4 ms·

IANAL, But doesn't monetizing the video and giving the proceeds to the claimant of the original copyright (nintendo) consitute infringement against the derivati

IANAL, But doesn't monetizing the video and giving the proceeds to the claimant of the original copyright (nintendo) consitute infringement against the derivatives work author(Jim), assuming that the derivative work falls under fair use? Shouldn't Jim be able to sue both nintendo and youtube?

pavel_lishin 7y ago
> Shouldn't Jim be able to sue both nintendo and youtube? Sure. And if he had infinite time and money, he might even win.
pjc50 7y ago
This falls apart as soon as it encounters the Terms of Service. https://www.youtube.com/static?gl=GB&template=terms https://www.youtube.com/static?gl=GB&template=terms > the Content you submit must not include third-party intellectual property (such as copyrighted material) unless you have permission from that party or are otherwise legally entitled to do so. You are legally responsible for the Content you submit to the Service > By providing Content to the Service, you grant to YouTube a worldwide, non-exclusive, royalty-free, transferable, sublicensable licence to use that Content (including to reproduce, distribute, modify, display and perform it) for the purpose of operating, promoting, and improving the Service. > You also grant each other user of the Service a worldwide, non-exclusive, royalty-free licence to access your Content through the Service, and to use that Content (including to reproduce, distribute, modify, display, and perform it) only as enabled by a feature of the Service. Once you upload something of yours to Youtube, your only recourse is to take it down again.
- delfinom 7y ago
  A company claiming copyright over fair use would be a violation of the derivatives legal rights and could easily be a lawsuit, YouTube would not be a party to it and it requires the content owner to have the money for a multi-year court case.
  - throwawayffffas 7y ago
    Given the terms pcj50 quotes, I wouldn't think you have any grounds to sue anyone. To me it reads you give them a license to do whatever they please with the uploaded content, that would include monetizing the content and giving the proceeds to someone else.
    - zamalek 7y ago
      You wouldn't be able to sue YouTube (but you can sue abusers). Abusing DMCA takedowns allows for civil liability (Online Policy Group v. Diebold, Incorporated). The problem is that nobody has bothered suing YouTube DMCA plunderers, because it could get expensive. It wouldn't surprise me if there were a class, so it's surprising that it hasn't happened yet.
      - kej 7y ago
        My understanding is that copyright holders aren't typically filing DMCA complaints against YouTube. They're using YouTube's internal resolution mechanisms which lack the DMCA's disincentives for abuse.
        SAI_Peregrinus 7y ago
        This is correct. Additionally (possibly off-topic) people often misunderstand what sort of abuse the DMCA penalizes. The DMCA prohibits claiming you own the copyright on some work that you don't. It does NOT prohibit claiming that anything infringes that copyright. For example, pretend I'm Nintendo. I own the copyright on Mario. Someone posts a video of Mario. I claim that they infringe my copyright on Mario. Valid claim. No perjury penalty. Someone posts a video of Doom. I claim that they infringe my copyright on Mario. Invalid claim. No perjury penalty! (This is the scenario people think is prohibited.) Someone posts a video of Doom. I claim that they infringe my copyright on Doom. Invalid claim. Perjury penalty! I don't own any copyright to Doom! It's the latter (rarely seen) case that the DMCA prohibits. AFAIK YouTube also prohibits that in their ToS.

pavel_lishin 7y ago

> Shouldn't Jim be able to sue both nintendo and youtube? Sure. And if he had infinite time and money, he might even win.

pjc50 7y ago

This falls apart as soon as it encounters the Terms of Service. https://www.youtube.com/static?gl=GB&template=terms https://www.youtube.com/static?gl=GB&template=terms > the Content you submit must not include third-party intellectual property (such as copyrighted material) unless you have permission from that party or are otherwise legally entitled to do so. You are legally responsible for the Content you submit to the Service > By providing Content to the Service, you grant to YouTube a worldwide, non-exclusive, royalty-free, transferable, sublicensable licence to use that Content (including to reproduce, distribute, modify, display and perform it) for the purpose of operating, promoting, and improving the Service. > You also grant each other user of the Service a worldwide, non-exclusive, royalty-free licence to access your Content through the Service, and to use that Content (including to reproduce, distribute, modify, display, and perform it) only as enabled by a feature of the Service. Once you upload something of yours to Youtube, your only recourse is to take it down again.

delfinom 7y ago
A company claiming copyright over fair use would be a violation of the derivatives legal rights and could easily be a lawsuit, YouTube would not be a party to it and it requires the content owner to have the money for a multi-year court case.
- throwawayffffas 7y ago
  Given the terms pcj50 quotes, I wouldn't think you have any grounds to sue anyone. To me it reads you give them a license to do whatever they please with the uploaded content, that would include monetizing the content and giving the proceeds to someone else.
  - zamalek 7y ago
    You wouldn't be able to sue YouTube (but you can sue abusers). Abusing DMCA takedowns allows for civil liability (Online Policy Group v. Diebold, Incorporated). The problem is that nobody has bothered suing YouTube DMCA plunderers, because it could get expensive. It wouldn't surprise me if there were a class, so it's surprising that it hasn't happened yet.
    - kej 7y ago
      My understanding is that copyright holders aren't typically filing DMCA complaints against YouTube. They're using YouTube's internal resolution mechanisms which lack the DMCA's disincentives for abuse.
      - SAI_Peregrinus 7y ago
        This is correct. Additionally (possibly off-topic) people often misunderstand what sort of abuse the DMCA penalizes. The DMCA prohibits claiming you own the copyright on some work that you don't. It does NOT prohibit claiming that anything infringes that copyright. For example, pretend I'm Nintendo. I own the copyright on Mario. Someone posts a video of Mario. I claim that they infringe my copyright on Mario. Valid claim. No perjury penalty. Someone posts a video of Doom. I claim that they infringe my copyright on Mario. Invalid claim. No perjury penalty! (This is the scenario people think is prohibited.) Someone posts a video of Doom. I claim that they infringe my copyright on Doom. Invalid claim. Perjury penalty! I don't own any copyright to Doom! It's the latter (rarely seen) case that the DMCA prohibits. AFAIK YouTube also prohibits that in their ToS.