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Andrew Masson is an IPilogue writer and 1L JD candidate at Osgoode Hall Law School.

YouTube content creators must be hyper-aware of copyright. In one of the strangest instances of a copyright takedown, Bungie, the developer of Destiny 2, was issued on their own YouTube page for content they created and held copyright in. In Bungie’s most recent (This Week At Bungie), they revealed that someone had impersonated CSC (the company Bungie partners with to protect their IP) to target Bungie and Destiny content creators with DMCA strikes.

The IPilogue published a piece on DMCA strikes. DMCA strikes are the mechanism by which content hosting websites can protect themselves from litigation by IP holders. The penalties for DMCA violation on YouTube are severe. After three strikes, a channel is . Thankfully for the targeted content creators, their videos were enabled and the fraudulent strikes removed.

The provided some rare insights into how Bungie handles its IP protection. Early speculation was that it was an algorithm error, but Bungie clarified that they do not use or authorize CSC to use algorithms on YouTube to issue takedowns. Another prominent rumor was that their recent had meant Sony Entertainment was instituting stronger IP protections. However, Bungie stated that all CSC actions are manually reviewed and authorized by Bungie, indicating Sony has no part in Bungie’s IP protection. It also would not have made sense for Sony to issue a DMCA strike against Bungie, the first indication that these DMCA strikes were a targeted attack.

that the targeted attacks occurred because of recently issued legitimate strikes against people publishing their OSTs (original soundtracks) on YouTube. It is believed that those individuals targeted Bungie and content creators as a result. The creators they targeted were publishing Destiny content but had not violated bungie’s . The creators and their communities were initially upset with Bungie over the strikes. However, Bungie and YouTube quickly resolved the issues with Google identifying the fraudulent accounts that originated the DMCA strikes and removing them.

Bungie has used to control the narrative concerning the attacks. It prides itself on being responsive to its community and encouraging . By handling all DMCA actions manually, Bungie is demonstrating that it wants to enforce DMCA strikes only against actual violations. People will be less fearful and more prone to creating with the Destiny IP. Additionally, Bungie has dedicated themselves to working with creators to publish more of their OSTs not currently available on their channels.

The post Bungie Receives DMCA Strike Against Itself? appeared first on IPOsgoode.

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Booker Zhang is an IPilogue Writer and a 1L JD Candidate at the University of Manitoba.

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Imagine you are very interested in a three-hour movie that you do not have the time or patience to finish or a horror movie that you are too scared to watch. If a video condenses the film into short clips summarizing the plot, would you choose to watch the video instead? These movie recap videos have become extremely popular in China. While useful, they raise concerns of potential copyright infringement.

AmoGood, one of China’s most famous and influential movie recap bloggers, is well-known for his video series “Watching a Movie within X Minutes.” His on Bilibili, a popular Chinese video website, has over 2.42 million subscribers and 1400 videos. He has ��millions of likes on Facebook and YouTube. In 2017, AmoGood was involved in the first Chinese legal action against movie recap producers.

Five companies, including Walt Disney Company, Deltamac Co., Autoai Design Co., KKTV Co., and Garage Play, brought against AmoGood. They claimed that his videos infringed by using their movie clips without permission. , AmoGood argued that he used the materials for commentary, criticism, parody, news reporting, research, and scholarship, which do not require permission from rights holders. He also argued that his videos should not qualify as infringement as they are non-commercial (free to watch). After a two-year negotiation, AmoGood eventually reached an agreement with the plaintiffs. He released an official apology ��on his page in 2020 and compensated the claimed economic loss his videos caused.

Nevertheless, the lawsuit did not seem to deter AmoGood or other video bloggers of the same nature. AmoGood continues to make and post videos regularly. The market for this content has continued to grow, with an increasing number of creators uploading videos to YouTube and various video platforms. A Korean Youtuber began producing movie recaps in 2017 and has 1.84 million subscribers. His most popular video, explaining Gerald’s Game, has over 33 million views. The low cost and huge potential benefit of movie recaps are enticing.

Though national governments are attempting to address copyright risks, the internet goes beyond borders. The Chinese National Radio and Television Administration introduced a in 2018 to prevent illegal capture, cut, stitching, and adapting audio-visual programs. Japanese police three people for posting a 10-minute move recap on June 23, 2021. However, YouTube, the most popular video website worldwide, adopts a “” copyright policy that allows the reuse of copyright-protected material under certain circumstances without permission from the copyright owner. This ��policy generates difficulties when interfering with domestic intellectual property laws in different regions. It must also be applied on a case-by-case basis, making it impossible for YouTube to identify and eliminate each and every suspicious video.

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Andrew Masson is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

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Popular Twitch streamer Jeremy “Disguised Toast” Wang has exposed a massive flaw in the live-streaming platform Twitch’s . For those unfamiliar, Twitch is a live-streaming platform where content creators (i.e., streamers) broadcast themselves to an audience doing almost anything including playing video games, cooking, making music, performing ASMR, walking around in public, debating politics, etc. Viewers can tune into Twitch streams for free, but streamers and Twitch make money through viewers subscribing or donating. Twitch has been featured on the IPilogue in the past (relating to , , and the ) but this case is unique as it involves a different form of copyrighted media: TV shows.

Twitch Popularity

Since the start of the pandemic, live-streaming services have seen a massive increase in viewership. Twitch specifically in 2020 compared to 2019, with viewers clocking over 17 billion hours on the platform. It also gained more mainstream appeal, with American politician in 2021. With the increase in viewership, there is more money to be made and more people who have started streaming; streamers must now compete to attract and maintain viewers by providing engaging content. In the last couple of weeks, this has led to the “”, where streamers broadcast copyrighted TV shows and react with their viewers. feature and took it to the extreme by streaming an entire season of the popular anime Death Note over two weeks.

DMCA and Twitch

Wang had a fellow streamer initiate takedown claims against his broadcasts under the (“DMCA”) but was still able to stream Death Note for two weeks before Twitch acted against him. In , the IPilogue questioned how the DMCA will impact video hosting platforms. The DMCA protects platforms that host user-generated content against litigation; however, to be eligible, the platform must investigate and take down allegedly infringing material. Accordingly, states that when they are contacted regarding copyright violations or receive a takedown notification under the DMCA, they verify the claim and then issue a “DMCA strike” (signifying a confirmed copyright infringement) and a temporary ban against the streamer. Twitch has a 3-strike system—once a streamer receives three DMCA strikes, their account will be permanently deleted. Wang previously had not received any DMCA strikes and stated that he broadcasted Death Note as a warning to other streamers against broadcasting copyrighted material.

Wang’s experiment may have failed to scare other streamers because it took so long for Twitch to take action, but he did expose a massive issue with Twitch’s ability to protect copyright holders' interests. Twitch is not the first streaming platform to face these issues; in 2007, and a billion dollar lawsuit. This led to the creation of YouTube’s “Content ID” system to monitor posted videos and livestreams for music and other copyrighted material. However, not all forms of copyrighted material will be taken down on Twitch or YouTube as video game developers and publishers do not necessarily issue DMCA takedowns for streaming their released games.

Given that Twitch started as a niche platform consisting almost exclusively of people live-streaming video games and playing music from 2011 to 2019, they rarely received DMCA takedown requests. According to Twitch, they received fewer than 50 takedown notices a year before 2020; however, as streaming became more popular, increased exposure caught the attention of the music industry who began issuing . This resulted in Twitch implementing tools to check vods (i.e., recorded streams or clips saved by streamers), delete any with copyrighted material, and warn streamers to stop playing copyrighted music during their streams.

Future of Twitch

As Wang demonstrated, Twitch’s ability to police copyrighted material on their platform is still far behind that of YouTube. They seem unequipped to handle their massive increase in popularity and evolution in types of material live-streamed. Apart from music, Twitch is in the same position that YouTube was many years ago; they need to improve their ability to protect IP or risk losing protection from liability under the DMCA. This is significant because one of the media giants whose IP is being used may decide to go after Twitch as a platform instead of individual streamers.

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Natalie Bravo is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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is a 1994 (RPG) released in North America on the . It is the second entry in Nintendo’s series and the first to be translated and released outside of Japan. The game is satirical, featuring many zany characters and subversive content that mostly provides commentary and homage to Western culture. The soundtrack is just as strange, featuring , despite the of . The game’s 8-bit songs are inspired by genres ranging from to . Everything about the game defies what you would expect from a typical RPG, especially one from 27 years ago.

It also happens to be my all-time favourite game. ; the game has established itself as a . videos (LP) are a YouTube staple and popular games will have many LP series. Earthbound is no exception,

History of Earthbound

Though mass-marketed in a , Earthbound failed replicate its Japanese success in North America. Copies of the game along with a gamer’s guide packaged in special extra-large cardboard boxes sat unsold on shelves for months. Due to low sales ( sold in North America), the game remained a hidden gem for years until Earthbound’s main character appeared in the popular 1999 fighting game for the (and ), sparking a newfound interest in the forgotten series.

As popularity increased throughout the years, . Since many did not originally own or buy Earthbound, dwindling supply allowed the cartridges’ price to far beyond that of a regular SNES game. , software meant to emulate a game system, instead of shelling out over $100 USD to purchase the game. Thankfully, after endless lobbying from thousands of dedicated fans, Nintendo eventually re-released Earthbound for the Nintendo and for the in 2016—a move that finally allowed fans legal and affordable access to the game. The re-releases have also enabled many to broadcast their playthroughs with greater ease than previously possible. As it’s not on the yet, many who don’t own the older consoles may still enjoy watching others play online.

Let’s Plays & YouTube
Gamers and streamers often upload their gaming content onto sites like YouTube hoping to share their experiences with viewers. This type of video documentation is called “Let’s Play”. Legally publishing videogame footage largely depends on who the developers are and what they allow.

In late 2018, Nintendo discontinued the and implemented the . Nintendo “will not object to your use of gameplay footage and/or screenshots captured from games for which Nintendo owns the copyright (‘Nintendo Game Content’) in the content you create for appropriate video and image sharing sites,” as long as the guidelines are followed. The rules allow streamers to via “methods separately specified by Nintendo.” Nintendo further mandates “creative input and commentary” and explicitly disallows videos lacking such commentary. The remaining guidelines detail Nintendo’s reserved rights, Nintendo’s non-affiliation with YouTubers utilizing their intellectual property, and a FAQ section.

Copyright Claims
Earthbound content and music have remained mostly unscathed on YouTube for many years. Unfortunately, in recent months, many Earthbound players who uploaded their Let’s Plays have been struck with , effectively demonetizing the videos or, in some cases, outright removing them. One YouTuber, recently lost their Earthbound LPs’ ad revenue and their videos were removed. The YouTuber , with many fans responding with similar experiences and concerns.

How Does Sony Fit into This?

Nintendo owns the game’s brand and composed its music, but licensed the first two Earthbound series soundtracks to Sony for . Many fans were unaware of Sony’s Earthbound connection. Even though Nintendo allows LP videos, Sony can take down LPs and related content to protect its rights in the music. Users have attempted to dispute copyright claims, only to allegedly be hit by counterclaims from Sony. Google’s likely automatically detected Earthbound music and subsequently initiated the claims. , leading game developers to introduce “copyright-free” and . Earthbound is an old game though, and nobody seemingly knew Sony’s music license for the Japanese album even existed, until these claims arose.

The entire situation is noticeably disheartening for fans of a game where the music is integral to the plot and experience. Even though it is likely an algorithmic flagging issue, and Sony is entitled to defend their IP, the issue seems to indicate a larger problem. YouTube gaming is many users’ livelihood and/or dedicated hobby. Even if Sony eventually allows videos to return, unexpected copyright issues like these make the gaming process unnecessarily burdensome and financially detrimental. Suspended video publication interrupts potential ad revenue; while this may not have consequences for most, it can trouble users with millions of viewers. While potentially disingenuous to the experience, muting or changing the audio might be the easiest workaround to continue publishing LPs.

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Isaac has already garnered attention from some big names, as he was featured on Thursday's YFile Newsletter! Read what they had to say about him . And for a quick demonstration of how Isaac works, check out the video below:

You can find more information about the event, as well as full bios about our panelists, on our page.

Registration is still open until 11:30 am, so click to reserve your spot. In case you are not registered, or having some trouble with the Zoom link, the event will also be broadcast live on and will be available for viewing after the event ends.

We look forward to seeing you at 12:30 and hope you enjoy the show!

��

The post Our IP Innovation ChatBot Launch Event is TODAY! Are You Ready? appeared first on IPOsgoode.

True, Canada's recently enacted exception for 'Non-commercial User-Generated Content' ( Copyright Act) allows dissemination of derivative works yet admonishes that:

[T]he use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes.

However, as Teresa Scassa notes in her chapter “” in , section 29.21(1)(a) does not stop disseminators from capitalizing on the creative output by fans.

Furthermore, according to the recent annual release by the International Federation of the Phonographic Industry (IFPI) of their , UGC fan music videos are generating more money for the copyright owning recording industry than official music videos.^[1] This can in part be explained by the increased interest in the works by growth of the fan base not as passive consumers but rather by actively engaging with the copyright protected works. Allowing the audience to feel as though they can contribute by participating in the creative process is a powerful tool that a few large industries have only recently caught on to. Moreover, the more popular a work (even a derivative one) becomes, either via pay-per-click or page views, the more income generating ad revenue is earned. More ads viewed equates to greater revenue for the advertisers and hence greater justification for those companies to want to continue to purchase more online ad space on the intermediary’s website. Some intermediaries that have become known for their vast dissemination of UGC works have established these profit sharing incentives regarding works that bring in a lot of internet traffic, especially for those that go viral.

According to the IFPI report “YouTube is the biggest single access point to music for consumers internationally, with one billion users worldwide”.^[2] On YouTube, Google searches for videos which incorporate copyright protected songs. They then inform the record companies of this video. But, rather than US takedown notices interfering with the rights of UGC creators, copyright owners of pre-existing works find that it is more advantageous and profitable to get a piece of the action by monetizing the work. The record companies, instead of trying to have the videos taken down, appear to be licensing the video and then making “ad dollars” from the number of views. It is from this process that record companies are making more money from the UGC than the official music record. In so doing, copyright owners likely do not feel as threatened by the popularization of any derivatives from their works while UGC creators are kept from contravening subsection 29.21(1)(a) of the Copyright Act or having to argue fair dealing/use.

There is a pragmatic realization that demonizing and increasing restrictiveness of copyright law against users who appropriate the works of others, be it solely for enjoyment of the work or to make use of it in a UGC context, ; less content gets distributed among the public (which has negative societal effects) and there is less respect for the legitimacy of copyright holders leading to even more appropriation which cannot realistically be stopped.

Furthermore, the popularity that comes from fandom and UGC communities also informs the larger consuming public of what original content is trending among fellow community members and can act as advertising for the copyright owner.

It appears that this symbiotic relationship between users who want to express themselves personally and the copyright owners (and intermediaries who stand to gain from providing a forum in which users may have access to the fresh or at least alternative perspectives that UGC has to offer) promotes the purported purpose of copyright - to incentivize creativity.

While this can be a positive business model, benefiting all parties concerned, I would like to note a concern which arises. The Copyright Act legislatively permits, as part of a recognized greater social good, UGC creators to appropriate and use works of others in whole or in part when making solely non-commercial derivative works. Although some may describe these UGC creators as “amateur” in a pejorative way, in many cases these amateurs, while consuming society’s cultural works, produce high quality mash-ups, remixes and a host of other derivative works, copyrightable in their own right but typically not greeted with the respectable title of “author”. However, when a UGC work is being uploaded, the uploader agrees to the non-negotiable click-wrap contract (which stipulates that unless they own all elements with the work being uploaded the uploader is not entitled to enable revenue-generating ads). Should this necessarily give the copyright owner of the existing work the right to muscle-in or impose their influence by obstructing the viewers’ ability to fully enjoy the presentation of the UGC work without attention-distracting ads in or around the work? Furthermore, if the UGC generates huge hits, benefiting the host site and advertisers, it raises the question as to whether the UGC creator should be expected to forego any such benefits in order to avoid the risk of liability. I realize that the current system is a licence-based economic model contractually formulated to support the dissemination of UGC derivative works which may otherwise be taken down, and thus is arguably still a better alternative. However, in utilizing this business model, there should still be respect of the UGC work and its author when placing any ads. The Online Etymology Dictionary defines “amateur” as:

1784, "one who has a taste for (something)," from French amateur "lover of," from Latin amatorem (nominative amator) "lover," agent noun from amatus, past participle of amare "to love". Meaning "dabbler" (as opposed to professional) is from 1786.

If we consider it from its origins, doing something for the love of doing it would be a seemingly appropriate context for the rationale of the UGC exception. On the other hand, would it be fair to deny amateur creators the ability to gain any profit from the skill and judgment of their original (albeit derivative) work while permitting others to free ride on the commercial value of their works? This goes to whether Parliament’s restrictively phrased ‘solely non-commercial’ is appropriate in light of the way users actually engage with works and whether an appropriate balance of interests is achieved.

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In the decision no. 11/2014 handed down on January 31st, the Audiencia Provincial Civil de Madrid has rejected Telecinco’s appeal against the judgement of the Juzgado de lo Mercantil dated 20th September 2010.

The proceedings concerned a claim for copyright infringement raised by Telecinco as a consequence of the posting of some videos on the YouTube platforms youtube.es and youtube.com.

The Court of First Instance had found that YouTube bore no responsibility for the publication of copyrighted materials, since it acted as hosting provider having no control over the contents posted by users through the use of its services.

The appeal decision establishes itself in the wake of the judicial efforts of EU Member States’ courts to determine upon which conditions ISPs should face the consequences of violations (including copyright infringements) committed by users.

The legislative framework in force in the EU, in fact, constituted by the Directive 2000/31/EC (E-Commerce Directive), contains provisions which are likely to appear dated and, to a certain degree, not consistent with the evolution of the technological scenario.

The Court of Justice of the European Union, in the leading case Google v Louis Vuitton (C-236/08 to C-238/08), has pointed out that the provisions governing ISPs liability must be construed in accordance with the ways operators actually perform their services. A crucial factor to determine whether the liability exemptions set forth in the Directive are enforceable, in the Luxembourg Court’s view, is whether the ISP in question does act in a purely passive way, i.e. as an intermediary.

Moving to the case, the appeal brought by Telecinco against the decision of the Juzgado Mercantil was based on different grounds.

First of all, Telecinco alleged that YouTube did actually operate as a content provider with an editorial control over the website. Then, the point was not whether liability exemptions were applicable or not, since the argument of Telecinco assumed that YouTube bore a direct responsibility, acting as a content provider.

In a nutshell, the attempt of Telecinco was to demonstrate that YouTube fell outside the scope of the service providers and, accordingly, could not avail of the provisions of the E-Commerce Directive.

To support this claim, Telecinco referred to some circumstances that were supposed to reflect the exercise of an editorial control by YouTube. Among others, it was pointed out that (i.) YouTube had obtained from the relevant collecting societies the licenses concerning copyright and related rights over certain contents; ��(ii.) YouTube had established a content regulation through the implementation of a policy that must be accepted by users; ��(iii.) YouTube had provided particular “Terms and Conditions of Service”; (iv.) YouTube selected the most popular contents and provided a classification of the contents in different categories.

According to the Court of Appeals, none of these circumstances support the assumption that YouTube was operating as a content provider. The fact, for instance, that YouTube had obtained licenses for the use of certain contents or that contents were classified in different categories, does not imply that it is acting in a non-passive way, in the sense required by the Court of Justice to exclude the applicability of the liability exemptions.

The second point raised by Telecinco was that, even if YouTube acted as a service provider, the liability exemption for hosting providers -entrusted to Article 16 of the Law 34/2002 (implementing the E-Commerce Directive)- was inapplicable. In the appellant’s view, even were Telecinco qualified as service provider, it would have nevertheless had actual knowledge of the existence of unlawful activities. Thus, Telecinco could not benefit of the liability exemption.

In this regard, the Court expressly quotes the reasoning of the Tribunal Supremo in a ruling of 2009 regarding the construction of the requirement of “actual knowledge”. In the view of the Spanish Supreme Court, the actual knowledge must be established not only “when a competent authority has declared the unlawful nature of the contents, ordered the removal or the blocking of the same and the provider has been noticed of such decision”. In fact, even the knowledge of the unlawful activities that a provider obtains indirectly or otherwise, regardless of the specific ways, is relevant.

In the case at stake, the Court points out that a notice was given by Telecinco to YouTube that copyrighted contents had been unlawfully uploaded on the website and that Telecinco’s mark was featured on the images of the concerned videos. Making reference to the judgment of the Court of Justice in the case ��’O��é���� (C-324/09), the Court of Appeals has clarified that the sole communication that a rightholder provides to the owner of a website noting the existence of violation may not suffice to establish the “actual knowledge” requirement. For instance, the notice could be not specific enough in defining the contents that amount to copyright infringements.

In the case at stake, the Court has found that nothing in the notices given to YouTube permitted to identify which contents were infringing Telecinco’s rights. Then, YouTube had no actual knowledge of the parts of the website that must be subject to removal or blocking as result of a copyright violation.

The third and last argument advanced by Telecinco claims for the imposition over YouTube of a system aimed at blocking the access to its services to the users involved in copyright infringements.

As regards this point, the Court of Appeals has referred to some decisions of the Court of Justice (Sabam, C-360/10 and Scarlet C-70/10, in particular) to conclude that such a system would (i.) undermine the protection of other fundamental rights enshrined in the Charter of Fundamental Rights of the European Union, and (ii.) be in contrast with the absence of a general obligation of control over ISPs.

In fact, any order directed to ISPs for the removal of unlawful contents in breach of copyright is not per se prohibited in the EU relevant law, but must respect the conditions set forth under the Directive 2001/29/EC and 2004/48/EC, further to the E-Commerce Directive.

Then, the Court has rejected the appeal and confirmed the decision of the Juzgado Mercantil.

In light of the arguments convincingly used by the Court, it is supposed that there will be no room for different rulings in the case in the future.

[The original posting of this can be found on the blog, MediaLaws: Law and Policy of the Media in��a Comparative Perspective.]

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is YouTube’s system that automatically detects uploaded videos that infringe copyright.�� It works by creating an ID File for copyright protected��audio and video material and stores it in a database. When a video is uploaded, it is checked against the database and flags the video as a copyright violation if a match is found.�� When this occurs, the content owner has the choice of (1) blocking the video (making it inaccessible), (2) tracking the video’s viewing statistics or (3) adding advertisements to the video.

According to YouTube, Content ID is “very accurate in finding uploads that look similar to reference files that are of sufficient length and quality to generate an effective ID File.” In its early days, however, the automated removal system drew criticism because (1) the algorithm did not account for fair use provisions and (2) there was no appeal process.�� Currently, if a YouTube user disagrees with a decision by Content ID, it is possible to .

What are LPs?

“Let’s Play” ("LP") videos generally provide reviews and commentary of video games. Early LPs, known as “Screenshot LPs,” consisted of audio comments voiced-over still screenshots of games while they were being played. More recently, LPs have evolved to include full video captures of the game during the narrator’s play (known as “play-throughs”). Scott’s LP of Nintendo’s “,” for example, features 14+ hours of play-through footage accompanied by good-humored commentary and critiques of the game’s flow and “playability.”

Many producers of these video reviews (or “LPers”) make money off the advertisements on their LP channels. Zack Scott’s reviews, for example, have received millions of views to date and his LP channel, , has over 200,000 subscribers. ��A conservative estimate (assuming his ad rate is at the of the YouTube monetization spectrum - $1.50 per 1,000 views) puts his earnings at about $200,000 to date.��While this may seem like loose change compared to Nintendo’s , the volume of copyright material that Mr. Scott has used, combined with his channel’s large audience, has attracted the attention of Nintendo’s market researchers.

Copyright Analysis: Does the Use of Play-Through Footage Fall Under an Exception to Infringement?

While game developers and publishers have the right to control the use and distribution of the media in their games, LPers, like Zack Scott, have argued that the use of video footage in critical reviews should be considered fair use (the rough US equivalent to Canada's ) since LPs provide critical review. In a public posted to his Facebook page, Zack Scott supported his position with the following:

"Video games aren’t like movies or TV. Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don’t need to see it again. When I see a game that someone else is playing, I want to play that game for myself!"

While this might seem like a sensible argument to those in the gaming community, Mr. Scott should be aware that, in Canada at least, he is more likely to succeed by structuring his argument using the two part analysis set out in paras 49 to 50 of .

First, Scott could point out that he used the play-through footage for the purpose of criticism and review which does not constitute infringement under . Moreover, given that he attributes the footage to Nintendo in each LP, he is protected under s 29.1 (a) of the Act.

Second, Scott would have to argue that his dealing with the protected footage was "fair" by showing that his use of play-through footage fits the six criteria set out in paragraphs 54 to 59 .

(1) Purpose of the dealing: His role as an LPer, one could argue, is to “research and review” games for the gaming community. Thus, objectively speaking, he must be able to use some of the copyrighted works to illustrate his critique.

(2) Character of the dealing: While his use of the protected work is widely distributed (a factor that weighs against fair dealing), the fact that it is the custom of most LPers to include some play-through footage in their reviews could swing this factor back in favor of fair dealing.

(3) Amount of the dealing: While Scott does have over 14 hours of Nintendo play-through footage on his channel, he could argue that this is actually a small fraction of the total time taken to play through games like Luigi’s Mansion, weighing once again in favor of fair dealing.

(4) Alternatives to the dealing: Nintendo could point out that the existence of “Screenshot LPs” amounts to a reasonable alternative to “Video LPs” and weighs against fair dealing. Scott could counter this by arguing that the LP market had become crowded with LPers who use play-through footage. This resulted in a lack of alternative to his dealing.

(5) Nature of the Work: While Scott did not have permission from Nintendo to use the play-through footage in his LP, the game had certainly been “published” as it was available for purchase by the public. This would weigh in favour of fair dealing.

(6) Effect of the dealing on the Work: It is not clear what effect LPs have on the market value of the game under review. ��Just how much influence do LPers have on sales?���� would argue that LPs actually add market value to featured games because they encourage other gamers to buy them. Meanwhile, argue that LPs decrease market value of the games since passive gamers can simply watch LPers complete the game online. Without more detailed market analysis, however, .

Nintendo could just as easily argue that Scott’s use of play-through footage is not fair dealing (arguments attacking factors 2, 4, 5, and 6 in particular come to mind). It is worth noting, however, that after Scott's public complaint, Nintendo lifted the blocks on his LPs and chose instead to append its own ads to the videos.

Cost-Benefit Analysis of Nintendo’s LP Crackdown

Legal musings aside, the real issue is whether the LP ad revenues appropriated by Nintendo is worth the loss that could result from LPers who stop reviewing the company's products. ��In his public , Zack Scott stated:

“I'm a Nintendo fan. I waited in the cold overnight to get a Wii. I'm a 3DS ambassador. I got a Wii U at midnight when I already had one in the mail. I've been a Nintendo fan since the NES, and I've owned all of their systems.

… I love Nintendo.... But until their [ContentID] claims are straightened out, I won't be [reviewing] their games [on my LP channel]. I won't because it jeopardizes my channel's copyright standing and the livelihood of all LPers.”

Given Nintendo’s recent��, one would not fault the company for attempting to herd consumers towards more tightly controlled promotional channels in an effort to maintain control of its brand. However only time will tell whether this move actually results in a further dip in sales due to the loss of exposure through LPers. ��Were there gold coins in those brick blocks known as LPs? ��Nintendo seems to think not. ����

Beatrice Sze is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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In the case, the court disposed of the remaining issues left undecided from the April 5, 2012, New York Court of Appeal decision that had most of Viacom’s case. Viacom had brought the appeal following a , which was also decided by Judge Stanton (see and�� for our previous posts on this case). ��Viacom had alleged that hundreds of thousands of unauthorized clips of its programming, such as SpongeBob SquarePants��and The Daily Show, were readily accessible on YouTube, thereby infringing its copyright. In the most recent decision, the 2nd Circuit District Court considered: (1) Whether YouTube had knowledge of the infringing activity; (2) Whether YouTube was willfully blind to the infringing activity; (3) Whether YouTube had the “right and ability to control” the infringing activity; and (4) whether YouTube could claim protection under “safe harbor” pursuant to Section 512(c) of the (“DMCA”). ��In sum, Judge Stanton found no copyright infringement on the part of YouTube with regard to any of the remaining issues.

Issue 1: Did YouTube have knowledge or awareness of any specific infringement?

On this first issue, Viacom was challenged to bring forth evidence that YouTube had actual knowledge of the 63,060 infringing clips-in-suit. Put another way, Viacom had to demonstrate not only that YouTube had general knowledge of infringing activity on its website, but that YouTube knew exactly which clips were infringing Viacom’s copyright. On this point, Viacom conceded that it did not have evidence to support knowledge of specific infringement. Viacom argued, however, that this did not matter as the onus would be on the defendant to establish each element of its affirmative defence, including lack of knowledge or awareness, if it wished to apply the statutory "safe harbor" defence. ��As such, Viacom reasoned, it would be unlikely that YouTube could demonstrate it had no knowledge or awareness whatsoever of infringement, given the high volume of copyright-infringing material uploaded daily onto YouTube. ��On balance, the judge held that Viacom’s argument was “extravagant” and that per Congress, the DMCA was enacted specifically to protect service providers from the very burdensome task of monitoring for infringing material uploaded by users.�� Judge Stanton held that it was both fair and reasonable, under the DMCA, to place the burden of identifying infringing material on the copyright owners and that Viacom failed in establishing specific infringement by YouTube.

Issue 2: Was YouTube willfully blind to specific infringements?

On this second issue, the court explained that the threshold for willful blindness depended on the particular law governing the factual situation. Specifically, for cases under the DMCA, the threshold for willful blindness and subsequent disqualification from “safe harbor” is blindness to “specific and identifiable instances of infringement”.�� In the case at bar, the court did not find that Viacom provided specific locations of infringement, thus leaving YouTube to find the infringing clips on its own. ��Under these circumstances, it could not be��said that YouTube was willfully blind towards infringing activity, pursuant to the “safe harbor” provision of the DMCA. The holding on this issue is nicely summed up in a footnote of the decision: “Plaintiffs often suggest that YouTube can readily locate the infringements by using its own identification tools. [YouTube] has no duty to do so.”

Issue 3: Did YouTube have the “right and ability to control infringing activity” per ��of the DMCA?

On this third issue, the court defines the ability to “control infringing material” as requiring “'something more' than just the ordinary power over what appears on the provider’s website.” ��As such, the fact that a provider may be able to remove or block access to material posted is not sufficient to meet the threshold of control set out in of the DMCA. The governing principle on the “right and ability to control infringing activity” is set out as follows: “Clear knowledge of the prevalence of infringing activity, and welcoming it, does not itself forfeit "safe harbor". To forfeit that, the provider must influence or participate in the infringement.” ��Under this governing principle, the court held that YouTube did not meet the threshold for “influence” or “participation,” in contrast to - the only case to date in which a service provider was held to have met the required “something more” by strictly controlling user experience on its website and refusing access to users who failed to comply with its instructions.

Issue 4: Did YouTube syndicate the clips-in-suit to a third party, and if so, did such syndication occur “by reason of the storage at the direction of the user” within the meaning of ��of the��DMCA, so that YouTube may claim safe harbor?

On this fourth and last issue, the court quotes YouTube’s brief in reasoning that “syndication agreements merely give users alternate ways to view videos that users have stored on YouTube’s system.” ��As such, the court held that syndication merely provides access to material uploaded by users and does not imply that YouTube manually selected the infringing materials delivered over mobile and other systems, thus allowing the service provider to claim protection of "safe harbor".

Conclusion

Does the��DMCA��tend to favour the service provider over the copyright holder? ��In my opinion, this most recent decision reflects a broader, ongoing struggle to protect the commercial value of artistic production while allowing service providers like YouTube a certain amount of lee-way to develop their platforms for users. Enacted in 1998 under the Clinton Administration, the DMCA was drafted to comply with the�� and the . ��The "safe harbors" provision is, arguably, one of the aspects of the DMCA. ��On the one hand, as outlined in the discussion in Viacom v Youtube, it allows for service providers to develop their platforms for third-party users without the overhanging risk of copyright liability. ��In this manner, user-generated content is given the space to flourish, hosted by various online platforms. ��However, the "safe harbors" provision can also place a tremendous burden on copyright holders to monitor these service providers for potential infringement of their intellectual property. ��Short of having round-the-clock staff monitor sites such as YouTube, it is likely that copyright infringement would occur on a regular basis. ��Perhaps it is too early to take a side, but as it now stands, under the DMCA,��copyright holders must do much of the legwork in protecting their creative productions.

Recent amendments to the����under ��("CMA")��have propelled Canadian IP legislation into the twenty-first century, as the last modification occurred in 1997.���� that the "enabler provisions" of the amended legislation, along with increased tightening of the digital locks provisions, could potentially have led to a different outcome for Viacom, had it been a Canadian case. ��Under the CMA, the service provider is liable for copyright infringement merely if it��"enables" copyright infringement, which��is a less onerous burden to meet for the copyright holder than that of "specific knowledge" of copyright infringement under the��DMCA.����On the other hand, the "enabler provision" under the��CMA��is being for encouraging innovation in digital products from the copyright holder's perspective.����Barry Sookman argues that these new amendments, which are in line with WIPO Treaties standards, will allow Canada to become a bigger player in the twenty-first century by expanding legal protection for developers and copyright holders. ��Looking forward, as the digital and legal-scapes develop and expand, the Canadian Federal Court may find a homegrown��Viacom v Youtube��on its docket soon rather than later.

Ying Cheng is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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Less than a month after announcing its foray into , Google’s YouTube has made another significant announcement by offering users the ability to license their work using . Google is as a way to foster creativity and sharing among its users and is already working with notable organizations such as , , and to create a substantial Creative Commons library for users to experiment with.

is a non-profit organization which operates under the premise of promoting universal access to information through the internet. The organization was founded in 2001 and has spent the past decade working with copyright experts from around the world in order to develop to facilitate this vision. The customizable design of Creative Commons licences enables users to choose the amount of rights they wish to retain instead of operating under the default “all rights reserved” setting traditionally imposed through copyright law. This “some rights reserved” approach is seen by the organization as a way to bridge the gap between the reality of the internet and traditional copyright laws.

Another unique element of the Creative Commons licence is that each licence to increase its effectiveness. First, there is the traditional “Legal Code” layer, followed by a “Human Readable” and a “Machine Readable” layer. These additional “layers” allow lay people to understand the important components of a licence while also providing software and search engines with the ability to recognize the licence. By providing simplicity and ease of use, the licences are an effective way to give the average user more control over their content.

Under the new system, YouTube users will now be to license their work under the when using the . With this licence, other users will be able to remix and share the work, as well as make commercial use of the work, so long as attribution is given to the owner. While Creative Commons typically allows for licensors to choose from a variety of license options, YouTube currently only offers one choice.

The CC-BY licence is one of the most accommodating versions available and is as a way for YouTube to ease the incessant regarding copyright violations on its site. With now uploaded to the site every minute and the majority being user generated, YouTube is somewhat of a cesspool for copyright violation. The sheer volume of users and content has made copyright enforcement difficult.�� While YouTube has taken steps to and these rights, an effective solution remains elusive. The integration of Creative Commons licensing should help encourage users to respect copyright by raising awareness and providing viable alternatives to the internet cultural norm of misappropriating content.

Only time will tell if YouTube’s adoption of the Creative Commons framework will be embraced by enough users to alter perceptions regarding the ownership and sharing of content on the internet or if it will simply amount to another drop in the bucket of copyright law.

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