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Samsung Forced YouTube To Pull GTA 5 Mod Video Because It Showed Galaxy Note 7 As Bomb (redmondpie.com)
An anonymous reader quotes a report from Redmond Pie: The Galaxy Note 7 wasn't just recalled, it was cancelled. For good. And that makes Samsung very cranky indeed. So when YouTube user HitmanNiko created a video showing a Grand Theft Auto 5 mod in which Galaxy Note 7 handsets can be used as grenades, it's perhaps somewhat understandable that someone inside Samsung took offense to the idea. What's incomprehensible though is the fact that Samsung has apparently set about trying to erase that video, and presumably others like it, from the Internet. The first step? Forcing YouTube to remove HitmanNiko's video. Trying to view the video now does nothing but display a message which says that the video is "no longer available due to a copyright claim by Samsung Electronics America" which leaves quite the bad taste in our mouths. The biggest issue here is that this is arguably the worst misuse of the DMCA we have ever come across, simply because nothing was copied, unless Samsung is trying to claim that by making the in-game grenades look like Galaxy Note 7 smartphones then the video creator was in fact in breach of copyright.
This was a trademark violation. And likely taken down under that context, not copyright. And it's legitimate if they used the word Samsung or Note 7.
Well not exactly, l the DMCA has a 7 step procedure that ends in a court battle. And is supposed to favor the accused until then.
I don't remember the steps exactly, but it's something like this:
Accuser files claim
Content removed
Accused contests claim
Content restored
Accuser reinstates claim
Content removed
Accused recontests claim
Content restored
Accuser is now supposed to file suit, and the outcome decides who owns the content and weather it remains up.
Problem is youtube only implements up to the 3rd step. (And sometimes even that is not available.) Basically they allow the first contestion, but do nothing about it, and your content remains down. This forces you to bear the burden of filing the lawsuit, and even if you win they make it difficult to get your content back up. Not exactly what the DMCA outlines, and favors the Accuser far more. This is also we whay makes it profitable to use it use bots to file claims. (If only it were illegal to implement it only partly)
Yes it will. Samsung just joined Sony on my "Do not buy" list.
Not even.
The phone isn't copyrighted. Its existence and a representation of it as a material fact can't be copyrighted. You can't copyright the existence and form of your product in such a way that, for example, a novel writer can't mention that a person was using a Samsung Note 3 and describe the functionality he was using. Those are material facts.
The phone is a trademark--or at least its visual form and its name are potential trademarks. You may be able to patent the production of a phone in that form (design patent), and trademark a particular shape of a phone (like the Gibson and Fender headstocks--yes, their brand-identifiable shapes are trademarked); that applies only to actually making a phone.
Samsung is legally-required to protect its trademarks, else they lose them. That means a number of things. It means you can't make a DogRun Galaxy 7 phone (especially in substantially-similar design to the Samsung offering) because Galaxy and Galaxy 7 are Samsung trademarks. It means you can't use the Samsung name to brand your phone. If you do these things, Samsung must take action, or else the next guy to do the same thing can point out that Samsung hasn't protected their trademark.
A reference to a trademark isn't a trademark infringement.
A reference to a trademark in a book, in a TV show, in a video game, in literature about your own product, wherever it is, does not infringe trademark. Trademark distinguishes products. If you make a phone and, in the literature, identify that it is distinct from the Samsung Galaxy 7 by pointing out that it has similar or superior battery life to the Samsung Galaxy 7, you haven't infringed trademark because you haven't identified your phone as a Samsung Galaxy 7.
That video isn't parody, by law; it's non-infringing. It's a non-infringing reference to a trademark and to the existence of a product. Artistically, it's satire: it explores an existing material fact with humor and exaggeration. Even if it had no artistic defense, there's no standing for any intellectual property claim--copyright, trademark, patent, or otherwise. Samsung's phones blowing up is a material fact; it might be over-emphasized, but it's a thing that happened in the world, and the phones are a thing that exist in the world, and the thing in the game is a representation of that thing and not a counterfeit product.
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Even in the case of very highly-paid CEOs though, the annual salary of that employee still won't sting a big corporation like Samsung very much. Now, make it 1% of their annual revenue, and then we're talking.
Personally though, I think the DMCA could be fairly easily reworked to put some parity between the parties into the system:
1) Forbid any automated, multiple, and/or electronic takedowns. Each takedown should be for a single alleged infraction, and delivered by registered mail, FedEx, or some other similarly-reliable delivery service that provides evidence of delivery.
2) Those claims of infringement need to be made by a single, identifiable, individual. It doesn't matter if that's the actual owner or their lawyer; so long as the claim can be traced back to that person claiming, under penalty of perjury, that the content is owned and infringing.
3) Give the "under penalty of perjury" part some teeth. If the content is not actually owned by the claimant, covered by fair use, or in any other way determined to be non-infringing; the individual from step 2 above goes to jail for perjury. I think a nice schedule would be:
1st false claim: 30 days in county.
2nd false claim: 90 days in county.
3rd false claim: 1 year in state, plus felony conviction on their criminal record and disbarment if the claimant is a lawyer.
Three simple steps. And I'd bet that we'd eliminate nearly all false and frivolous DMCA claims; but, more importantly, equalize the risk and power differential between the plaintiff and defendant.
Imagine all the people...
I don't think copyright is totally bad. For example, I recently published my first novel. Without copyright law, someone else could grab my novel and start printing/selling their own copies of it. I'd wind up competing with my own novel. Then there are issues of film studios being able to take anyone's work and make movies based off of it without compensating the author at all. I'd have to spend a lot of time and money filing lawsuits to make them stop and, without copyright law, I might not be successful.
That is a good point. Without copyright, not only would you compete against yourself when selling your own book, it would annihilate any control directly related follow on work -- movies, book sequels, etc.
Removal of copyright would have far reaching consequences to the entertainment industry and software industry. Many people here on slashdot think that software patents are mostly bad, and we should fall back on copyright. Well, gee, do we really want to categorically remove the concept of intellectual property?