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Fox 'Stole' a Game Clip, Used It In Family Guy and DMCA'd the Original (torrentfreak.com)
An anonymous reader shares a TorrentFreak report: This week's episode of Family Guy included a clip from 1980s Nintendo video game Double Dribble showing a glitch to get a free 3-point goal. Perhaps surprisingly the game glitch is absolutely genuine and was documented in a video that was uploaded to YouTube by a user called 'sw1tched' back in February 2009. Interestingly the clip that was uploaded by sw1tched was the exact same clip that appeared in the Family Guy episode on Sunday. So, unless Fox managed to duplicate the gameplay precisely, Fox must've taken the clip from YouTube. Whether Fox can do that and legally show the clip in an episode is a matter for the experts to argue but what followed next was patently absurd. Shortly after the Family Guy episode aired, Fox filed a complaint with YouTube and took down the Double Dribble video game clip on copyright grounds. Perhaps YouTube should also be blamed for this.
No, Don't blame Fox. Don't blame the MPAA. Don't blame the RIAA. And surely don't blame Congress...
The blame lies directly on the consumers and voters, nowhere else. It's simple math.
Good idea: place the blame squarely on the only group that had nothing to do with the problem and have no power to fix anything.
Why should they be blamed for following the takedown process that the MPAA/RIAA forced upon them?
Did the MPAA/RIAA force Youtube to make it as easy as they did? Admittedly, I would probably just not care and give them an automated system as well, but I still think that deserves some blame.
Mainly for failing to perform any checks to see if the party filing the DMCA notice actually has the authority (i.e. copyright ownership) to be able to enforce the notice.
However, such checks would go a long way toward invalidating the defense used by media companies who abuse the DMCA provisions when faced with such patently absurd filings - that they filed this specific request in error as a result of a failure of an automated reporting system, and that nobody at the media company making the filing was aware that the filing was incorrect. In the meantime, sanctions related to the number of DMCA notices received against content uploaded by specific accounts remains triggered even when many/most of the notices are shown to be bogus/in error, meaning that there is no incentive for the media companies to change and there are no satisfactory mechanisms in place for small uploaders to recover their content/challenge the behaviour.
Youtube makes takedowns exceptionally easy, but the process of getting a video put back up can take months and there are no repercussions for a bad takedown.
Remember the other part of the DMCA safe harbor bits -- you need to take the video down immediately, but if the person says to put it back up, it becomes squarely that person's legal issue, not Youtube's. Youtube is not adequately capturing this workflow.
Then again, it's not clear if these takedowns are actual DMCA requests or if it's just an agreement Youtube has. I know that Youtube supports both.
Because instead of brainlessly taking down any video because of a DMCA request they could run it through a sanity check first, but that would take a little bit of effort, so its just easier not to piss off the people with money to sue you.
Or, howabout they just follow the longstanding and bright-line Doctrine of "Innocent until PROVEN guilty", and just refuse to take down the ALLEGEDLY "offending" video until a COURT ORDER is issued?
Anything else (and any law to the contrary) is blatantly Unconstitutional, and void ab initio. I could care less what the DMCA STATUTE says. The Constitution trumps all.
No Court could find differently; and it's HIGH-TIME that that was Tested...
I could care less what the DMCA STATUTE says.
I, on the other hand, could not.
The DMCA doesn't require the party filing the DMCA notice to provide YouTube a copy of the original so they can compare. All it requires is that they claim they own the legal copyright that the other work is infringing.
The problem is that the DMCA (being written by the copyright industry for the copyright industry) provides no punishment, no discouragement for invalid claims. The only punishment is if the filing party knows they don't own the copyright but files the claim anyway. That is, the filing party can always say "I thought I owned the copyright, but I guess I was wrong" and get away with it without even having to say "I'm sorry." That's what's led to the copyright industry filing DMCA claims willy nilly with little regard for accuracy.
> [Youtube should be blamed] mainly for failing to perform any checks to see if the party filing the DMCA notice actually has the authority
That's not the way the law works. Under DMCA, Youtube isn't the judge and jury, they don't have any subjective decisions they are allowed to make. Youtube has little to no choice here. Here's the process that the DMCA law specifies:
1. Complainant notifies hoster (youtube) that they claim infringement.
2. Youtube may immediately contact respondent (uploader).
3. Youtube temporarily disables the content.
4. Respondent may send Youtube a counter-notice, saying that they dispute the original DMCA notice.
5. Upon receiving counter-notice, Youtube re-enables the content.
6. Complainant may file suit in federal court (expensive).
The process is pretty well set in stone by law. The one place where Youtube has some choice to make is that they have to disable/remove the content "quickly", but how quickly? A host can choose to contact the uploader and give them 24 hours to counter-notice before removal, or they can remove it right away and put it back when they get a counter-notice.
I wish more people understood the counter-notice part, meaning the content goes right back up if you dispute the notice. You just reply saying "this notice must have been sent by mistake" and sign it (forms are available online). If more people understood about counter-notices and an amendment to the law added statutory damages for reckless filing of improper notices, the system would probably work pretty well. As it is, reckless notices aren't penalized enough to matter, and most people seem to think that there's nothing they can do if they are on the wrong end of an erroneous notice. Just send back a counter-notice. You don't have to argue your case, just state that you think the notice is wrong and leave it at that.
Innocent until proven guilty applies to criminal cases. A DMCA takedown notice isn't a criminal case. The only thing that matters here is statutory law.
The correct response to this kind of abuse is to track down the lawyer who signed his name to the takedown notice (it's not valid takedown notice without it) and prosecute him for perjury (since he swore under penalty of perjury that it was accurate and that he represented the copyright holder).
The first time a lawyer gets prosecuted for perjury, we'll see a hell of a lot less abuse of DMCA takedown notices. If it ever happens, which isn't likely.
If everyone hosted their own content from their own systems we wouldn't have these problems. If the demand existed we would trivially have the capability to publish easily. Sane naming and caching architectures either P2P and or hosted by ISPs that don't discriminate and play favorites like current CDNs would be widely deployed to facilitate distribution.
The more everyone sucks on the teet of big content to do EVERYTHING for them the more the Internet becomes Cable TV. The more capabilities are not exercised the more impossible and outlandish it seems to do anything for yourself.
While youtube is convenient the opportunity costs in allowing a handful of companies to own a majority of eyeballs and bandwidth are enormous.
The very premise of the Internet is that it is a network of PEERS not a network of SPECTATORS.
Sure, but the algorithm could be a bit smarter. In this case, checking the post date of the alleged infringing video against the air date of the Family Guy episode would be enough to suspect it's not infringing.
In other words, the perjury charge isn't about claiming copyright when you don't own the copyright. It's about claiming you're authorized by the copyright owner to enforce the copyright on their behalf, when you're not. There is basically no penalty for filing a false DMCA claim; the only penalty (perjury) is if you know the claimant doesn't own a copyright and file a DMCA notice anyway. The copyrighted work doesn't even have to be anything like the video being taken down - as long as the copyright owner alleges the video is infringing, the person filing the DMCA notice gets a free pass.
It's a terrible law with no checks and balances.