Court Finds That Copyright Holders Are Required To "Consider Fair Use" Before Filing DMCA Takedowns

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austin_walker

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Edited By austin_walker
Somehow this is the only image on our Copyright Infringement page. I want so, so many more.
Somehow this is the only image on our Copyright Infringement page. I want so, so many more.

In a ruling made today, the United States Court of Appeals for the Ninth Circuit determined that before a copyright holder files a DMCA takedown notice, they must first "consider" whether the content being targeted is using the copyrighted material in fair use. If the copyright holder fails to do this, the individual who receives the DMCA takedown can take the accusing entity to court for nominal damages--even if the individual can't show that the takedown has cost them income.

What does this mean, exactly? Well, understanding the particular case in question helps to illustrate the ruling. In 2007, Stephanie Lenz made a 29-second video of her children dancing along to the Prince song "Let's Go Crazy." Universal Music Group sent YouTube a DMCA takedown notice, which stated that the video infringed on UMG's copyright because neither Lenz nor YouTube "were ever granted license to reproduce, distribute, publicly perform, or otherwise exploit" the song. But the takedown did not say anything about fair use, and this is the key to Lenz's case: She (and her lawyers from the Electronic Frontier Foundation) successfully argued that UMG needed to explain in the takedown why her video wasn't fair usage of the Prince song. UMG argues that they did make that consideration (the company claims that it examined everything from the volume of the Prince song to the quality of shot composition before making the DMCA claim), but this wasn't reflected in the actual takedown. Because of this, the takedown was not made in good faith, and therefore Lenz is within her rights to take UMG to court.

It's easy to see why people who make all sorts of video content might see this and hope that it will mean a little safety from flippant DMCA claims. The old system was nearly automatic: Detect copyrighted material, push a button and submit a takedown. Because copyright holders will now need to show their work and prove that they considered the possibility that a video might have incorporated the copyrighted material in fair use, the rate of DMCA takedowns could slow down. But there are two big reasons that I'm skeptical that this will really be a game changer for online content creators.

First: While DMCA claims now require that takedowns include "consideration of fair use," there's still a chance that YouTube, Twitch, and other video services won't require copyright holders to make that consideration when they send in a notice. These services could decide to self-police their platforms in an effort to maintain good relationships with media companies. This already happens: You can see it any time that Twitch posts a message saying that they will ban any streamer who breaks street date on a major game. Decisions like that are made in anticipation of DMCA takedowns, but are done voluntarily. Sure, there's a chance that the extra requirements on copyright claims will embolden video services and encourage them protect their content creators... but given the past, I have my doubts.

Second: The majority opinion for the case notes that YouTube's automated "Content ID" system counts as "considering fair use." Judge Tallman writes that "the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA's requirements to somehow consider fair use." Content ID and similar algorithmic solutions identify copyrighted content and report on particulars of usage: Does a copyrighted song make up the majority of a video's audio track? Is there deviation in video content? I get the impression that systems like Content ID (which rolled out in 2010) were specifically built in response to cases like these, and their complexity increases every year.

While I don't think that this case provides a large degree of safety for live streamers and let's players, I don't want to totally dismiss this ruling entirely. Even if it's a small step towards fairer copyright rules and processes, it's still a step. The court suggests that while the majority of potentially infringing content could be handled by automated systems, copyright holders should also have individuals on staff to review the edge cases. Maybe that would at least protect folks from the most trollish of copyright claims. In any case, there's still a long way to go in the fight for better copyright laws, but this ruling helps to illustrate the sort of imbalances and difficulties that creators face when utilizing copyrighted material in their own content.

And hey if this interests you, I do recommend reading the full ruling. It gets into fascinating stuff, like whether "fair use" of copyrighted works is an exception to intellectual property law or whether it is the law. It's a little dry, but I kind of love this stuff.

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KingSalo

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today is nuts....

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raikoh05

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thanks, feel free to make this stuff less 'dry' and more plain english on the beastcast

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ElmerGlue

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I can see Nintendo being taken to task with these changes. They've been the most aggressive in getting content taken down.

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Monkeyman04

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One too many Suggests in this sentence, "The court suggests suggests..."

I'm not really sure if this ruling will change anything at all.

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Phoenix87

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Good

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WrathOfGod

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I vote we make literally everything created prior to, like, 2010 public domain. Burn it all down!

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mashzapotato

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#8  Edited By mashzapotato

If a court orders an ambiguous consideration of an ambiguous concept can anyone say whether or not anything has changed?

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dsi1

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Anyone else just hear "we considered it, we don't care"?

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Homelessbird

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While I agree with Austin that this won't be a silver bullet, it's definitely a step in the right direction. Any arrow in the quiver of the small content producer over the large is an arrow we should be happy to have. The internet, and content sharing platforms like Youtube, have engendered a new era of access to multimedia expression, and it would be really sad if the big boys were allowed to throw their weight around too much in those places. It's not just the things they actually take down - it's the understanding that your shit can be taken down that produces the chilling effect, and makes you not bother in the first place. It'd be a bummer if that kept happening with the frequency it has been.

So I'm in favor of these minor protections all the way. I mean, how can anyone argue in good faith that a 30 second video of dancing children is materially harmful to Prince? There's a definite purpose for DMCA takedowns, but they also need much clearer boundaries, and I hope that the courts continue to draw them.

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Ryuku_Ryosake

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It's good to actually see fair use actually get some legal backing. But the comments that Content ID is good enough to check the fair use or not box is worrying. For such a nebulous concept like fair use you really need human eyeballs on a case by case basis.

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joshwent

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#12  Edited By joshwent

Even if it's a small step towards fairer copyright rules and processes, it's still a step.

Except... this really doesn't seem like a step in any direction but sidways, if not backwards.

All this seems to do is vaguely put the onus of claiming that use of a work violates an abstract concept, on the copyright holder themselves.

And it's easy to see anything like that as another win for the little person against the greedy leviathan, but it's also far too easy to forget that copyright protections are important for everyone. Especially the little people.

Say I'm a little known musician, trying to make a living from my art. I sell my songs from my site, or maybe even have a deal with Spotify to try and at least get some pocket change from folks who like my stuff. Then someone on YouTube decides to upload my album, because if we're being honest, that site is still one of the first places people go to to listen to copyrighted music for free. Whereas before it could have been relatively easy for me to at least make them prove they were using it in some acceptable capacity, now I have to do the extra work of quixotically proving that they're violating standards that aren't even illegal.

(And about that specifically, I unfortunately don't have the time tonight to read that full ruling. But it seems pretty clear that if judges have to question whether something is a law or not... it isn't.)

Current copyright law in the US is shameful and broken. It limits creativity rather than protecting and enriching it. And it's one of the clearest and most flagrant cases of cronyism working to allow business interests to dictate policy. But this doesn't do anything to change that, and in fact, may just make it harder for the folks who need them the most, to keep what little protections they have left.

It only makes it harder to achieve positive change, if we're satiated by an imitation of it.

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Onemanarmyy

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I wonder if this will turn into a 'who flinches first?' type of battle.

DMCA receivers threatening with legal action to unlock their content, while the copyright holders decide if it's worth it to keep something blocked or actually taking up the offer of going to court over it.

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ch3burashka

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#14  Edited By ch3burashka

This means nothing for copyright holders. If this was for hosts of content (Youtube, etc) this may have a tiny chance of having an effect, and that's only if those content hosts won't immediately bow to pressure from companies to not piss them off.

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Rayeth

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It really seems unfair that an automated algorithm counts as "considering" fair use. When alogrithms are just programmed to choose arbitrary lengths and amounts of content. It just seems like the court is handing power to some programmer at google. Not really inspiring confidence.

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Homelessbird

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#17  Edited By Homelessbird

@joshwent:I don't mean to harp too much on the example you chose, but in the case of that little known musician, he or she wouldn't have to do very much to prove that someone else making their music available for free presents a material challenge to them selling it for money. Where it becomes a lot less clear is in cases where a piece of content (like said music) isn't used in its entirety, or is used by a third party for a non-commercial purpose.

And while you're right that there are imaginable scenarios where this ruling would cause harm to the little guy, I would argue that they're few and far between. The little known musician is unlikely to have their content stolen or re-purposed exactly because they are little known, and I feel fairly confident in projecting that 19/20 cases that reference this ruling will be individuals or small organizations contesting DMCA takedowns from large corporations. It's absolutely true that in some situations, it may have the opposite effect, but that's unfortunately just the way case law works most of the time.

I mean, it's all speculation either way, but in my opinion, this does more good than harm in the short term. In the long run, well... copyright law is well and truly fucked, and I'm not sure what anybody can do about it, except to make very small changes (like this one), one at a time.

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LawGamer

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Tacking onto the reasons to not get excited:

1. The case is coming out of the 9th Circuit Court of Appeals, which has a reputation for having a lot of it's cases reversed.** It also has a reputation of being the most liberal Circuit Court of Appeals, which isn't great when the current Supreme Court is viewed as being pretty conservative.^^

** The reversal rate as a total percentage of it's cases is actually really small, as it is with all Circuit Courts, about 0.2% for the 9th Circuit. However, assuming that SCOTUS agrees to hear a case out of the 9th Circuit, it tends to get reversed something on the order of 60% of the time. Another 20% are vacated entirely (if a case gets reversed, it's usually only part of the opinion. When a case gets vacated, it means SCOTUS thought the entire decision was bad). For those counting at home, that means there's about an 80% chance SCOTUS would throw this one back if they agreed to hear it on appeal.

^^ Obviously, whether a court is "liberal" or "conservative" is a pretty subjective matter. However, the 9th Circuit has a large number of it's judges (~70%) appointed when Democrats held the Presidency. It's also a gigantic appeals court, so there are a lot more judges on it than other Circuits Courts. How much of an effect this has on a case dealing with the DMCA is debatable. People have opinions certainly, but its not the kind of emotionally charged stuff like abortion or same-sex marriage.

2. That 9th Circuit is one of 11 and only affects the part of the country it has jurisdiction over. The law remains unsettled in the rest of the country. Although this issue is likely to come up again in another part of the country, the fact that the 9th Circuit has the reputation for being a bit of an outlier makes it pretty likely there would at some point be a split among the circuits, resulting in different rules in different parts of the country. Given that copyright stuff really does kind of need to be the same everywhere, that makes the issue ripe for SCOTUS intervention at some point in the future.

Now, if the 7th Circuit were to weigh in the same way, that might be a step in the right direction. SCOTUS tends to love them, and the DMCA is exactly the type of wonky-law-and-economics-maximum-efficiency-of-the-market stuff the 7th Circuit loves to discuss (usually at great length, whether you want them to or not).

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Seeric

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It's not much of a victory in and of itself, but the simple act of siding with fair use instead of doubling up on enforcing the rights and often-ridiculous claims of copyright holders is something which has happened so rarely in the past that it could be taken as a sign that laws are finally, finally starting to swing towards taking the digital age into account rather than simply trying to work around it and/or suppress it.

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clush

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The internet, and content sharing platforms like Youtube, have engendered a new era of access to multimedia expression, and it would be really sad if the big boys were allowed to throw their weight around too much in those places.

You have to realize that Youtube itself is one of the big boys.

It's good to actually see fair use actually get some legal backing. But the comments that Content ID is good enough to check the fair use or not box is worrying. For such a nebulous concept like fair use you really need human eyeballs on a case by case basis.

I disagree. A well defined metric would help fair use in a big way. If left to interpretation, the side with the best lawyers will always be able to make a better case. Not to get political or anything, but look for instance at the 'war on terror'. It's impossible to define the enemy and the win conditions, and therefore it's become this umbrella justification for pretty much everything 'they' want.

Clear definitions, even to the point where a computer algorithm can do the checks, are almost always preferable over these nebulous concepts. If something means too many things it'll stop meaning anything... or it'll mean whatever they want it to mean.

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joshwent

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And while you're right that there are imaginable scenarios where this ruling would cause harm to the little guy, I would argue that they're few and far between. The little known musician is unlikely to have their content stolen or re-purposed exactly because they are little known, and I feel fairly confident in projecting that 19/20 cases that reference this ruling will be individuals or small organizations contesting DMCA takedowns from large corporations.

I absolutely agree. But considering that, you still have to ask yourself, "Who faces more harm?".

Even if the "large corporations" have to prove something isn't fair use before issuing a take-down notice 99% of the time vs. a small person/label/dev/company/etc.'s 1%, that use probably doesn't significantly effect the potential profits from the work overall. For the small artist, the harm is far greater, precisely because their profits are far smaller. And then giving them the same work of creating a convincing burden of proof that a company could easily hire someone or, clearly, create an algorithm to do, is just vastly imbalanced.

The DMCA is the problem. The vagueness of Fair Use is the problem. And all I'm saying is that we should be weary of applauding a decision that doesn't change either of those obstacles in any way.

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TheHT

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Well, it's something I guess.

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austin_walker

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@lawgamer: Thanks for the additional details!

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Homelessbird

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@clush: Youtube is definitely one of the big boys, and it's almost certain that when there's a question of who to side with, Youtube will side with them. I'm just saying that their platform is a place that has exploded with creativity where there was none before, and it would be too bad if they, or anyone else, gets in the way of that.

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FalcomAdol

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Sadly, whatever the law, not every streamer has the EFF to back their lawsuit. Getting your day in court in the US costs money unless you're the defendant and the state is bringing a criminal case. The legal system in the U.S., by default favors those who can afford to defend "their rights" in court.

The next time something like this goes to court I bet it's a class action for everyone who got a takedown on Youtube.

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JohnTunoku

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#26  Edited By JohnTunoku

If nothing else it's a step in the right direction. Right now you don't even need to properly own an IP or any infringing music to claim a video and there are zero repercussions if you are caught gaming the system.

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Oni

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#27  Edited By Oni

Yeah, I don't see this as having any major impact, unfortunately. The system already benefits the big companies and will continue to do so because don't no one wanna piss off a major company to stand up for the little guys and girls.

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Homelessbird

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@joshwent: Well, I can definitely get with that point of view - I suppose I just try to focus on the good over the bad, but I'm definitely not trying to cheerlead for the 9th circuit court of appeals. You're right that when the unlikely happens, and the little guy finds themselves on the wrong end of the issue, the harm will be much greater, and that's sad.

And I'm 100% on board with you on the DMCA and Fair Use. They are a Problem with a capital P.

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DaveKap

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Patents, Copyrights, and Trademarks all need a complete legal overhaul. Burn it down... burn it all down. Tiny steps like this are, unfortunately, tiny buzzing gnats in the face of a giant, monolithic monsters of big business and greedy capitalism. The Intellectual Property laws of today are the current generation's version of this popular chart:

No Caption Provided

See that Christian Dark Ages part? That's where we are so long as our stupid IP laws stay in place.

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larmer

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#30  Edited By larmer

@johntunoku: Almost no one who owns IP makes DMCA takedown claims. All the big Intellectual Property owning companies hire a third party to do the copyright trolling for them. Copyright trolling a big business in itself. If law were made to ensure you had to own IP to make a DMCA claim, the entire industry of middlemen that do the dirty work would evaporate. Can't let that happen! Capitalism!

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Sergio

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While this is a good thing for fair use in general, this really doesn't benefit live streamers and let's players as some make it out. There is a huge difference between a 29-second clip of a kids dancing to music in the background and hours of video game content, regardless of whatever production value is added to it.

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bananaz

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I think it's ludicrous that an algorithm can be considered consideration of anything.

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cornbredx

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Considering Content ID acceptable is not really a step in any direction so I see nothing changing. Content ID mostly gives false positives and fails to consider "fair use" itself so it doesn't really matter anyway.

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Lurkero

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I think it is okay to use an algorithm to DETECT potential copyright violations, but before any takedowns an actual person should have to verify that the potential violation is an ACTUAL violation. That is the biggest part about the current laws that bother me. Copyright holders have every right to protect their copyright, but they should have to prove violation according to a clear set of rules before a drawn-out trial is had.

I also think it is great that Prince has a page on a video game website. Only on Giantbomb.com can that happen.

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l4wd0g

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we are one step closer to a court fight where a judge will have to set a precedent on what is acceptable "fair use."

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Busto1299

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#36  Edited By Busto1299

I know many people would say that this is insignificant, but any small step can start something bigger. After all, in order to reform some Copyright and IP laws, we gotta start somewhere. Rome wasn't built in a day. ( Hey guys, look at me! I'm smart cuz I can quote stuff... not really)

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exogen

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if this continues to happen, it'd be great.

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soimadeanaccount

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DMCA is a shitfest. Just fucking burn it.

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vhold

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#39  Edited By vhold
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soimadeanaccount

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A harbor for something that was not needed to begin with.

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Branthog

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I've dealt with significant copyright issues for almost twenty years now and i'm still baffled as to why some third party can claim a video on youtube, because the video game the person in the video is playing has music playing in it.

Sorry, but I presume that the publisher of the game already paid for licensing of the music and it isn't being used in a different manner. It is alongside the product it was intended for.

Of course, none of this will change Youtube's backwards system of automation and stripped-of-human-contact policies where the DMCA is a "last resort" after-thought to their internal system.

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Wazanator

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"Somehow this is the only image on our Copyright Infringement page. I want so, so many more."

Should just have a link that points to the Garry's Mod workshop.

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Ryuku_Ryosake

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@clush said:

I disagree. A well defined metric would help fair use in a big way. If left to interpretation, the side with the best lawyers will always be able to make a better case. Not to get political or anything, but look for instance at the 'war on terror'. It's impossible to define the enemy and the win conditions, and therefore it's become this umbrella justification for pretty much everything 'they' want.

Clear definitions, even to the point where a computer algorithm can do the checks, are almost always preferable over these nebulous concepts. If something means too many things it'll stop meaning anything... or it'll mean whatever they want it to mean.

It would be nice if you could give a nice binary boundary to let everyone clearly know the rules here. The problem it is not just about ip law but is also about censorship. Fair use is meant to protect artistic expression. The problem with art is it is all about no boundaries and pushing against any boundary you try to set on it.

Say for example, Andy Warhol was an artist in 2015. Any computer algorithm would DMCA the hell out of his work. We as a society already had to debate over if his art was truly art in the first place. In the current environment Content ID would just tear his art down the instant it was up and we would never get to have that conversation.

Since fair use is technically a censorship law, it falls on same legal issue as obscenity law and the best you can do legally is "I'll know it when I see it". There a reason google has to have actual humans flag all the obscene stuff because it is not something an algorithm can do adequately enough to comply to the law. The case is the same here except there is money involve.

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mitchuation

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Tlrd; it will have minimal impact where YouTube and twitch are concerned because of pre existing loop holes in the system such as content ID

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MrPlatitude

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So this is probably a good thing, right?

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dudeglove

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But Austin, what will all the patent trolls do? Practice actual law or get a real job?

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Sergio

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But Austin, what will all the patent trolls do? Practice actual law or get a real job?

patent != copyright

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Jensonb

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Did anyone see the teaser image first and get excited about the possibility of news on Gyakuten Saiban/Ace Attorney 5 and then realise it was just the usual clever way of illustrating legal proceedings on games sites?

Uh...Cos...I sure didn't >_> <_<

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SilverhandX

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It's a move in the right direction I guess, but saying that Content ID considers fair use before filing a claim is just bullshit.

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selbie

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#50  Edited By selbie

Automated censorship is wrong. They need a better system for copyright enforcement such as maybe filtering sponsored users etc.

This edit will also create new pages on Giant Bomb for:

Beware, you are proposing to add brand new pages to the wiki along with your edits. Make sure this is what you intended. This will likely increase the time it takes for your changes to go live.

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