by Ellen Seidler | Copyright, Piracy, Tech
Last week Nintendo began notifying YouTube users that had uploaded content containing footage from its games that it would be claiming the videos for purposes of monetization. It’s fairly routine on YouTube for content owners like musicians and movie companies to claim and monetize user uploaded content which they own the rights to.
In a statement released via Game Front Nintendo officials explained their rationale this way:
As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.
For more information please visit http://www.youtube.com/yt/copyright/faq.html
For those familiar with YouTube’s Content ID system (explained in an earlier blog post) Nintendo’s position doesn’t seem far-fetched. However, for many Nintendo fans who earn money off uploaded excerpts of their Nintendo-based “let’s play” game scenarios to YouTube, the news was met with outrage. The Game Front story linked to a Facebook post by Zack Scott, a YouTube user impacted by Nintendo’s move. Scott wrote:
With that said, I think filing claims against LPers is backwards. Video games aren’t like movies or TV. Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don’t need to see it again. When I see a game that someone else is playing, I want to play that game for myself! Sure, there may be some people who watch games rather than play them, but are those people even gamers?
Now, while it is true that each gamer controls the game, it’s hard to get around the fact that the game infrastructure, graphics, characters, etc. is all owned by Nintendo. Just because one can make the game scenarios play out according to a player’s choices does not appear to trump this truth, at least not in legal terms.
For a legal perspective on Nintendo’s move I asked Terry Hart, who blogs at Copyhype and serves as Director of Legal Policy at the Copyright Alliance, for his opinion:
You are correct in that Nintendo has legal grounds to claim “Let’s Play” videos. In Red Baron-Franklin Park v. Taito Corp. (1989), the Fourth Circuit held that the operation of a video game in a public place is a public performance, one of the exclusive rights of a copyright owner. Congress added an exception to the public performance right the following year to reverse the decision (17 U.S.C. § 109(e)), but the exception applies only to “electronic audiovisual game[s] intended for use in coin-operated equipment.” Any operation of a video game to the public outside that exception is a public performance, and this would include a performance made via a site like YouTube.
For their part, gamers also argue that Nintendo will lose fans (and market share) by making such a move, but that threat seems overblown. Nintendo is not blocking the videos. Gamers will still be allowed to upload their game footage (and commentary) but it will be Nintendo–not the uploader–who reaps the financial reward.
On YouTube you’ll find any number of video/music mash-ups monetized by the artists (Justin Bieber, One Direction, Kelly Clarkson, etc.) and distributors that own or license the content. Few argue with that. Why should Nintendo-generated fan content be any different?
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YouTube has remained mum so far. They pocket their share of the ad revenue either way so it’s a wash for their bottom line.There are YouTube users who try to make money by uploading and monetizing content (like movie trailers) owned by others, but they have no legal leg to stand on. Some argue, like the gamers have, that the uploads generate more “exposure” for the content, but its an argument that falls flat. If you don’t own the material, you don’t have a right to make money off it
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by Ellen Seidler | Copyright, Piracy, Tech
Last week YouTube made official what had long been rumored and announced a new slate of paid channels.
Starting today, we’re launching a pilot program for a small group of partners that will offer paid channels on YouTube with subscription fees starting at $0.99 per month. Every channel has a 14-day free trial, and many offer discounted yearly rates. For example, Sesame Street will be offering full episodes on their paid channel when it launches. And UFC fans can see classic fights, like a full version of their first event from UFC’s new channel. You might run into more of these channels across YouTube, or look here for a list of pilot channels. Once you subscribe from a computer, you’ll be able to watch paid channels on your computer, phone, tablet and TV, and soon you’ll be able to subscribe to them from more devices.
While this announcement is potentially good news in that it offers content creators large and small new ways to monetize their work, unless YouTube purges pirates from the site, it’s is a business model that remains tainted.
I’ve written previously about the various ways YouTube enables (and reaps profit) from movie piracy. With the latest announcement paid YouTube channels, I thought it worth looking at yet another example of their dirty laundry. This time it’s an Argentina-based website that uses popular movie trailers on YouTube to attract customers to its online store selling bootleg DVDs and video games.
I came across the illegal site when I viewed a trailer the French indie film “Tomboy” uploaded to YouTube. The user had uploaded a number of trailers to his YouTube channel and in the description for each, included a link to his illegal website. To add insult to injury, the trailers featured not only a link to the bootleg site but included a its own splashy animated logo edited in.
Here’s the description translated from Spanish:
www.xtopsite.com where you can find the last extrenos on DVD
new http://www.xtopsite.com
Pre release movies 20000 retro releases and unpublished
4000 concerts in Argentina and worldwide with the best sound
1500 Complete TV series, so you can finish watching it so steep that you got
20000 MP3 bands and musicians to upload your best technology
20000 programs to make the impossible possible
20000 playstation xbox360 wii chipiadas for your consoles to play online against worldwide
shipments at home just as fast in 24 hours on market
The best prices, the best quality, over 15 years as leaders in the market $ 3. – C / u cd $ 5 – c / u dvd
Promo: if pedis 100 units or more makes you a discount of% 25. –
orders effected only by form: http://www.xtopsite.com
When I navigated to the website, I found this, a virtual storefront that looks legit enough, but isn’t. How could I tell? Well, the first clue was the DVD for the film “42” which just recently appeared in theaters. “42” is not scheduled to be released on DVD until this summer, August 2013.
The movie “42” will be released on DVD and Blu-ray in August of 2013.
This site also sells (bootleg) Xbox games, along with advice for finding cracked serial numbers online.
Here’s the specific advice (translated from Spanish):
Clearly these pirates are using YouTube as a means to advertise and drive traffic to their illicit business. Since it’s based in Argentina, they can operate openly with little fear of closure since the country is notoriously lax on piracy. An article published on smartplanet.com sums it up pretty well:
Argentine websites and physical markets questioned for distributing pirated and counterfeit material shows how relaxed local attitudes are toward intellectual property. Students regularly buy photocopies of entire college texts rather than pay for the book, while several Buenos Aires parks fill on weekends with vendors openly selling pirated computer software.
Part of Argentina’s fertile culture of piracy is inspired by a belief that intellectual property rights can be sacrificed in the name of helping the poor and forgotten against large corporations; part is caused by Argentina’s lax enforcement of intellectual property laws; and the rest comes from the country’s isolating economic policies, where import restrictions and high import taxes make buying genuine foreign goods prohibitively expensive.
The Office of the U.S. Trade Representative has placed Argentina on its “watch list” citing copyright infringement as one concern, “However, serious problems persist, including widespread availability of pirated and counterfeit goods, an inefficient judicial system, and a failure to adjudicate civil and criminal cases and impose deterrent level sentences…overall levels of copyright piracy continue to present a problem, as reflected, for example, in a reported growth in piracy over the Internet.”
So while the United States is concerned that Argentinian authorities inaction against IP theft and piracy, a U.S. based company like YouTube help them facilitate it without a problem? As a business that abides by U.S. law, should YouTube/Google do more to prevent an illegal enterprise from using their website to promote/distribute illegal goods?
According to YouTube’s own “Terms of Service” (and I assume U.S. law) the company bears no responsibility in these situations:
The Service may contain links to third party websites that are not owned or controlled by YouTube. YouTube has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, YouTube will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly relieve YouTube from any and all liability arising from your use of any third-party website.
In addition to their “Terms of Service” YouTube offers users a bit more guidance via their “Community Guidelines,” but here, the only reference discouraging “illegal” activities are “Dangerous Illegal Acts” like bomb making and sniper attacks. Nothing about operating illegal bootleg/counterfeiting operations.
Is the situation any different with YouTube’s parent company Google? Not really since Google’s terms of service follows the same murky (though apparently legal) path.
If the bootleg site is in Iran, Cuba or the Sudan, it seems Google may be forced to act, otherwise, despite lip-service that frowns on “dangerous and illegal” activities, linking to illegal businesses is A-OK. If I’m interpreting the verbiage correctly, bootlegging DVDs is not dangerous per se (which obviously it’s not), then the illegal part is moot. Though Google terms state that users aren’t allowed to create websites, ” that have the primary purpose of redirecting visitors, acting as a bridge page, or driving traffic to another website” it appears that the company does little to stop this activity, at least on YouTube.
Commercial Activity
You may use Google Sites to create websites for your business or to promote your products or services, unless you are in Cuba, Iran, or Sudan. There are some commercial uses we don’t allow. We don’t allow websites that have the primary purpose of redirecting visitors, acting as a bridge page, or driving traffic to another website. We also don’t allow websites that have the primary purpose of profiting from displaying ads from any publisher network, such as sites created with little or no unique content and exist only to display ads.
Copyright
It is our policy to respond to clear notices of alleged copyright infringement. More information about our copyright procedures can be found on this page: http://www.google.com/sites_dmca.html
Unlawful Use of Service
Our products and services should not be used for unlawful purposes or for promotion of dangerous and illegal activities [emphasis added]. Your account may be terminated and you may be reported to the appropriate authorities.
The U.S. Customs and Immigration Enforcement (I.C.E.) has been seizing web domains as part of an ongoing effort to battle counterfeiting across the globe. Perhaps its time to examine the mechanisms by which U.S. companies indirectly aid such criminal enterprises as well? Why not engage some of our own companies in a discussions aimed at reducing their role in enabling these criminal activities?
On another front, why not enlist the YouTube community in helping to report these questionable sites? YouTube has a system whereby users can flag material deemed to be in violation of “rules:”
Users report content that may violate YouTube’s rules by flagging it. YouTube’s rules are outlined in ourCommunity Guidelines. YouTube staff review flagged videos 24 hours a day, seven days a week. When a video is reviewed and determined to violate our Community Guidelines we remove it.
YouTube seems to have no problem allowing its users to flag innocuous kissing scenes from lesbian/gay tv shows and movies, why not give its “community” an easy way to flag material actually links to illegal content–content that does harm? According to YouTube’s community guidelines:
We Enforce These Guidelines
Okay, this one is more about us than you. YouTube staff review flagged videos 24 hours a day, seven days a week to determine whether they violate our Community Guidelines. When they do, we remove them. Sometimes a video doesn’t violate our Community Guidelines, but may not be appropriate for everyone. These videos may be age-restricted. Accounts are penalized for Community Guidelines violations and serious or repeated violations can lead to account termination. If your account is terminated, you won’t be allowed to create any new accounts. For more information about how the Community Guidelines are enforced and the consequences of violating them, please visit the Help Center.
At present, it’s pretty much impossible notify YouTube about the illegal linking scenario I’ve described in this post because 1) it’s not a “dangerous and illegal act” 2) it doesn’t infringe “my rights.” When I tried to flag the trailer and alert YouTube that this YouTube channel linked to a counterfeit site I was met with a form that required information (like an actual hyperlink to the law being infringed) and legal standing that I don’t posses.
Clearly YouTube doesn’t want to be deluged with false claims, but making an option available for users to report a legal issue that does not involve one’s own trademark or copyright would help.
There may be other technological ways to vet questionable links. Google seems to achieve wonders with its search algorithms. Why not utilize technology to ferret out links to dubious websites posted on their pages? Google regularly labels sites as “compromised” on search results. Of course, when it comes to others attempting to crackdown on criminal websites listed via their search engine Google likens this to an attack on “free speech.”
For now, it seems Google has no legal obligation to worry about its role in facilitating illegal activity like bootleg DVD sales. After all, sharing links to infringing streams and downloads is allowed to fly under the radar, so is it any surprise other savvy pirates link to their sites selling bootlegged copies? Moving forward, one can only hope Google representatives begin to acknowledge this problem and begin to develop efficient and thoughtful ways to deal with it. If Google wants YouTube channels to become a legitimate and profitable means of distribution for content creators, why not get rid of those YouTube users whose activities undermine the livelihoods of these same creators YouTube is attempting to woo?
by Ellen Seidler | Copyright
This past Monday the Wall Street Journal published a thought-provoking piece “As Pirates Run Rampant, TV Studios Dial Up Pursuit.” Written by Christopher Stewart, the article explored how the television industry, studios, and film distributors are protecting their businesses from the ravages of online piracy. Kathy Wolfe, founder of Wolfe Video, the largest distributor of independent LGBT films in the world, spoke about the challenge of staying in business amid a sea of piracy. She told the Wall Street Journal that she estimates online piracy cost her small company more than 3 million dollars in 2012. In order to prevent that figure from growing, Wolfe spends over $30,000 annually (half the company’s profits) to scan the web for infringing content and send takedown notices. When I spoke with her today, she told me that her company could easily be forced out of business were anti-piracy efforts not in place.
In the meantime, according to Wolfe, they are working hard to develop a robust online streaming business. She says that 38% of their income now comes from online streaming and she expects that percentage to grow “radically” every year. “Now with our Wolfe on Demand [website], we have a formula that is accessible and affordable,” says Wolfe. She adds that by establishing their own online portal, and not depending on exclusively on other sites (iTunes, Amazon, Hulu, etc), Wolfe can direct a bigger percentage of profits back to the filmmakers.
Despite Wolfe’s success in growing online sales, mitigating piracy has become a fundamental part of protecting their business. “If it weren’t for our anti-piracy efforts, we certainly wouldn’t be functioning at the level we’re functioning at now,” she says.
After all, it’s still difficult to compete with free and the indie filmmakers who partner with Wolfe (including myself) are fortunate that the company bears the brunt of worldwide anti-piracy efforts. But whether it falls to a small independent film distributor such as Wolfe, or an individual filmmaker, the job of removing pirated content from the web is an onerous (and expensive) one.
Where does one begin? Well, in the example I’m about to outline, these are the 12 Steps a filmmaker would follow in order to remove ONE illegal movie from the web:
Step One: Find the film using Google search.
Step Two: Navigate to the YouTube (Google) channel featuring dozens of pirated movies.
Step Three: From there, click the movie you want and go to the description linking to a Blogger (Google) pirate site.
Step Four: Before you leave YouTube (Google), send a DMCA notice either via Content ID system or email.
Step Five: Navigate to the Blogger (Google) website, click the link.
Step Six: Click past pop-up ads to find the embedded film.
Step Seven: Fill out and send a DMCA notice to Blogger (Google) via online web form.
Step Eight: Click the VK icon on the embedded film to navigate to the host site for the infringing file.
Step Nine: Create an account with VK to find that actual URL of the infringing file
(amid more than 100 other uploads by the same pirate).
Step Ten: Fill out and send a DMCA Notice to VK via the online web form (no email address provided).
Step Eleven: Send a DMCA takedown to Google search to have the original link removed from search (YouTube link) in case Vk.com doesn’t respond.
Step Twelve: Get depressed when you have to begin all over a couple of days later when the Blogger pirate makes a new YouTube channel.
Let’s begin our journey with Google search–unquestionably the world’s most popular path to find links to pirated films. In the example below, I searched for the indie French film “Tomboy.” Thanks to Google, I ended up on a YouTube movie channel with links to more than 100 popular indie films. The films aren’t actually uploaded to YouTube. Instead, a it’s dummy file with the movie poster that includes a link to an external website in its description.
I’ve written before about the fact that YouTube is routinely used by pirates as an efficient means attracting traffic to their pirate websites and the example outlined here is no exception. In this case, the YouTube channel links to an external site also hosted by Google’s on its very own Blogger platform: http://cinegay9.blogspot.com.
If you are an indie filmmaker whose film pirated on this site, how can you remove the link? Well your first step would be to send a DMCA takedown notice to YouTube asking that the link to the pirate site be removed using their online form…
You have to fill in each line but, even when you click and send, your takedown request won’t touch the linked-to pirate’s page even though it’s also a Google entity, in this case a Blogspot.com offering an actual embedded stream of your (pirated) film.
If you click the link below the movie description on YouTube you’ll eventually end up at the pirated blog but, before you can glimpse the page, you’ll have to endure, and click past, a pop-up advertisement featuring ads from a panoply of well-known companies including: Dodge, Network Solutions, Reebok, XBox 360, Norton Software, Comcast and Hootsuite.
After you close the pop-up window, you’ll come to the pirate’s website.
Click the thumbnail for the movie, and after you click through another pop-up advertisement featuring ads from Progressive Insurance, Stanford Hospital, Home Depot, U.S. Forest Service, and Toyota….
you’ll eventually arrive at an actual embedded stream of the full movie:
Ok, so if you’re the indie filmmaker who made this film, what do you do next? Well, before yo leave the Blogger site you can notify Google (again) by sending a DMCA takedown notice to Blogger.
However, even if the Blogger page disappears, the online stream doesn’t. So what’s the next step? Well, at first glance the video is clearly hosted on a Russian site, vk.com (a site like Facebook). However, if you click the VK logo, you don’t end up at actual film, but rather a page full of uploaded (pirated) movies on this pirate’s Vk.com account (seen below).
Click on the film and nothing happens so uncovering the actual stream file and URL seems hopeless. But, if you’re really persistent, there is a way. To do so you must create an account at VK.com (and give up your cell phone number). It’s a major pain involving a text message with a confirmation code, etc.
Once you have an account and log in, you’ll finally be able to navigate to the infringing file and find the actual URL you’ll need to report in your takedown notice.
There’s no guarantee that any of these pages or links will be removed so in order to be totally thorough, you may want to file a DMCA notice to have Google remove the original search result that led you to your pirated film in the first place.
Of course, after all this work, you think you’re finished right? After all, you check back with YouTube and the pirate who started this whole process account has been terminated for “multiple third-party claims of copyright infringement.”
Victory right? Well, not so fast…revisit Google search and you’ll discover that Cinegay9blogspot’s channel has been reincarnated with the user name reotereds. Guess it’s time to start the DMCA takedown process all over again…
YouTube pirate wastes no time in generating a new channel to attract traffic to his blogger-hosted pirate website
Tell me again why artists, photographers, filmmakers and musicians should have to go to these lengths to protect their work from thieves? Wouldn’t our time be better spent creating our art, rather than having to police it so that we can earn a living and afford to spend time to create something new?
by Ellen Seidler | Copyright
YouTube account holders accounts are terminated for repeated violations of copyright policies
I have a question for the folks at YouTube. Usually, if a user receives multiple (3 or more) DMCA takedown notices, the associated account is suspended for repeated violations of their copyright policy.
Two weeks ago I wrote about a YouTube account holder, “MyTrailerIsRich,” who makes money piggy-backing off the work of others–uploading and monetizing movie trailers without permission from the rights holders. Since then, I know for a fact that at least four different distributors have submitted a total of at least 8 takedown notices for trailers uploaded (and monetized) by this user without permission.
Yet, as of this morning, the channel (with its 50 million plus views) is still online and earning income for YouTube and the user. Why? The user hasn’t filed a dispute (counter-notice) to protest the takedowns. Could it be because this particular channel has attracted so many views (and so much income)? Could it be that the intermediary that uploaded and claimed the content (Wizdeo) has a special relationship with YouTube? If you look at YouTube’s criteria for account termination you will note that it’s conveniently vague:
Accounts determined to be repeat infringers may be subject to termination. Users with suspended or terminated accounts are prohibited from creating new accounts or accessing YouTube’s community features.
It’s been my experience with YouTube that some users have had their account terminated for 3 violations. It’s also the figure bandied around in Google’s own product forums.
Yet, to date, MyTrailerIsRich’s has received at least 8 and remains online. I’d love to ask someone at YouTube about this, but unfortunately, they won’t respond to email queries. My guess, it’s all about the money. Perhaps YouTube should update its terms to clarify matters and say:
Accounts determined to be repeat infringers may be subject to termination (dependent on how much income they generate for us).
The YouTube channel for “MyTrailerIsRich” remains online despite multiple (at least 8) takedown notices.
by Ellen Seidler | Copyright
Need more evidence that Google’s YouTube earns income from pirates who upload (and monetize) films for which they don’t own the rights? Well, here’s another example I found today (1/26/13). This time it’s a YouTube user with the moniker “iWatchEpicMovies.” The film in question (one of many the uploaded claimed by the user) is a 1998 Swedish film, released in the United States under the title “Show Me Love.” The original title in Swedish was “Fucking Amal.”
The film was uploaded to YouTube on January 23rd and claimed by the uploader, who asserted “ownership in the following countries: Worldwide.” When you view the film on YouTube it’s monetized with advertising, meaning the uploader and YouTube earn money very view. Not only is the pirated film monetized, but ironically, one of the ads superimposed over the screen is a Netflix ad. So, in this case, Netflix is also benefiting from the presence of this pirated film on YouTube. BTW, Netflix is no stranger to allowing its advertising to be promoted aside pirated movies. I wrote about another recent example of this here.
- Pirated film Monetized on YouTube by Google featuring Netflix Ads
Google/YouTube will, as always, claim that it’s the rights holder’s job to police YouTube and to request that infringing content be removed. Of course, in the interim, Google’s happy to make money and Netflix is happy to attract new customers (and make money).
In another ironic twist to this pirated upload, the YouTube user posts this disclaimer “I do not claim copyrights. For entertainment purposes only.” Perhaps “iWatchEpicMovies” should rewrite it to clarify, and say: “I do not claim copyrights, but I assert ownership (worldwide) for the purpose of making money off something I don’t own.”
Last week Nintendo began notifying YouTube users that had uploaded content containing footage from its games that it would be claiming the videos for purposes of monetization. It’s fairly routine on YouTube for content owners like musicians and movie companies to claim and monetize user uploaded content which they own the rights to.
