12 ms·

Fake Nintendo lawyer is scaring YouTubers, and its not clear YouTube can stop it

259 points by tombot 2y ago

101008 2y ago
The system is broken and I can't see a way to fix it. Maybe pay to send a takedown notice?
- pavel_lishin 2y ago
  I think a sufficiently large company would still pay - it'd likely be a drop in the bucket compared to hiring a legal team. (A troll like the one in the article? Still, depends on the price.) I think it should switch to the strike system that YouTube, at least, favors: if you issue three fraudulent DMCA notices, you lose the ability to do so again in the future.
  - pablok2 2y ago
    Look at Nintendo, they're creating opportunities even when they try to stop anyone from using their things.
  - rcarmo 2y ago
    ...until you spoof a new e-mail address. That won't scale well.
    - okanat 2y ago
      The DMCA takedown form can also request identity confirmation.
    - pavel_lishin 2y ago
      Require registered law firms to file these. Yes, it'll cost money. But these fraudulent claims cost money, too.
  - IgorPartola 2y ago
    Not a lawyer but isn’t it your rights to protect your copyright? As in, if you file fraudulent notices, YT removes you ability to file more, then you have a legitimate notice to file, now you presumably can sue YT for denying you the right to defend your copyright.
    - WesolyKubeczek 2y ago
      Tough shit, you shouldn’t have sent the three fraudulent ones then. It’s all in the terms of service you have agreed to.
      - onionisafruit 2y ago
        Youtube would probably be violating dmca safe harbor if they required claimants to agree to their terms of service.
        pavel_lishin 2y ago
        Ideally, this would be written into law.
      - IgorPartola 2y ago
        I mean I don’t disagree with you as a person. I am saying that YT might be hesitant to take this stance because the legal system might not share this sentiment. That’s for their lawyers to figure out.
    - pavel_lishin 2y ago
      > isn’t it your rights to protect your copyright? Sure. But you don't have the right to harass people who haven't done so. I'm obviously not a lawyer, but I would imagine that at some point, vexatious litigation protections ought to kick in.
  - dylan604 2y ago
    And who decides a claim was fraudulent? Historically, the fraudulent claims have gotten away with it while the target has at least had to remove the video or at worst had their accounts banned. Yet, nothing happened to the fraudster.
- gorby91 2y ago
  For larger and more litigious companies like Nintendo one would think YouTube wouldn't continue to accept takedown requests from random unverified users
  - LegionMammal978 2y ago
    The problem with that is, the law absolutely demands that the platform comply with any valid takedown notice, so YouTube isn't going to risk having any false negatives (due to internal miscommunications on Nintendo's side, etc.). It's made the responsibility of the uploader to challenge it with a counter-notice, but YouTube makes the process for those far more difficult than what the law says. (YouTube opens itself up to liability if it doesn't put the video back up upon receiving a counter-notice, but it's not like the uploader would be able to sue YouTube for much of anything.)
    - FireBeyond 2y ago
      In this case, the notice wasn't even quoting the right section of law! Is it still considered a valid takedown notice, then?
- ghaff 2y ago
  The problem with any loser-pays or adjacent system is that you inherently favor anyone with deep pockets even more than the system does today.
  - gruez 2y ago
    It's "fake" lawyers, so I doubt they have deep pockets.
    - ghaff 2y ago
      In this particular case but you make it hard for the fake "little people" to pursue claims and you make it hard for the real "little people" to do so as well while not really inconviencing large corporations at all.
- lupusreal 2y ago
  10 year prison sentence for anybody sending fraudulent takedowns, including all lawyers involved.
  - undersuit 2y ago
    How do I prove it's fraudulent? Hire a lawyer?
    - lupusreal 2y ago
      Crimes are prosecuted by the government.
      - undersuit 2y ago
        Never denied this fact.
        lupusreal 2y ago
        To be clear, I am suggesting that fraudulent DMCA claims should be a crime, the government should investigate and prosecute these claims after you report the crime to them.
  - Workaccount2 2y ago
    This is great until a small time artist gets put on trial facing 10 years for art used by megacorp, that is originally theirs but hard to prove it.
    - oneeyedpigeon 2y ago
      In this scenario, has megacorp proved the art is theirs? Because, if so, how, and if not, then surely the original claim isn't unambiguously fraudulent?
- mirekrusin 2y ago
  This thing should be based on some cryptographic proof/claim, it's really not that difficult to setup. More problematic part is to agree that everybody should be using "this" method, not "that" method.
- BlackFly 2y ago
  FRAND registry of copyrighted works. The registry would be provably connected to the creator, the royalty rate would be published ahead of time based on use. Infringement could be seen as accidental at first instance and royalty rates charged after discovery. Copyrighted work not registered? Then you are free to attempt your own single distributor network without legal protection, you can always register it some time after you fail. Charge the creator the royalty rate (or some fraction) they define in taxes to the registry so they don't set ridiculously high rates. Could also charge maintenance fees to automatically lower the rates that are so high that nobody wants to distribute at that price, heck the entire copyright limit could just be replaced with some compounding increase in maintenance fees over time. If the work is really successful they may maintain it longer, but unsuccessful works might just become moneypits very quickly. In this case, the identity of the legal department would be directly connected to the infringing content found in the video which YouTube would have access to to verify. It also wouldn't be a takedown but a royalty demand or they could have registered "Let's play" as not requiring royalties. In principle though, YouTube or even the creator could just do all of this upfront. That's my idea, in the vein of, "We have the technology to do this better."
  - imglorp 2y ago
    DMCA is working exactly as intended: the asymmetry is the house advantage, keeping IP holders in the green and consumers in fear of their power. Any innocent casualties who were benefiting culture and society are acceptable losses. It's not going to change as long as they keep buying politicians.
- helpfulclippy 2y ago
  Fraudulent claims — those in which the filer knew or should have known that they did not hold any copyright being infringed upon nor were they duly authorized to act on behalf of another party whose copyright was being infringed upon — should be treated as such, with exposure to civil and criminal penalties for the individuals involved as well as their employer. Platforms should only accept takedown requests through channels in which a person has credibly identified themselves so that they can be held accountable in this way.
- stackskipton 2y ago
  No, just enforce the DMCA. Youtube has setup this fake DMCA system where they are acting like they enforcing DMCA but not actually. DMCA has protection for creators. You can say "Copyright holder is wrong, put my content back up and I'll see them in court." and "They did this maliciously, I'll see them in court." However, YouTube fake DMCA system is using the provision of "We don't have to host any content we don't want to." so creators are stuck dealing with corporate bureaucracy. Personally, I think YouTube should lose DMCA protection if they want to run this side system.
  - mdasen 2y ago
    Is YouTube playing a bit loose with the DMCA's requirements here? * YouTube has no liability for incorrect take-downs (17 USC § 512 (g) (1)) * That limitation on liability only exists if they restore access to the disabled material within 10-14 business days of receipt of a counter-notice (17 USC § 512 (g) (2) (C)) https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512 YouTube doesn't have to host any content they don't want to. However, it seems likely that a court would say "that doesn't absolve you of complying with the counter notice provisions of the DMCA. You can't just say that you don't want to host any content that goes through a counter notice." There are always limitations on the whole "we don't have to host things we don't want to." I doubt a court would let them use that as an excuse to ignore an explicit mandate of the DMCA, but IANAL. I think the problem is more likely that creators don't want to sue YouTube or have the resources to go up against Google.
    - cmeacham98 2y ago
      > You can't just say that you don't want to host any content that goes through a counter notice. Why not? (at least legally speaking, it'd be a PR disaster I'm sure) YouTube is not obligated to host any videos on their platform and US law allows for businesses to discriminate for almost any reason (except specific protected classes like race or sex).
    - stackskipton 2y ago
      They have to comply with DMCA. However, YouTube commonly strikes stuff without DMCA claims or when they get DMCA claim, they remove the video and will not give video owner a chance to counter claim. They will just say "Yea, we got DMCA but now we are exercising our provision to refuse to host anything we don't want to so video is never going back up."
- JasserInicide 2y ago
  The system is broken and I can't see a way to fix it. With blood. No I'm not being edgy. That is the only way anything is going to change regarding the litany of fucked up corporate practices in our country. Our governments are ineffective at best and are active abettors at worst (read The Chickenshit Club for why they won't ever seriously prosecute execs). Boeing (completely different scenario from the OP but it's recent) has no qualms with killing to maintain the status quo, why should people that want actual change be any different?
ikekkdcjkfke 2y ago
Impersonating with intent to damage is legal?
- emilamlom 2y ago
  When the penalty for frivolous and fake dmca takedowns is basically non-existent, it practically is.
  - vezycash 2y ago
    DMCA works on a "takedown first, ask questions later" basis. Therefore, the solution is to flood YouTube and Google with massive, frivolous DMCA requests targeting the creators of DMCA like Microsoft, Apple, and Disney. They'll solve the problem if it affects them, maybe.
    - emilamlom 2y ago
      DMCA is for user generated content on platforms, so microsoft wouldn't have a lot of surface-area to target. That said, youtube gives preferential treatment to the largest creators and companies. Apple and Disney could easily call up their manager Jerry at Youtube and deal with frivolous takedowns. Small creators often have no direct contact with a human at youtube and have X as their best option for contact. Unless they know the process and have enough money for a lawyer, they're shit out of luck.
      - galleywest200 2y ago
        Large companies just sue people who make false DMCA claims, but small creators cannot afford to do that when large companies make false claims about them. It is a biased system. https://www.techdirt.com/2024/03/29/bungie-youtuber-settle-lawsuit-over-fraudulent-dmca-takedowns-for-youtube-videos/ https://www.techdirt.com/2024/03/29/bungie-youtuber-settle-l...
  - empressplay 2y ago
    Seems to me like it's still fraud, by definition? If you monetize your content you can prove loss, if a competitor is engaging in the fraud even better! Those people being targeted by this troll should band together and sue.
skrebbel 2y ago
When DMCA was proposed, the internet was up in arms predicting exactly this sort of stuff. It was a ridiculous law then and it is now.
- yyyyz 2y ago
  [flagged]
  - gjsman-1000 2y ago
    If you read between the lines in the article, YouTube literally just said 94% of takedowns are real.
  - kbolino 2y ago
    And now the Internet is largely a sterile place where the primary business model is built around advertising, selling "data" to "partners", and exploiting gamblers and addicts, while the companies most "saved" from piracy spend hundreds of millions of dollars every year to make increasingly unwatchable, unlistenable, and/or unplayable crap. I can imagine worse outcomes, but I can certainly imagine better ones too.
  - ndriscoll 2y ago
    The DMCA predates Napster, Gnutella, and Bittorrent. It did nothing to prevent piracy, which exploded in the years after it was passed. Low-enough cost convenient enough subscription services moved people away.
  - thayne 2y ago
    Is this sarcastic? There is still lots of piracy, and streaming services that made it more convenient to consume content, like Netflix and Spotify did far more to reduce piracy than DMCA did. And quite a few people have gone to jail, including for creating ways to circumvent DRM, which wasn't illegal before DMCA.
  - KevinGlass 2y ago
    Don't feed the troll. If you look at this account's comments it's just inflammatory statements.
m3kw9 2y ago
It looks like a hater with a suck channel who has mental issues, but also knows how to use LLMs to generate fake lawyer letters
ternnoburn 2y ago
I worry about let's plays (especially let's plays without commentary). They pretty clearly exist in a "yes, this is copyright infringement but yes, they are generally considered positive for a game" space. The moment some game creator decides to test this will get very interesting. Not good interesting.
- ferbivore 2y ago
  Why do you think a video capture of a computer program would infringe the copyrights of the program's creators?
  - yuliyp 2y ago
    A video game contains text, images, videos, and/or audio which are copyrightable, even if the game mechanics nor the player's decisions themselves are not copyrighted by the creators of the game.
  - seventhtiger 2y ago
    Games are incidentally computer programs, but what's relevant is that they're audiovisual content. Video capture of video would infringe on copyrights which is what video games are.
- do_not_redeem 2y ago
  It's not immediately clear to me that this is true. Video games are designed to be played interactively. Streaming a single playthrough via a non-interactive medium strikes me as transformative. Would you say a screen capture of Microsoft Excel is also copyright infringement? If not, what would you say is the legal basis for treating that differently than a video game?
  - Uehreka 2y ago
    > Video games are designed to be played interactively. Streaming a single playthrough via a non-interactive medium strikes me as transformative. This is one of those areas where principles like “fair use” and “transformative use” don’t really matter, since we’re talking about YouTube de facto policy, not the law. If YouTube decides to honor the claims, then that’s what happens. And YouTube generally errs hard in the direction of rightsholders just to be safe.
probably_wrong 2y ago
It is perfectly clear that YouTube can stop it. As the article points out, we know there are things YouTube can do because those are the very same things The Verge asked about and YouTube refused to answer. The DMCA is broken, yes, but YouTube has made it worse with their kind-of-but-not-actually-DMCA counter-claim process. If they really wanted to solve it, here's an idea: if you get a takedown notice you also get a button that says "I am sure my content does not infringe copyright and I'm willing to go to court for it". YouTube reinstates your content and, if the entity with the claim disagrees, they can take you personally to court. Is this good? No, but that's on the DMCA. Is it better than now, when you have no recourse? I'd say yes.
- ToucanLoucan 2y ago
  They wouldn't even need to go that far. The current way YouTube's system works is so deck-stacked against the creator to a ludicrous degree. Basically any "copyright holder" just has to say "this belongs to me" and YouTube immediately funnels all revenue for the video to that holder, with basically no oversight whatsoever, and as anyone in the space will tell you, a video makes 90% of it's money in the first few days which means these holders can grab the monetization right out from under a creator and steal just, all their fucking money. It's ridiculous. Like all you would have to do to, perhaps not fix, but heavily mitigate this, would be to have YouTube just... hold onto the revenue until the dispute is resolved. It's barely even a change. And most of the time, when creators do counter the claims, they're eventually dropped but again because of how that system works, YouTube has already funneled all their money to the claimant, irrespective of the determined validity of the claim. And it would discourage bullshit claims because even as low-rent a scam as this is, it is some amount of work, and if there's no payout, you necessarily reduce the number of scammers who will attempt it. I don't know if that's a DMCA thing, I admittedly haven't researched it in a long time, but I don't see how that would put YouTube at any kind of liability. Any reader, do feel free to correct me.
  - xvector 2y ago
    Big tech has such a twisted incentive structure for devs that I don't see this getting solved unless it impacts YouTube's bottom line. Execs won't care, and ICs will be actively penalized for fixing this vs working on "business priorities."
nfriedly 2y ago
Nintendo's problem is that this was fairly believable because it lines up pretty closely with their own past behavior. Nintendo regularly drags some of their biggest fans through the dirt with bogus copyright claims and other legal nonsense.
JohnMakin 2y ago
The DMCA has absolutely ruined a decade+ long hobby of mine, which was streaming/content creation. I used to have really fun streams not that long ago that featured a variety of relaxing/cool music set to the backdrop of me messing around on the computer, or in some game. Everyone was fine with this arrangement for a long time. Then, things suddenly changed a few years ago. First your VODs would get yanked and you'd get a warning if you played some extremely popular song, and it was like ok, I understand that. But now it's even spread to in game audio of a game I literally have purchased. That is ridiculous to me. There are games I actually cannot publish playing with full audio settings enabled. That is ridiculous no matter your views on the DMCA, and I'd even go farther and say it's completely ridiculous that I cannot use audio I have purchased or somehow leased on my own content. Why does it have to be this way? Someone can try to convince me this is somehow sane or necessary, but I really doubt it.
- protoster 2y ago
  My guess as to why it's necessary to nuke all potentially copyright audio is that the platform is liable for infringement, and as a result they have a policy to shoot first and ask questions later. This is justified because in overwhelming majority of cases the streamer does not have a license for the audio. In the case that the copyright audio is coming from a game, there is no way currently for the platform to automatically verify that you have a license or not, so once again they shoot first, ask question later. This is unfortunate, but as usual, bad actors ruin the commons for everyone.
  - JohnMakin 2y ago
    > This is justified because in overwhelming majority of cases the streamer does not have a license for the audio I guess my point is that this arrangement was fine for a very, very long time. Why is it suddenly not fine in the last handful of years? Who is standing to gain here? In my view, it hurts the very platforms and industries this is trying to "protect." Twitch/YT/etc. are harmed because the content will be inherently worse, and copyright audio IP is hurt because it will spread to fewer listeners. Not only this, but if it were available to me, I actually would pay to license the audio I use, but there is no mechanism to do that! A similar dumb thing happened a few years ago with the PGA tour - they decided that anyone re-posting PGA clips without their permission, even if it was for commentary/parody/etc., was all of a sudden not permissible. So, all the golf content on IG/TikTok/etc got catastrophically worse overnight, and PGA (which struggles with viewership, especially young viewers) gets less free exposure. There's absolutely no way this was a positive outcome for anyone involved, so why?
redman25 2y ago
I had no idea spoofing email sender was so easy. Does anyone know of a good way to defend against this? I've always taken it for granted that if the sender was a domain that I trusted that I could trust the email itself.
- wongarsu 2y ago
  DKIM and SPF are supposed to prevent email sender spoofing, but that requires the domain owner to set it up correctly age the receiver to verify the records and actually distrust or discard the email if they don't match. Both steps aren't trivial, and configuration errors are more common than actual spoofing. DMARC is supposed to fix everything, but only if the domain owner cares enough to do more than the bare minimum setup
  - redman25 2y ago
    Ah, so this is a failure on nintendo's part for not protecting their email domain properly.
- DaSHacka 2y ago
  Isn't this the purpose of SPF/DKIM? https://www.cloudflare.com/learning/email-security/dmarc-dkim-spf/ https://www.cloudflare.com/learning/email-security/dmarc-dki...
mg794613 2y ago
They can easily stop it. Question is, will there be enough incentive for them to do so.
Guest9081239812 2y ago
I have a forum that receives a high number of DMCA claims. They link to pages on my forum where they claim I'm violating their copyright. However, when I review the pages, the content only mentions the name of a product or service. Imagine I write something here, like how I watched the movie "Inception" last week. A third party then sends me a DMCA request on behalf of Warner Bros, and Google removes this page from their search results. That's what I get, but thousands of them. It's fairly clear no human is reviewing the content any step of the way, otherwise they would see the only content on the page is a paragraph of plain text with the name of a movie. I feel like I have no recourse though. I don't have the time to make thousands of counter claims for some random forum pages that receive an insignificant amount of search traffic a year. It feels like a broken system. How can someone pull thousands of my pages from Google, and I'm either forced to spend weeks of my time trying to recover them, or I need to leave them removed? Where is the penalty or punishment for the false claims? Who is going to compensate me for my time?
- asddubs 2y ago
  does your forum have download or something in the name that could lead them/a scanning tool to think it's piracy download links? Not saying that would make the situation any more justified, I'm just kind of curious
  - Guest9081239812 2y ago
    Nope, it doesn't offer any downloads, or questionable content. The site has strict guidelines against any comments even mentioning piracy. The DMCA notices from Google direct me to the complaint in the Lumen Database. In those notices it lists my domain along with hundreds of others for each complaint, so I'm not alone here. I'm assuming a third party company is being paid to look after sending DMCA complaints for businesses. If they remove 100,000 URLs by sending DMCA notices, they can charge higher fees or get more contracts compared to other companies that only take down 10,000 URLs. There are no repercussions, so might as well automate the process and aim for big numbers.
pentagrama 2y ago
A bit of topic, considering my English isn't good at all, the article title isn't missing an "if" here? I had a hard time reading that. > A fake Nintendo lawyer is scaring YouTubers, and it’s not clear [if] YouTube can stop him
- dylanpyle 2y ago
  Interesting question. This "feels" valid (as a native speaker) - the "that" or "if" is implicit - but not a rule I had ever identified before. Looks like this may be called an "empty complementizer"; some more info here: https://en.wikipedia.org/wiki/Complementizer#Empty_complementizers https://en.wikipedia.org/wiki/Complementizer#Empty_complemen...
- jacobgkau 2y ago
  As the other reply mentioned, another valid inference would be "it's not clear [that] YouTube can stop him." And as a general rule of thumb, you almost never actually need a grammatical "that"-- it's best to leave it out for brevity unless it's useful to distinguish the meaning of the sentence (typically when the parts before and after it are longer and the demarcation point could be interpreted several ways without it). It's definitely valid as-is. It's debatable whether it's unclear (what would the alternative meaning be if you think it's unclear?)
- speak_plainly 2y ago
  This is an example of ellipsis, a common feature in informal English and news headlines. It's also an example of pragmatics, specifically a conversational implicature, where the omission is forcing the reader to rely on the context of the sentence to fill in the blank or derive the meaning. So while you are correct about the grammar, language use is often more complicated in practice.
jedberg 2y ago
The DMCA is totally broken, and has been from the beginning. There are no consequences for anyone making a fake claim. However there are severe consequences for someone who receives one and doesn't take action. There are counter-claims processes, but that puts a heavy burden on both the creator and the platform. I myself am guilty of abusing the DMCA. When I was fighting fraud for eBay and PayPal, if we found someone hosting a phishing site, we would use the DMCA to get them to take it down, claiming they were violating the copyright of the logo. We would send DMCA notices to any host in any country. Most would just oblige. A few would reply and inform us they weren't in the USA. But it worked because the platforms feared the consequences of not following it, and there was no risk to us. The DMCA needs fixing by adding severe consequences for incorrect use.
- prmoustache 2y ago
  Please define severe. At worst your account on a platform is deleted. This is not severe.
  - jedberg 2y ago
    That's pretty severe if your entire income is from said platform. And I was talking about severe consequences for the platform, not the creator. The platform could become liable for all the content across the entire platform if they don't act on a single DMCA notice, if they lose their protection as a platform because of it.
    - prmoustache 2y ago
      > That's pretty severe if your entire income is from said platform But that is also pretty dumb to base your entire income in a platform that can delete your account for any reason at any point in time.
      - jedberg 2y ago
        Do you have a job where you rely on a single employer for most of your income? An employer that can fire you at any time? At least creators have more control over their income.
omolobo 2y ago
So the first email was from a Protonmail account, and the second one was spoofed and obviously had incorrect headers. Are you saying Youtube doesn't check for these when processing take-down requests?
- jandrese 2y ago
  What incentive does Youtube have to get this right? They have a major disincentive to ever push back on the content cartels because even one false negative could put them on the hook for trillions of dollars worth of damages, even if it was due to sloppy work on the cartel's part. It is no skin off of Google's back if they take their cut of the revenue from the wrong person, it's all the same to them. The only way to get Google to care would be for content creators to start abandoning the platform on mass, but they don't really have anywhere to go (sorry Vimeo). Even then Google views content creators as a dime a dozen, so to get the numbers you need to make them notice would be exceptional.
jokethrowaway 2y ago
What about verifying the entity sending the request is legit? An email @nintendo.com is not that hard to get for the legal team of nintendo
toasted-subs 2y ago
Maybe don’t bully anyone unrelated to your organization until active shooters become a regular occurrence at their own office building.
miki123211 2y ago
I'm surprised Russia / China / North Korea aren't using this process against dissidents and activists. If you're not reachable by American law enforcement, it seems like such a low-effort way to remove any content off the internet that you don't like. Getting access to the real names and addresses of these people is a nice bonus too; I'm sure their intelligence services would have plenty of uses for this information. If there's one way of making the DMCA (and similar legislation around the world) go away, spinning it as an anti-free-speech law with national security concerns is probably it, especially considering the upcoming US administration.
bedhead 2y ago
YouTube can only stop if it the guy goes on Joe Rogan, then they can screw around with it with impunity.
samuelg123 2y ago
Do YouTubers have any recourse against Google or the faker? Seems like a false DMCA takedown would be a first amendment violation.
Osxnowofjpdlw 2y ago
https://www.reddit.com/r/emulation/comments/1fzemjw/youtube_strikes_and_sketchy_nintendo_emails/ https://www.reddit.com/r/emulation/comments/1fzemjw/youtube_...
owofjp39kyks 2y ago
https://www.reddit.com/r/emulation/comments/1fzemjw/youtube_strikes_and_sketchy_nintendo_emails/ https://www.reddit.com/r/emulation/comments/1fzemjw/youtube_...
Brian_K_White 2y ago
This is wonderful. Automate this with vpns and ai and many individual volunteers and essentially make youtube take all of their content down, forcing them to rethink their policy. Use youtube's bad policy against itself.
RecycledEle 2y ago
Maybe the US Congress can amend the DMCA so that every company must publically list an email contact that must respond correctly to requests that take the form of forwarded DMCA notices and communications about IP issues. The company would have to reply with a confirmation or denial of the communication. Companies could easily do this by including a tracking number for each communication, along with a copy of the communication then checking that tracking number on requests for confirmation.
mrep8 2y ago
Fuck Nintendo! They were the first to "get inspired" from others, also being against copyrights because everybody benefits from copying each other. Let them die.

259 points by tombot 2y ago

101008 2y ago

The system is broken and I can't see a way to fix it. Maybe pay to send a takedown notice?

pavel_lishin 2y ago
I think a sufficiently large company would still pay - it'd likely be a drop in the bucket compared to hiring a legal team. (A troll like the one in the article? Still, depends on the price.) I think it should switch to the strike system that YouTube, at least, favors: if you issue three fraudulent DMCA notices, you lose the ability to do so again in the future.
- pablok2 2y ago
  Look at Nintendo, they're creating opportunities even when they try to stop anyone from using their things.
- rcarmo 2y ago
  ...until you spoof a new e-mail address. That won't scale well.
  - okanat 2y ago
    The DMCA takedown form can also request identity confirmation.
  - pavel_lishin 2y ago
    Require registered law firms to file these. Yes, it'll cost money. But these fraudulent claims cost money, too.
- IgorPartola 2y ago
  Not a lawyer but isn’t it your rights to protect your copyright? As in, if you file fraudulent notices, YT removes you ability to file more, then you have a legitimate notice to file, now you presumably can sue YT for denying you the right to defend your copyright.
  - WesolyKubeczek 2y ago
    Tough shit, you shouldn’t have sent the three fraudulent ones then. It’s all in the terms of service you have agreed to.
    - onionisafruit 2y ago
      Youtube would probably be violating dmca safe harbor if they required claimants to agree to their terms of service.
      - pavel_lishin 2y ago
        Ideally, this would be written into law.
    - IgorPartola 2y ago
      I mean I don’t disagree with you as a person. I am saying that YT might be hesitant to take this stance because the legal system might not share this sentiment. That’s for their lawyers to figure out.
  - pavel_lishin 2y ago
    > isn’t it your rights to protect your copyright? Sure. But you don't have the right to harass people who haven't done so. I'm obviously not a lawyer, but I would imagine that at some point, vexatious litigation protections ought to kick in.
- dylan604 2y ago
  And who decides a claim was fraudulent? Historically, the fraudulent claims have gotten away with it while the target has at least had to remove the video or at worst had their accounts banned. Yet, nothing happened to the fraudster.
gorby91 2y ago
For larger and more litigious companies like Nintendo one would think YouTube wouldn't continue to accept takedown requests from random unverified users
- LegionMammal978 2y ago
  The problem with that is, the law absolutely demands that the platform comply with any valid takedown notice, so YouTube isn't going to risk having any false negatives (due to internal miscommunications on Nintendo's side, etc.). It's made the responsibility of the uploader to challenge it with a counter-notice, but YouTube makes the process for those far more difficult than what the law says. (YouTube opens itself up to liability if it doesn't put the video back up upon receiving a counter-notice, but it's not like the uploader would be able to sue YouTube for much of anything.)
  - FireBeyond 2y ago
    In this case, the notice wasn't even quoting the right section of law! Is it still considered a valid takedown notice, then?
ghaff 2y ago
The problem with any loser-pays or adjacent system is that you inherently favor anyone with deep pockets even more than the system does today.
- gruez 2y ago
  It's "fake" lawyers, so I doubt they have deep pockets.
  - ghaff 2y ago
    In this particular case but you make it hard for the fake "little people" to pursue claims and you make it hard for the real "little people" to do so as well while not really inconviencing large corporations at all.
lupusreal 2y ago
10 year prison sentence for anybody sending fraudulent takedowns, including all lawyers involved.
- undersuit 2y ago
  How do I prove it's fraudulent? Hire a lawyer?
  - lupusreal 2y ago
    Crimes are prosecuted by the government.
    - undersuit 2y ago
      Never denied this fact.
      - lupusreal 2y ago
        To be clear, I am suggesting that fraudulent DMCA claims should be a crime, the government should investigate and prosecute these claims after you report the crime to them.
- Workaccount2 2y ago
  This is great until a small time artist gets put on trial facing 10 years for art used by megacorp, that is originally theirs but hard to prove it.
  - oneeyedpigeon 2y ago
    In this scenario, has megacorp proved the art is theirs? Because, if so, how, and if not, then surely the original claim isn't unambiguously fraudulent?
mirekrusin 2y ago
This thing should be based on some cryptographic proof/claim, it's really not that difficult to setup. More problematic part is to agree that everybody should be using "this" method, not "that" method.
BlackFly 2y ago
FRAND registry of copyrighted works. The registry would be provably connected to the creator, the royalty rate would be published ahead of time based on use. Infringement could be seen as accidental at first instance and royalty rates charged after discovery. Copyrighted work not registered? Then you are free to attempt your own single distributor network without legal protection, you can always register it some time after you fail. Charge the creator the royalty rate (or some fraction) they define in taxes to the registry so they don't set ridiculously high rates. Could also charge maintenance fees to automatically lower the rates that are so high that nobody wants to distribute at that price, heck the entire copyright limit could just be replaced with some compounding increase in maintenance fees over time. If the work is really successful they may maintain it longer, but unsuccessful works might just become moneypits very quickly. In this case, the identity of the legal department would be directly connected to the infringing content found in the video which YouTube would have access to to verify. It also wouldn't be a takedown but a royalty demand or they could have registered "Let's play" as not requiring royalties. In principle though, YouTube or even the creator could just do all of this upfront. That's my idea, in the vein of, "We have the technology to do this better."
- imglorp 2y ago
  DMCA is working exactly as intended: the asymmetry is the house advantage, keeping IP holders in the green and consumers in fear of their power. Any innocent casualties who were benefiting culture and society are acceptable losses. It's not going to change as long as they keep buying politicians.
helpfulclippy 2y ago
Fraudulent claims — those in which the filer knew or should have known that they did not hold any copyright being infringed upon nor were they duly authorized to act on behalf of another party whose copyright was being infringed upon — should be treated as such, with exposure to civil and criminal penalties for the individuals involved as well as their employer. Platforms should only accept takedown requests through channels in which a person has credibly identified themselves so that they can be held accountable in this way.
stackskipton 2y ago
No, just enforce the DMCA. Youtube has setup this fake DMCA system where they are acting like they enforcing DMCA but not actually. DMCA has protection for creators. You can say "Copyright holder is wrong, put my content back up and I'll see them in court." and "They did this maliciously, I'll see them in court." However, YouTube fake DMCA system is using the provision of "We don't have to host any content we don't want to." so creators are stuck dealing with corporate bureaucracy. Personally, I think YouTube should lose DMCA protection if they want to run this side system.
- mdasen 2y ago
  Is YouTube playing a bit loose with the DMCA's requirements here? * YouTube has no liability for incorrect take-downs (17 USC § 512 (g) (1)) * That limitation on liability only exists if they restore access to the disabled material within 10-14 business days of receipt of a counter-notice (17 USC § 512 (g) (2) (C)) https://www.law.cornell.edu/uscode/text/17/512 https://www.law.cornell.edu/uscode/text/17/512 YouTube doesn't have to host any content they don't want to. However, it seems likely that a court would say "that doesn't absolve you of complying with the counter notice provisions of the DMCA. You can't just say that you don't want to host any content that goes through a counter notice." There are always limitations on the whole "we don't have to host things we don't want to." I doubt a court would let them use that as an excuse to ignore an explicit mandate of the DMCA, but IANAL. I think the problem is more likely that creators don't want to sue YouTube or have the resources to go up against Google.
  - cmeacham98 2y ago
    > You can't just say that you don't want to host any content that goes through a counter notice. Why not? (at least legally speaking, it'd be a PR disaster I'm sure) YouTube is not obligated to host any videos on their platform and US law allows for businesses to discriminate for almost any reason (except specific protected classes like race or sex).
  - stackskipton 2y ago
    They have to comply with DMCA. However, YouTube commonly strikes stuff without DMCA claims or when they get DMCA claim, they remove the video and will not give video owner a chance to counter claim. They will just say "Yea, we got DMCA but now we are exercising our provision to refuse to host anything we don't want to so video is never going back up."
JasserInicide 2y ago
The system is broken and I can't see a way to fix it. With blood. No I'm not being edgy. That is the only way anything is going to change regarding the litany of fucked up corporate practices in our country. Our governments are ineffective at best and are active abettors at worst (read The Chickenshit Club for why they won't ever seriously prosecute execs). Boeing (completely different scenario from the OP but it's recent) has no qualms with killing to maintain the status quo, why should people that want actual change be any different?

ikekkdcjkfke 2y ago

Impersonating with intent to damage is legal?

emilamlom 2y ago
When the penalty for frivolous and fake dmca takedowns is basically non-existent, it practically is.
- vezycash 2y ago
  DMCA works on a "takedown first, ask questions later" basis. Therefore, the solution is to flood YouTube and Google with massive, frivolous DMCA requests targeting the creators of DMCA like Microsoft, Apple, and Disney. They'll solve the problem if it affects them, maybe.
  - emilamlom 2y ago
    DMCA is for user generated content on platforms, so microsoft wouldn't have a lot of surface-area to target. That said, youtube gives preferential treatment to the largest creators and companies. Apple and Disney could easily call up their manager Jerry at Youtube and deal with frivolous takedowns. Small creators often have no direct contact with a human at youtube and have X as their best option for contact. Unless they know the process and have enough money for a lawyer, they're shit out of luck.
    - galleywest200 2y ago
      Large companies just sue people who make false DMCA claims, but small creators cannot afford to do that when large companies make false claims about them. It is a biased system. https://www.techdirt.com/2024/03/29/bungie-youtuber-settle-lawsuit-over-fraudulent-dmca-takedowns-for-youtube-videos/ https://www.techdirt.com/2024/03/29/bungie-youtuber-settle-l...
- empressplay 2y ago
  Seems to me like it's still fraud, by definition? If you monetize your content you can prove loss, if a competitor is engaging in the fraud even better! Those people being targeted by this troll should band together and sue.

skrebbel 2y ago

When DMCA was proposed, the internet was up in arms predicting exactly this sort of stuff. It was a ridiculous law then and it is now.

yyyyz 2y ago
[flagged]
- gjsman-1000 2y ago
  If you read between the lines in the article, YouTube literally just said 94% of takedowns are real.
- kbolino 2y ago
  And now the Internet is largely a sterile place where the primary business model is built around advertising, selling "data" to "partners", and exploiting gamblers and addicts, while the companies most "saved" from piracy spend hundreds of millions of dollars every year to make increasingly unwatchable, unlistenable, and/or unplayable crap. I can imagine worse outcomes, but I can certainly imagine better ones too.
- ndriscoll 2y ago
  The DMCA predates Napster, Gnutella, and Bittorrent. It did nothing to prevent piracy, which exploded in the years after it was passed. Low-enough cost convenient enough subscription services moved people away.
- thayne 2y ago
  Is this sarcastic? There is still lots of piracy, and streaming services that made it more convenient to consume content, like Netflix and Spotify did far more to reduce piracy than DMCA did. And quite a few people have gone to jail, including for creating ways to circumvent DRM, which wasn't illegal before DMCA.
- KevinGlass 2y ago
  Don't feed the troll. If you look at this account's comments it's just inflammatory statements.

m3kw9 2y ago

It looks like a hater with a suck channel who has mental issues, but also knows how to use LLMs to generate fake lawyer letters

ternnoburn 2y ago

I worry about let's plays (especially let's plays without commentary). They pretty clearly exist in a "yes, this is copyright infringement but yes, they are generally considered positive for a game" space. The moment some game creator decides to test this will get very interesting. Not good interesting.

ferbivore 2y ago
Why do you think a video capture of a computer program would infringe the copyrights of the program's creators?
- yuliyp 2y ago
  A video game contains text, images, videos, and/or audio which are copyrightable, even if the game mechanics nor the player's decisions themselves are not copyrighted by the creators of the game.
- seventhtiger 2y ago
  Games are incidentally computer programs, but what's relevant is that they're audiovisual content. Video capture of video would infringe on copyrights which is what video games are.
do_not_redeem 2y ago
It's not immediately clear to me that this is true. Video games are designed to be played interactively. Streaming a single playthrough via a non-interactive medium strikes me as transformative. Would you say a screen capture of Microsoft Excel is also copyright infringement? If not, what would you say is the legal basis for treating that differently than a video game?
- Uehreka 2y ago
  > Video games are designed to be played interactively. Streaming a single playthrough via a non-interactive medium strikes me as transformative. This is one of those areas where principles like “fair use” and “transformative use” don’t really matter, since we’re talking about YouTube de facto policy, not the law. If YouTube decides to honor the claims, then that’s what happens. And YouTube generally errs hard in the direction of rightsholders just to be safe.

probably_wrong 2y ago

It is perfectly clear that YouTube can stop it. As the article points out, we know there are things YouTube can do because those are the very same things The Verge asked about and YouTube refused to answer. The DMCA is broken, yes, but YouTube has made it worse with their kind-of-but-not-actually-DMCA counter-claim process. If they really wanted to solve it, here's an idea: if you get a takedown notice you also get a button that says "I am sure my content does not infringe copyright and I'm willing to go to court for it". YouTube reinstates your content and, if the entity with the claim disagrees, they can take you personally to court. Is this good? No, but that's on the DMCA. Is it better than now, when you have no recourse? I'd say yes.

ToucanLoucan 2y ago
They wouldn't even need to go that far. The current way YouTube's system works is so deck-stacked against the creator to a ludicrous degree. Basically any "copyright holder" just has to say "this belongs to me" and YouTube immediately funnels all revenue for the video to that holder, with basically no oversight whatsoever, and as anyone in the space will tell you, a video makes 90% of it's money in the first few days which means these holders can grab the monetization right out from under a creator and steal just, all their fucking money. It's ridiculous. Like all you would have to do to, perhaps not fix, but heavily mitigate this, would be to have YouTube just... hold onto the revenue until the dispute is resolved. It's barely even a change. And most of the time, when creators do counter the claims, they're eventually dropped but again because of how that system works, YouTube has already funneled all their money to the claimant, irrespective of the determined validity of the claim. And it would discourage bullshit claims because even as low-rent a scam as this is, it is some amount of work, and if there's no payout, you necessarily reduce the number of scammers who will attempt it. I don't know if that's a DMCA thing, I admittedly haven't researched it in a long time, but I don't see how that would put YouTube at any kind of liability. Any reader, do feel free to correct me.
- xvector 2y ago
  Big tech has such a twisted incentive structure for devs that I don't see this getting solved unless it impacts YouTube's bottom line. Execs won't care, and ICs will be actively penalized for fixing this vs working on "business priorities."

nfriedly 2y ago

Nintendo's problem is that this was fairly believable because it lines up pretty closely with their own past behavior. Nintendo regularly drags some of their biggest fans through the dirt with bogus copyright claims and other legal nonsense.

JohnMakin 2y ago

The DMCA has absolutely ruined a decade+ long hobby of mine, which was streaming/content creation. I used to have really fun streams not that long ago that featured a variety of relaxing/cool music set to the backdrop of me messing around on the computer, or in some game. Everyone was fine with this arrangement for a long time. Then, things suddenly changed a few years ago. First your VODs would get yanked and you'd get a warning if you played some extremely popular song, and it was like ok, I understand that. But now it's even spread to in game audio of a game I literally have purchased. That is ridiculous to me. There are games I actually cannot publish playing with full audio settings enabled. That is ridiculous no matter your views on the DMCA, and I'd even go farther and say it's completely ridiculous that I cannot use audio I have purchased or somehow leased on my own content. Why does it have to be this way? Someone can try to convince me this is somehow sane or necessary, but I really doubt it.

protoster 2y ago
My guess as to why it's necessary to nuke all potentially copyright audio is that the platform is liable for infringement, and as a result they have a policy to shoot first and ask questions later. This is justified because in overwhelming majority of cases the streamer does not have a license for the audio. In the case that the copyright audio is coming from a game, there is no way currently for the platform to automatically verify that you have a license or not, so once again they shoot first, ask question later. This is unfortunate, but as usual, bad actors ruin the commons for everyone.
- JohnMakin 2y ago
  > This is justified because in overwhelming majority of cases the streamer does not have a license for the audio I guess my point is that this arrangement was fine for a very, very long time. Why is it suddenly not fine in the last handful of years? Who is standing to gain here? In my view, it hurts the very platforms and industries this is trying to "protect." Twitch/YT/etc. are harmed because the content will be inherently worse, and copyright audio IP is hurt because it will spread to fewer listeners. Not only this, but if it were available to me, I actually would pay to license the audio I use, but there is no mechanism to do that! A similar dumb thing happened a few years ago with the PGA tour - they decided that anyone re-posting PGA clips without their permission, even if it was for commentary/parody/etc., was all of a sudden not permissible. So, all the golf content on IG/TikTok/etc got catastrophically worse overnight, and PGA (which struggles with viewership, especially young viewers) gets less free exposure. There's absolutely no way this was a positive outcome for anyone involved, so why?

redman25 2y ago

I had no idea spoofing email sender was so easy. Does anyone know of a good way to defend against this? I've always taken it for granted that if the sender was a domain that I trusted that I could trust the email itself.

wongarsu 2y ago
DKIM and SPF are supposed to prevent email sender spoofing, but that requires the domain owner to set it up correctly age the receiver to verify the records and actually distrust or discard the email if they don't match. Both steps aren't trivial, and configuration errors are more common than actual spoofing. DMARC is supposed to fix everything, but only if the domain owner cares enough to do more than the bare minimum setup
- redman25 2y ago
  Ah, so this is a failure on nintendo's part for not protecting their email domain properly.
DaSHacka 2y ago
Isn't this the purpose of SPF/DKIM? https://www.cloudflare.com/learning/email-security/dmarc-dkim-spf/ https://www.cloudflare.com/learning/email-security/dmarc-dki...

mg794613 2y ago

They can easily stop it. Question is, will there be enough incentive for them to do so.

Guest9081239812 2y ago

I have a forum that receives a high number of DMCA claims. They link to pages on my forum where they claim I'm violating their copyright. However, when I review the pages, the content only mentions the name of a product or service. Imagine I write something here, like how I watched the movie "Inception" last week. A third party then sends me a DMCA request on behalf of Warner Bros, and Google removes this page from their search results. That's what I get, but thousands of them. It's fairly clear no human is reviewing the content any step of the way, otherwise they would see the only content on the page is a paragraph of plain text with the name of a movie. I feel like I have no recourse though. I don't have the time to make thousands of counter claims for some random forum pages that receive an insignificant amount of search traffic a year. It feels like a broken system. How can someone pull thousands of my pages from Google, and I'm either forced to spend weeks of my time trying to recover them, or I need to leave them removed? Where is the penalty or punishment for the false claims? Who is going to compensate me for my time?

asddubs 2y ago
does your forum have download or something in the name that could lead them/a scanning tool to think it's piracy download links? Not saying that would make the situation any more justified, I'm just kind of curious
- Guest9081239812 2y ago
  Nope, it doesn't offer any downloads, or questionable content. The site has strict guidelines against any comments even mentioning piracy. The DMCA notices from Google direct me to the complaint in the Lumen Database. In those notices it lists my domain along with hundreds of others for each complaint, so I'm not alone here. I'm assuming a third party company is being paid to look after sending DMCA complaints for businesses. If they remove 100,000 URLs by sending DMCA notices, they can charge higher fees or get more contracts compared to other companies that only take down 10,000 URLs. There are no repercussions, so might as well automate the process and aim for big numbers.

pentagrama 2y ago

A bit of topic, considering my English isn't good at all, the article title isn't missing an "if" here? I had a hard time reading that. > A fake Nintendo lawyer is scaring YouTubers, and it’s not clear [if] YouTube can stop him

dylanpyle 2y ago
Interesting question. This "feels" valid (as a native speaker) - the "that" or "if" is implicit - but not a rule I had ever identified before. Looks like this may be called an "empty complementizer"; some more info here: https://en.wikipedia.org/wiki/Complementizer#Empty_complementizers https://en.wikipedia.org/wiki/Complementizer#Empty_complemen...
jacobgkau 2y ago
As the other reply mentioned, another valid inference would be "it's not clear [that] YouTube can stop him." And as a general rule of thumb, you almost never actually need a grammatical "that"-- it's best to leave it out for brevity unless it's useful to distinguish the meaning of the sentence (typically when the parts before and after it are longer and the demarcation point could be interpreted several ways without it). It's definitely valid as-is. It's debatable whether it's unclear (what would the alternative meaning be if you think it's unclear?)
speak_plainly 2y ago
This is an example of ellipsis, a common feature in informal English and news headlines. It's also an example of pragmatics, specifically a conversational implicature, where the omission is forcing the reader to rely on the context of the sentence to fill in the blank or derive the meaning. So while you are correct about the grammar, language use is often more complicated in practice.

jedberg 2y ago

The DMCA is totally broken, and has been from the beginning. There are no consequences for anyone making a fake claim. However there are severe consequences for someone who receives one and doesn't take action. There are counter-claims processes, but that puts a heavy burden on both the creator and the platform. I myself am guilty of abusing the DMCA. When I was fighting fraud for eBay and PayPal, if we found someone hosting a phishing site, we would use the DMCA to get them to take it down, claiming they were violating the copyright of the logo. We would send DMCA notices to any host in any country. Most would just oblige. A few would reply and inform us they weren't in the USA. But it worked because the platforms feared the consequences of not following it, and there was no risk to us. The DMCA needs fixing by adding severe consequences for incorrect use.

prmoustache 2y ago
Please define severe. At worst your account on a platform is deleted. This is not severe.
- jedberg 2y ago
  That's pretty severe if your entire income is from said platform. And I was talking about severe consequences for the platform, not the creator. The platform could become liable for all the content across the entire platform if they don't act on a single DMCA notice, if they lose their protection as a platform because of it.
  - prmoustache 2y ago
    > That's pretty severe if your entire income is from said platform But that is also pretty dumb to base your entire income in a platform that can delete your account for any reason at any point in time.
    - jedberg 2y ago
      Do you have a job where you rely on a single employer for most of your income? An employer that can fire you at any time? At least creators have more control over their income.

omolobo 2y ago

So the first email was from a Protonmail account, and the second one was spoofed and obviously had incorrect headers. Are you saying Youtube doesn't check for these when processing take-down requests?

jandrese 2y ago
What incentive does Youtube have to get this right? They have a major disincentive to ever push back on the content cartels because even one false negative could put them on the hook for trillions of dollars worth of damages, even if it was due to sloppy work on the cartel's part. It is no skin off of Google's back if they take their cut of the revenue from the wrong person, it's all the same to them. The only way to get Google to care would be for content creators to start abandoning the platform on mass, but they don't really have anywhere to go (sorry Vimeo). Even then Google views content creators as a dime a dozen, so to get the numbers you need to make them notice would be exceptional.

jokethrowaway 2y ago

What about verifying the entity sending the request is legit? An email @nintendo.com is not that hard to get for the legal team of nintendo

toasted-subs 2y ago

Maybe don’t bully anyone unrelated to your organization until active shooters become a regular occurrence at their own office building.

miki123211 2y ago

I'm surprised Russia / China / North Korea aren't using this process against dissidents and activists. If you're not reachable by American law enforcement, it seems like such a low-effort way to remove any content off the internet that you don't like. Getting access to the real names and addresses of these people is a nice bonus too; I'm sure their intelligence services would have plenty of uses for this information. If there's one way of making the DMCA (and similar legislation around the world) go away, spinning it as an anti-free-speech law with national security concerns is probably it, especially considering the upcoming US administration.

bedhead 2y ago

YouTube can only stop if it the guy goes on Joe Rogan, then they can screw around with it with impunity.

samuelg123 2y ago

Do YouTubers have any recourse against Google or the faker? Seems like a false DMCA takedown would be a first amendment violation.

Osxnowofjpdlw 2y ago

https://www.reddit.com/r/emulation/comments/1fzemjw/youtube_strikes_and_sketchy_nintendo_emails/ https://www.reddit.com/r/emulation/comments/1fzemjw/youtube_...

owofjp39kyks 2y ago

https://www.reddit.com/r/emulation/comments/1fzemjw/youtube_strikes_and_sketchy_nintendo_emails/ https://www.reddit.com/r/emulation/comments/1fzemjw/youtube_...

Brian_K_White 2y ago

This is wonderful. Automate this with vpns and ai and many individual volunteers and essentially make youtube take all of their content down, forcing them to rethink their policy. Use youtube's bad policy against itself.

RecycledEle 2y ago

Maybe the US Congress can amend the DMCA so that every company must publically list an email contact that must respond correctly to requests that take the form of forwarded DMCA notices and communications about IP issues. The company would have to reply with a confirmation or denial of the communication. Companies could easily do this by including a tracking number for each communication, along with a copy of the communication then checking that tracking number on requests for confirmation.

mrep8 2y ago

Fuck Nintendo! They were the first to "get inspired" from others, also being against copyrights because everybody benefits from copying each other. Let them die.