Copyright enforcement on YouTube is a growing source of frustration,  particularly the overbroad takedown efforts.

Many channel operators and users have complained about apparent abuse, but most don’t go any further than that. 

John MacKay, owner of the popular channel  “Boxing Now” is an exception. On his channel, MacKay releases videos with post-fight commentary of popular fights. With hundreds of thousands of subscribers, he’s amassed a sizeable audience over the years.

The channel also comments on matches from the Ultimate Fighting Championship (UFC). Since MacKay hasn’t cleared the rights to these broadcasts, he doesn’t use video footage from these fights. Instead, he shows a few still images, commenting on these. 

Nonetheless, the UFC is not happy with his coverage, as the organization has sent five takedown notices targeting Boxing Now’s videos. These are not automated Content-ID flags, but actual takedown notices, which resulted in the videos being removed from YouTube. 

MacKay believes that his work is a clear case of fair use so in response sent counternotices for each takedown. The UFC hasn’t responded to any of these, which meant that YouTube restored the videos. However, at that point, most harm was already done. 

“My videos are most often viewed in the days immediately after a fight, and when UFC has them taken down for a few days with these unfair copyright claims, I lose a lot of viewers and a significant amount of money,” MacKay says, commenting on the issue.

Frustrated by the continued takedowns, MacKay decided to take a stand. He reached out to the Electronic Frontier Foundation (EFF) to help him address the matter. The EFF was happy to oblige and this week attorney Alex Moss sent a letter to the UFC, demanding that it stops sending unwarranted notices.

In the letter, Moss goes over the four factors of fair use, concluding that all weigh in the channel operator’s favor.  For example, the videos are transformative, only use a few frames of the copyrighted content, and do not compete with the original broadcast.

“Mr. MacKay’s post-fight commentary could not and did not affect the market for a live broadcast or recording of the entire fight. If anything, Mr. MacKay’s use of still images for commentary purposes would likely increase demand for the original,” Moss writes.

The EFF’s attorney points out that the UFC has an obligation to consider fair use before sending a takedown request, as was determined in the Lenz vs. Universal case. The repeated notices targeting Boxing Now’s videos indicate that the UFC has failed to meet this obligation, which harms the channel’s business. 

When the videos are taken down shortly after being posted, MacKay is missing a lot of views and therefore ad revenue. Added to that, the takedown notices also put his channel at risk, as YouTube may terminate accounts after repeat infringements. 

What the UFC’s precise motivation is for the requests is unknown. The EFF’s attorney points out, however, that the UFC also has its own post commentary videos on YouTube and that it’s reducing the competition with its takedown notices.

“We note that UFC also produces YouTube videos containing post-fight commentary, and that Mr. McKay’s videos and UFC’s videos may compete for viewership and advertising revenue. This further suggests that UFC’s takedowns of Mr. McKay’s videos were done in bad faith,” Moss writes.

The channel operator, therefore, demands that the UFC stops issuing unwarranted takedown requests. The EFF requests that the organization confirms this intention before the end of the month. 

“Accordingly, we demand that you cease sending takedown notices for Mr. McKay’s videos that make fair use of still images from UFC fights. Please confirm your agreement to do so by May 28, 2019, ” Moss concludes.

It’s not clear whether the EFF and MacKay plan any legal action should the UFC fail to meet their demand. However, as highlighted a few days ago, the likelihood of a lawsuit over unwarranted takedown notices becomes ever more likely, whether that happens in this case or not.

Speaking with TorrentFreak, Moss says she can’t go into detail about any potential follow-up steps. The EFF’s attorney hopes that the letter has some effect and that the UFC stops sending wrongful takedown notices. 

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A copy of EFF’s letter, sent to UFC on behalf of Boxing Now’s John MacKay, is available here (pdf).

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The Canadian Government is currently exploring if and how the current Copyright Act should be amended to better fit the present landscape.

To this end, Canada’s Heritage Committee organized several hearings on remuneration models for artists, where it received input from various stakeholders.

The outcome provides input for the Committee on Industry, Science and Technology’s broader review, which will determine the future course for Canada’s copyright policy.  The Heritage Committee hopes that its findings will be included. 

The report, titled “Shifting Paradigms,” leads to a set of 22 recommendations. These cover a variety of issues ranging from addressing the value gap and holding ISPs accountable, through limiting fair dealing, to extending the copyright term.

These themes are in large part meant to further support creators and copyright holders. Much like the EU’s copyright reform, there is a lot of emphasis on the so-called value gap, i.e the notion that artists don’t currently receive fair compensation for their work.

This is also reflected in the report. For example, the payouts at streaming services such as Spotify are often seen as too low. Similarly, services such as YouTube can distribute music and profit from it, while only paying a small fee to copyright holders.

“The inability of policy to evolve with technology has prevented artists from receiving fair market value for their work. According to witnesses, these outdated rules have diverted wealth from creators to large digital intermediaries on which artistic content is consumed,” the committee writes. 

There are also rightsholders who have highlighted the possible aspects of technology on their industries. Content creators have many new distribution platforms, for example, which can bring in extra revenue. However, it’s clear that creators can use some guidance, which results in the first recommendation.

Recommendation 1: That the Government of Canada increase its support for creators and creative industries in adapting to new digital markets.

Online piracy in general is another major theme. Torrent sites and streaming sites remain a significant problem which is hard to address, for example. In addition, ISPs currently have little incentive to help combat piracy. 

One issue that the Government will look into is whether safe harbor exceptions for ISPs should change, to make these companies accountable for pirating users under certain circumstances. 

Recommendation 5: That the Government of Canada review the safe harbor exceptions and laws to ensure that Internet service providers are accountable for their role in the distribution of content.

More generally, the report also suggests that Canada should do more to tackle online piracy overall. One of the options, as suggested during the consultation, is to criminalize online streaming.

Recommendation 6: That the Government of Canada increase its efforts to combat piracy and enforce copyright.

The recommendations are mostly meant to strengthen the position of rightsholders. This also includes an extension of the copyright term from 50 to 70 years after the creator’s death. This follows requests from several copyright groups and is in line with the new trade agreement with the US and Mexico.

According to the committee, no witnesses expressed outright opposition to extending of the copyright term, which leads to the following recommendation.

Recommendation 7: That the Government of Canada pursue its commitment to implement the extension of copyright from 50 to 70 years after the author’s death.

Large copyright intermediaries are also presented with a setback, which appears to have been largely initiated by Canadian singer Bryan Adams. During a hearing last year, Adams suggested changing the text of the Copyright Act to made it easier for artists to regain their copyrights.

At the moment, Canadian copyright reverts to a creator’s heirs 25 years after “death.” By changing the word “death” to “assignment”, creators will be able to terminate a copyright assignment while they’re still alive. 

This is helpful to artists who sign away their rights to labels early in their career, which they may regret later. The Heritage Committee sides with Adams and includes the following recommendation.

Recommendation 14: That the Government of Canada amend subsection 14(1) of the Copyright Act so that it reads “from 25 years after assignment.

Following more music- and movie-related recommendations, many of which deal with licensing and remuneration, the committee shifts its focus to the publishing industry. 

Specifically, it addresses a commonly heard complaint from publishers that Canada’s fair dealing exemptions are too broad. Currently, schools are allowed to copy texts for educational use, but this should change, the committee argues.

Recommendation 18: That Government of Canada amend the Act to clarify that fair dealing should not apply to educational institutions when the work is commercially available.

All in all its clear that the recommendations made in the report are favorable to copyright holders, who will welcome it with open arms. However, not everyone is positive.

University of Ottawa professor Michael Geist, who has followed the developments closely, describes the report as the most one-sided Canadian copyright report issued in the past 15 years.

“Representing little more than stenography of lobbying positions from Canadian cultural groups, the report simply adopts as recommendations a wide range of contentious proposals: copyright term extension, restricted fair dealing, increased damages, as well as several new rights and payments,” Geist writes.

“There is no attempt to engage with a broad range of stakeholders, much less grapple with contrary evidence or positions.”

While the Heritage committee did hear several witnesses from people with contrasting views, such as Professor Jeremy de Beer, lawyer Howard Knopf, and author Cory Doctorow, these positions were not reflected in the final report.

The Heritage Committee’s recommendations will now be reviewed by the Standing Committee on Industry, Science and Technology, which is tasked the broader copyright review. That report is expected to come out later this year.

As such, there’s still a long way to go before any of these proposals are acted upon, if that’s the case at all.

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A copy of the House of Commons Standing Committee on Canadian Heritage ‘s “Shifting Paradigms” report is available here (pdf).

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While Kim Dotcom remains embroiled in the largest copyright battle New Zealand has ever seen, the country’s National Party has been facing ‘infringement’ problems of its own.

In 2014 Eminem’s publisher took the National Party to court over alleged copyright infringement of the rapper’s track ‘Lose Yourself’ in an election campaign video.

At the time, the party was led by then Prime Minister of New Zealand John Key, who’s seen as Dotcom’s nemesis. In common with the Megaupload case, the dispute between the National Party and Eminem’s publisher continued to drag on.

The National Party didn’t simply use the track without paying for it. They actually sought professional advice before starting the campaign and licensed a track called Eminem Esque, which is the one they used in the ad.

The party hoped to avoid more expensive licensing fees by using the knock-off song, but the High Court previously ruled that the similarities between Lose Yourself and Eminem Esque are so significant that it breached copyright.

In 2017 the Court ordered the National Party to pay $600,000 for the copyright infringement, an amount neither side was satisfied with. In a subsequent ruling a year later, the Court of Appeal sided with the National Party, reducing the damages to $225,000.

Eminem’s publisher, Eight Mile Style, wasn’t pleased with the outcome and asked the Supreme Court to take it on.

During a hearing two weeks ago the publisher’s lawyer, Gary Williams, told the Court that the damages amount was too low. The rightsholders would have demanded a premium for the song, especially since it was used for political advertising, he argued before the court.

This week the New Zealand Supreme Court decided that it will not allow the appeal, Stuff reports. There is no doubt that the National Party’s use of the track was not permitted, but the Court doesn’t believe an extended legal fight over the damages amount is warranted.

“Given the concurrent findings of fact in the courts below rejecting the contention that the National Party turned a blind eye to the risk of infringement or was reckless, we do not see sufficient prospect of success in an argument that additional damages should have been awarded in this case to justify the grant of leave for a further appeal,” the Court wrote.

This effectively ends the legal battle after five years. The National Party will be happy to move on from this copyright infringement row. For Kim Dotcom, however, the battle continues.

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For those wondering if the music used in the National Party’s ad campaign is indeed similar to the original Eminem track, a copy is available below.

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By filing thousands of lawsuits over the past two years, Strike 3 Holdings swiftly became one of the most active copyright litigants in the U.S.

These cases target people whose Internet connections were allegedly used to download and share copyright infringing content via BitTorrent. In the case of Strike 3, that’s adult content. 

As is common in these lawsuits, Strike 3 only knows the defendant by an IP-address. It then asks the courts to grant a subpoena, allowing it to ask Internet providers for the personal details of the alleged offenders so it can send a settlement request.

There has been some pushback against these requests in certain courts. In the Eastern District of New York, for example, U.S. Magistrate Judge James Orenstein slammed on the brakes recently 

Judge Orenstein denied motions for expedited discovery in thirteen cases. This means that the adult video company can’t get a subpoena to identify the alleged pirates. While we have incidentally seen similar decisions, the motivation, in this case, is worth highlighting.

In his order, the Judge writes that allowing Strike 3 to obtain the identities of the account holders creates a risk.

Specifically, it will put Strike 3 “in a position to effectively coerce the identified subscribers into paying thousands of dollars to settle claims that may or may not have merit, so as to avoid either the cost of litigation or the embarrassment of being sued for using unlawful means to view adult material.”

Strike 3 was willing to give the Court assurances by accepting procedural safeguards on how the subpoenaed information can be used. However, considering the company’s history of avoiding judicial oversight, Judge Orenstein prefers not to issue any subpoenas at all. 

And there are more factors at play here. The order mentions that, if subpoenas are issued, it’s likely that Strike 3 will not use the account holders’ details to litigate these cases in court. That’s also backed up by the information the rightsholder shared with the Court. 

Since 2017, Strike 3 has filed 276 cases in the district, but zero have gone to trial.

Of the 143 cases that were resolved in the district, 49 resulted in a settlement and 94 were voluntarily dismissed. The latter number includes 50 cases where Strike 3 wasn’t confident that the defendant is the infringer. In other words, people who are likely wrongfully accused.

This means that in one-third of the resolved cases, Strike 3 has likely targeted the wrong person. This number is “alarmingly high,” according to the Magistrate Judge. 

“Strike 3 acknowledges that in many cases, the ‘Doe’ it has sued – that is, the subscriber – will prove to be someone other than the person who engaged in the allegedly unlawful conduct the Complaint describes,” the order reads.

“And as it has now revealed in response to my inquiry, the proportion of such unprovable cases is alarmingly high,” Judge Orenstein adds.

This means that Strike 3 is listing many people as Doe defendants, while it knows that quite a few of these are not the actual infringers.

“It is thus apparent that Strike 3 is deliberately asserting claims in a scattershot fashion against a broad array of individuals simply because it is confident that many of them will be liable – even if almost as many of them are not,” the order reads.

This seems to contradict the requirement that copyright holders should have good faith belief in the merit of their claim. While that’s not a violation of the federal rules per se, the Judge sees it as a reason not to issue the subpoenas. 

After all, it is clear that these type of lawsuits are also targeting innocent subscribers.

“While I do not suggest that suing three people because two of them probably committed a provable copyright violation is a technical violation of Rule 11, the certainty that such an approach will impose needless burdens on innocent individuals counsels against a finding of good cause to permit expedited discovery,” the order reads.

Strike 3 also argued that these type of lawsuits are needed to deter others from engaging in copyright infringement. However, the court waved away this argument as well.

Similarly, Judge Orenstein disagrees with Strike 3’s argument that it will be unable to enforce its copyrights if a subpoena is not granted. While this concern is valid, the Judge believes that these types of cases are not the answer, as they are plainly inefficient.

With the latter comment, the order references the work of Idaho Law Professor Annemarie Bridy, who previously published a paper explaining that litigation is not a scalable mechanism to deal with this type of copyright infringement.

In summary, the order delivers a devastating blow to Strike 3 and adds to the recent criticism of these types of lawsuits. If all judges ruled the same way, so-called copyright trolling practice would be finished. However, that’s not the case just yet.

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A copy of the order, which dates back a few weeks and has mostly been flying under the radar, is available here (pdf). 

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