedded in the video page. While on the surface this seems like a great way for YouTube to allow users to upload videos which use copyrighted content while allowing copyright owners to still make money from their otherwise unauthorized use, the system has two fatal flaws: (1) Content ID matches are notoriously inaccurate and wide-open to abuse, and (2) there is no effective way to appeal mistaken identifications or even blatantly false and fraudulent claims.

First, once an entity is accepted as a partner in YouTube’s Content ID program,YouTube apparently does not require copyright claimants to submit any proof that they own the copyright to works which they upload as reference files. There have been numerous reported cases of unscrupulous companies submitting works that are either in the public domain or are simply not owned by them into the Content ID database.  This allows them to claim ownership of, block, and/or receive ad revenue from, videos which they do not own any copyright interest in whatsoever. Even when there is a legitimate copyright involved, the Content ID system is often unable to tell a copyrighted work from a non-copyrighted one. This problem is especially severe with regard to recordings of classical music, where the music itself is in the public domain, but specific recordings may be subject to copyright. The Content ID system cannot tell one recording of the same classical song from another, and thus people who have legally used recordings of classical symphonies that were either in the public domain or that they have legally licensed from a third-party music library (and in some cases even performed themselves) have found their videos misidentified as containing a copyrighted recording owned by someone else.

Misidentification or even fraudulent copyright claims would not be so bad if there was a means to appeal such false-positives and punish users who abuse the system. But in fact there is not. While YouTube maintains a nominal mechanism for “disputing” false or mistaken Content ID matches, this dispute system is a joke. This is because the person who gets to decide whether to accept the user’s dispute is none other than the copyright claimant himself.

When a user files a dispute, the Content ID claimant is given three options: (1) release the claim, (2) have the video taken down via a formal DMCA claim, and (3) reinstate the Content ID claim. While the first option removes the false claim entirely and the second invokes the formal DMCA takedown process under the law (allowing the user to send a DMCA counter-notice and get their video restored that way), the third option reinstates the Content ID match, allowing the claimant to either block or receive all the ad revenue from a video, with no further opportunity for the uploader to appeal. Instead, the user is greeted merely with a message that the copyright owner has “confirmed their claim” to the content. If the user attempts to contact YouTube to further appeal a false claim, they are told that their only option at this point is to convince the claimant to retract their claim.

Through this process, YouTube gives copyright claimants the ability to essentially be the judge in their own cases–giving them sole discretion whether or not to accept a dispute against their copyright claim. As experience has shown, Content ID claimants almost universally choose to “reinstate” their claims (likely through an automated process or merely clicking “select all” in the list of disputes). As a result, the Content ID dispute process is next to useless, and those who attempt to dispute a mistaken identification or claim fair use, will most likely find their video re-blocked through Content ID in a matter of days after they file their dispute, with no further recourse or opportunity for appeal.

It is important to note at this point, that everything YouTube has done is perfectly legal under current law. Nothing today prevents companies from establishing their own private systems of copyright enforcement which go far beyond the process prescribed in the DMCA, and which contain none of its safeguards against abuse. In YouTube’s case, Content ID exists alongside the DMCA process, as the DMCA provides an alternate means by which videos can be removed for copyright infringement. But while YouTube originally intended Content ID to serve as a kind of front-end buffer to the DMCA process, allowing users to have recourse to the DMCA counter-notice process in the event a Content ID dispute was rejected, that option no longer exists. Instead, Content ID has almost completely supplanted the DMCA process as the primary means of copyright enforcement on YouTube, and users who have videos permanently blocked by Content ID have no recourse to DMCA counter-notices.

It is under this context that, when last month Universal Music used the Content ID system to have an original commercial by Megaupload taken down without having any legitimate copyright claim against it, Universal could plausibly claim in court that they could use YouTube’s private system to block the video without being subject to any of the penalties for fraudulent copyright claims under the DMCA. It is this system that has allowed unscrupulous companies like GoDigital to illegally hijack ad-revenue from hundreds of original videos using legally licensed royalty-free tracks from third-party music libraries. And it is this system that has allowed others to claim a monopoly on royalty-free music loops and samples provided with popular software such as iMovie and GarageBand, effectively preventing anyone else from using them in YouTube videos. All of these are documented cases of flagrant abuse, with dozens of complaints on YouTube’s help forums that the company has systematically ignored and failed to act upon. (To read more about these specific cases, click here.)

The reason for that is simple. The current law simply provides no incentive for companies like YouTube to protect their users against false and abusive copyright claims. YouTube would much rather placate major copyright holders like Viacom and Universal Music and avoid expensive lawsuits than stand up for users’ rights by forcing copyright claimants to prove a valid copyright interest in videos alleged to be infringing, or in the very least provide an effective means to appeal false copyright claims.

While Google was one of the most vocal parties involved in yesterday’s protest against SOPA, their own system which they have built on YouTube provides a clear example of exactly what we can expect if SOPA passes. When private service providers are deputized to become enforcers of copyright law with no incentive to defend individual users, they will invariably sacrifice the free speech rights of their users for the sake of avoiding expensive lawsuits. YouTube has shown us that nothing good can come of privatizing copyright enforcement, which only serves to harm freedom of speech online.

Imagine how much worse it would be, if instead of specific content being subject to such arbitrary blocking as YouTube currently employs, entire websites could be cut-off from all financial services and revenue sources by the mere accusations of big media companies. What would happen if, instead of individual YouTube videos getting blocked, YouTube itself was de-listed from search engines and denied its life’s blood in ad revenue, with no opportunity for appeal? That is what would happen under SOPA. Let us take warning from YouTube’s own practices, before YouTube itself finds itself in the cross-hairs.

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Falling Through the Cracks in YouTube’s Copyright System

Posted by darklordofdebate on August 23, 2011

Over the last few months, I have become increasingly aware of a fatal flaw in YouTube’s copyright enforcement regime, which frequently leaves non-infringing videos blocked for supposed copyright reasons with literally no recourse for the user and no way to dispute the copyright block.

YouTube’s copyright policies are confusing enough to begin with, as unlike most other video sharing sites, YouTube has not one but TWO overlapping copyright enforcement systems–it’s automated Content ID system, and the regular DMCA takedown regime that all content hosting sites are required to follow by the Digital Millennium Copyright Act.

Videos can be blocked/taken down by either system, and each system has its own process for filing a dispute.  If a video is subject to a DMCA takedown notice (which must meet standards established by law), it shows up in your account as “rejected for copyright infringement,” and there will also be a strike placed against your account, which will cause your account to be terminated upon the third strike. If your video makes fair use of the copyrighted content in question or the claim is false, you can file a DMCA counter-notification (also specified by law), and your video will be restored after a waiting period of approximately three weeks.

If a video is identified by YouTube’s automated, media fingerprinting “Content ID” system as containing content by a copyright owner enrolled in the Content ID program, several things can happen. The video can remain viewable, but “monetized,” meaning adds will show next to it; it can be blocked entirely (either worldwide or in selected countries), or in the case of audio-only matches, the sound can be muted. These videos show up on your “My Videos” page as having “matched third party content.” Because this is all done by computer and no form of DMCA takedown notice has been sent, videos blocked in this manner do not cause a strike to accrue against your account. If you want to dispute a Content ID block, there is an easy dispute form which you can fill out, which in most cases will cause the video to be automatically and immediately restored, though it does send a notice of your dispute to the copyright owner.

Here’s where things get tricky, since the copyright owner then has the opportunity to respond to your dispute. Often they will simply ignore it, and after a few months the “View Copyright Info” page for that video will display a message saying “dispute successful” and the content match will soon disappear entirely. On the other hand, what happens if the copyright owner still believes the material is infringing? According to YouTube, this is what is supposed to happen:

If you feel your video has been misidentified by the Content ID system, you can dispute the identification. This involves filling out a short form listing the reason for your dispute. We then notify the content owner whose reference material was matched. The content owner will then review the match. If the content owner disagrees with your dispute for any reason, they will have the option to submit a copyright takedown notice which will result in the disabling of your video and/or penalties against your account. To avoid penalization, only submit legitimate dispute claims.

In other words, if the copyright claimant does not accept your dispute, they have the option of escalating to a formal DMCA takedown notice, in which case YouTube’s other copyright enforcement system kicks in, the video would be taken down again, and a strike would be issued against your account. The user would then have the right to dispute a second time using a DMCA counter-notice, and have the video restored once again. According to the DMCA, this is where the process ends, since only if the copyright claimant notifies the service provider that they intent to file a lawsuit seeking an injunction against your video can the service provider leave it offline. Otherwise they are supposed to restore it after the waiting period established by law.

This is how the copyright dispute process on YouTube is supposed to work: Content ID match (video blocked) -> Content ID dispute (video restored) -> DMCA notice (video re-blocked) -> DMCA counter-notice ->(video restored unless notice of lawsuit given). This is not how it works practice however.

Sometime in the last couple years, YouTube has quietly started acting in a different way, contrary to their stated policy. Instead of requiring copyright owners to file a formal DMCA notice in response to a Content ID dispute, thus allowing users to invoke the DMCA counter-notice process, YouTube allows copyright owners to somehow “confirm” their copyright claim through the Convent ID system and re-impose whatever blocks were originally in place through Content ID. In this case, a message will appear on the user’s “View Copyright Info” page for that video saying, “All content owners have reviewed your video and confirmed their claims to some or all of its content.” After this, as far as I can tell, there is absolutely no way for the user to file a dispute and get their video restored.

I had been hearing reports about this happening for months. Because of my website, fairusetube.org and the video tutorials I have posted on YouTube regarding fair use and the Content ID dispute process, people have been posting comments and sending me messages about this for a while. But until last week, it had not actually happened to me (at least where the video was blocked in the U.S. where fair use applies). Then last week, I noticed one of my older anime music videos was blocked pretty much everywhere, including the U.S., by Content ID. I filed a dispute as I have many other times, and the video was unblocked for a few days, and then re-blocked with the message above. No further Content ID dispute was possible, because the record of my original dispute was still there. And when I tried filing a DMCA counter-notice (I tried twice, using both YouTube’s counter-notice webform and a counter-notice emailed to copyright@youtube.com), all I got was an automated response essentially telling me this is a Content ID issue not a DMCA issue. Other emails I have sent about this to YouTube’s copyright support address have gone unanswered.

So I’m stuck. My Content ID dispute was rejected, but in a manner other than a DMCA takedown notice, so I am not allowed to take advantage of the DMCA counter-notice process. It appears there truly is no recourse for this situation. My video is blocked, and there is simply no process to file a further dispute and get my video restored again. Contrary to both the takedown process established by law and YouTube’s own stated policy, the condition at the end of the process is that the user’s video remains blocked, rather than remaining up unless notice is given of pending legal action over the video.

This situation is frankly outrageous. It was bad enough when YouTube created the Content ID system in the first place, imposing automated blocks on videos with no regard for fair use. It is even worse now that this system apparently has no effective means of dispute, since whenever a copyright owner chooses to “confirm” their claim (as anecdotal evidence suggests they are doing with increasing frequency), there is nothing users can do to fight it. They are literally stuck in a gap between YouTube’s two competing copyright systems–a black hole which YouTube does not acknowledge even exists, and which, to my knowledge, no one else has ever addressed either. Something must be done about this, since until YouTube’s policy in this situation changes, many videos that are perfectly legal and non-infringing will continue to be unjustly blocked by Content ID with no recourse.

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New Copyright Rules Allow DRM Circumvention for Remix Videos

Posted by darklordofdebate on July 26, 2010

Well this is some of the best news I have heard in a long time! As described in this press release by the Electronic Frontier Foundation, the Librarian of Congress just issued his new list of approved exceptions to the anti-circumvention provision of the Digital Millennium Copyright Act (DMCA), which prohibits circumventing any type of digital copy protection even if the intended use is otherwise authorized by copyright law. The statute directs the office of the Librarian of Congress to conduct a review of this provision every three years and authorizes it to make new exceptions to it as it sees fit. The new exceptions just announced today go much further than previous ones, and include broad exceptions for jailbreaking smart phones (a direct slap in the face to Apple), enabling read-aloud features on e-books, security research on copy protection mechanisms in video games, and the right to circumvent CSS copy protection on DVDs in order to use short clips from motion pictures to create new, transformative works for purposes of commentary or criticism.

While most news sites and blogs will no doubt focus on the ability to jailbreak iPhones and iPads (which really won’t have that large an impact since that doesn’t prevent Apple from trying to stop you or invalidating your warranty if you do it), I would like to focus on the exemption for DVD decrypting. The exact wording of this exception is as follows:

(1)  Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;

(ii) Documentary filmmaking;

(iii) Noncommercial videos

The educational exception is only slightly expanded beyond what it previously covered, and the Librarian draws at least what in my mind is an utterly arbitrary and baseless distinction between university students and professors and students and teachers at the K-12 level. The Librarian gives absolutely no explanation for why students and teachers in a university setting deserve the ability to use high quality footage ripped from DVD, while elementary and high school students do not.  All the ruling says is, “proponents for educators failed to demonstrate that high quality resolution film clips are necessary for K12 teachers and students, or for college and university students other than film and media studies students.” The documentary exception, while important, is also of only limited utility since it applies to a very small class of people–documentary film makers.

The most important of these categories is the third, which encompasses most forms of non-commercial “remixing” of movies and TV shows that have become popular on user-generated video sites like YouTube. This exception allows anyone wanting to incorporate brief clips of movies and TV shows in a non-commercial (meaning not for profit) video such as an anime music video or film mashup, is now free to use a program such as DVD Decrypter to rip DVDs to their computer so they can use the footage in their video. Before the passage of this rule, even if the actual use of the footage in a video was fair use, an amateur video creator could still have faced potential liability for breaking the copy protection on the DVD in order to make their video.

In issuing this new exception, the Library of Congress finally recognized what the EFF and others have been saying for years:

What the record does demonstrate is that college and university educators,
college and university film and media studies students, documentary filmmakers,
and creators of noncommercial videos frequently make and use short film clips
from motion pictures to engage in criticism or commentary about those motion
pictures, and that in many cases it is necessary to be able to make and
incorporate high quality film clips in order effectively to engage in such
criticism or commentary. In such cases, it will be difficult or impossible to
engage in the noninfringing use without circumventing CSS in order to make
high quality copies of short portions of the motion pictures.

While that quote seems clear enough, the ruling does include some caveats which muddy the waters somewhat. In order to qualify for the exception, three conditions must be met:

  1. The final video must use only short clips from the original motion picture, for purposes that already qualify as fair use such as commentary or criticism.
  2. The clips must be incorporated into a new work. In other words, the use must qualify as transformative under the existing fair use criteria.
  3. “The person engaging in the circumvention must reasonably believe that the circumvention is necessary in order to fulfill the purpose of the use.”

The first two conditions are pretty straight forward and both tie in to the existing criteria for fair use, which favor uses that take only a small portion of the original use and use it in a transformative manner. Simply taking unedited clips of movies and TV shows, even if they are short, and posting them on YouTube doesn’t qualify for the exception. However, the third condition is rather vague, since it remains unclear under what circumstances a person may reasonably believe circumvention is necessary. The ruling appears to make it an issue of video quality:

Because alternatives to circumvention such as video capture may
suffice in many, and perhaps the vast majority of situations, users must make a
reasonable determination that heightened quality is necessary to achieve the
desired goal. The justification for designating this class of works is that some
criticism and/or commentary requires the use of high quality portions of motion
pictures in order to adequately present the speechrelated purpose of the use.
Where alternatives to circumvention can be used to achieve the noninfringing
purpose, such noncircumventing alternatives should be used.

Thus the idea seems to be that if another means of obtaining the desired footage (albeit in a lower quality) would suffice, you should do that, and breaking copy protection is only allowed when the use requires a higher quality than could be obtained through those other means. How exactly a court would decide when exactly that is, I have no idea. At least in my opinion as someone who makes these kinds of remix videos, I can’t imagine a situation where I would be satisfied with methods like screen capturing (which the Librarian cites as an example) or cam-cording a TV screen (the MPAA’s suggestion). Both of those methods produce horrible quality video far inferior to that which can be obtained by simply ripping the DVD to your hard drive and transcoding it to an easily edited AVI file. To require video creators on YouTube to use those kinds of methods instead of ripping would forever relegate them vastly inferior quality. Hopefully if the issue ever came up the courts would be satisfied by the video creator’s subjective judgment that the quality obtained by ripping the DVD was preferable to the alternatives.

Another thing I have questions about is the scope of the rule. While the rule specifically mentions CSS protection on DVDs and appears on its face to be restricted to that, I wonder if courts might construe it to apply to other similar types of copy protection, such as the AACS copy protection used on Blu Ray discs or the copy protection used on digital movie downloads from iTunes or Amazon. Since HD video is rapidly increasing in popularity both in general and in user-generated content on sites like YouTube, it makes little sense to restrict this exception to one particular type of copy protection used only on lower quality standard definition recordings, when the principle behind the rule clearly applies to all types of video copy protection. It is also disappointing that the Librarian restricts the ruling to only apply to motion pictures, and specifically excludes other audio-visual works such as video games, even though in reality footage from video games is used in remix videos almost as often as films (my own Final Fantasy music videos, for example).

Despite these limitations which make the new rule not as good as it could have been, it’s an important first step in recognizing the fair use rights of internet users to make non-commercial remixes of popular video content. Remixing is a growing art form that is an important part of the new participatory media culture that is thriving online, and it’s nice to see the government finally starting to recognize the legitimacy of that culture by protecting the right to rip DVD footage to produce these types of transformative works.

Now in honor of the new rules, I think I will add a tutorial on how to rip DVD footage and import it into video editing programs to my website, FairUseTube.org!

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How to Dispute YouTube Copyright Notices

Posted by darklordofdebate on March 12, 2010

How to Dispute YouTube Copyright Notices

This is a video I made yesterday describing how to dispute copyright claims on YouTube and have videos restored that are blocked by YouTube’s automated Content ID system.

This marks the official launch of my new website: FairUseTube.org which is dedicated to promoting awareness of fair use rights under copyright law on YouTube and similar user-generated content sites. Check it out!

Posted in Copyright, Law, Technology, Technology Law | Tagged: , , , , , , , , , | 1 Comment »

Universal Music Takes Down “The Day ObamaCare Died”

Posted by darklordofdebate on February 14, 2010

The latest casualty of unjustified DMCA takedowns on YouTube appears to be the recent viral video hit “The Day ObamaCare Died,” which hit the web in October 2009 and was especially popular soon after Scott Brown’s stunning victory in Massachusetts last month. The video was originally created by YouTube user HerBunk, and featured a parody of the song “American Pie” (originally by Don McLean) sung by Obama sound-alike Paul Shanklin. The animated video was an instant online sensation, especially among conservative and Republican bloggers, for its humorous portrayal of President Obama lamenting the defeat of his monstrous health-care bill. Now that video is no more.

HerBunk posted the following video statement on YouTube on January 25:

I made “The Day ObamaCare Died” and I uploaded it in October 2009. I put in about 30 hours of work in making the video. My copyright for the use of the song was challenged almost immediately by Universal Music Group (WMG). I beat that challenge because I had received Paul Shanklin’s permission for the use of his song. UMG owns the rights to the Don Mclean song “American Pie” also known as “The Day the Music Died” and persisted in their objections to my video on YouTube. In Dec 2009, when it had almost 700,000 hits, YouTube folded and told me that despite the fact that I wasn’t infringing on UMG’s copyright they had a contractual agreement with UMG and told me to remove the video or they would close my account permanently for failing to comply with YouTube’s “terms of service.” I removed the video. Even though ObamaCare may really be dead, I apologize for not being able to sustain the protest against it.

When I commented on this posting asking if he had filed a DMCA counter-notice, he replied:

There is no copyright case against me. I filed a counter-claim and proved that I have permission to use the song. UMG doesn’t want it on YouTube. I was told by YouTube that due to their contractual agreement with UMG they have to honor UMG’s request. If I attempt to upload the video again on YouTube my account will be terminated for violating YouTube’s terms of use. The video is still alive elsewhere on the internet.

If this is the case, this is a sad state of affairs indeed. If his statement is accurate, it seems both YouTube and Universal acknowledge that Universal has no copyright claim against the video. This is certainly true as this video is a prime example of precisely the type of speech the Fair Use Doctrine of U.S. copyright law was designed to protect–a politically motivated parody that is transformative and non-commercial in nature and in no way competes with the market for the original song, yet because of its controversial subject matter it would be highly unlikely to ever secure the copyright holder’s authorization.

What’s troubling here is that Universal and YouTube appear to know that, yet Universal insisted on censoring the video anyway, and YouTube was forced to play along because it doesn’t want to alienate Universal. While YouTube does have a contract with Universal allowing UMG’s songs to be used in YouTube videos, I highly doubt that contract requires them to censor any video Universal doesn’t like even where Universal has no legitimate copyright claim against it. This is a simple case of two large companies teaming up to abuse copyright law in censoring legitimate political speech.

Anyone who values the right to free speech that we enjoy in this country should be outraged by this move, and personally I hope that the Electronic Frontier Foundation may take notice of this incident and file a lawsuit to stop this outrageous behavior.

In the meantime, I found a copy of the video on another video site and have re-uploaded it to YouTube under my own account. Maybe I will have better luck keeping it online than the original creator. You can view the video below. Please pass the word about this video and let Universal and YouTube know that they cannot get away with abusing copyright law to censor non-infringing political speech.

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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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