Thursday, April 30, 2020

Is Sony abusing the DMCA takedown system with respect to "Last of Us"?

Here’s another story about copyright. “Is Sony Using the DMCA to Muzzle ‘Last of Us’ Leaks?”  Short title is “Sony: Abusing the Law?

Sony, remember, owns Columbia Pictures and was the victim of North Korea’s 2014 hack.

Several issues.  One is takedown notices of “discussion of leaks” from the “plot” of the game "Last of Us" (as if the game were an interactive animated movie where the user could choose the ending – Netflix has already experimented with that idea). (A few high profile sites like Variety have been sued for disclosing the leaks.  There is a separate area of law regarding non-compete and non-disclosure for employees.  Sometimes it may be "misappropriation" for a journalist to report a leaked trade secret (Justia).  There have been questions as to whether amateur bloggers can claim "reporters privilege or, conversely, be liable for misappropriation in cases like this;  details will have to be explored at another time.)

Hoeg Law points out that this gets around “fair use” – but then in Europe, for example, after the Copyright Directive, maybe Fair Use doesn’t exist.  This is leading to YouTube “copyright strikes” and “copyright school”, but that would not even be correct legally.

Hoeg points out that the DMCA safe harbor takedown can lead to a copyright strike even if the material is not legally infringing in US law.

I’ve wondered about movie review blogs where the blogger discusses “the ending”.  Arguably (at least prior to Covid) that could have discouraged ticket sales. Now a lot of the films I review are documentaries (where the historical ending is known) or short films.  Some of them may be older films where (if like a Hitchcock mystery, say “Vertigo”) the ending is known. I’ve never had a complaint, but maybe there is always a first time. I have never felt deterred from seeing a movie if I "know the ending" because my own psychological reaction to suspense is more individualized than most people's (my "schizoid" personality?) 
At 11:30 or so Hoeg discusses that a video’s or blog post’s discussion of major plot points or ideas is not a violation of copyright as the law is written.

Hoeg points out that bogus takedowns don’t risk “loser pays” unless Youtube or the original owner “knowlingly” violates the law (at about 18:30).

Hoeg emphasize that some of the takedowns are on material that is not copyrighted.
Electronic Frontier Foundation has often made these points in the past. 
There is another problem that has surfaced: as David Pakman has often said, other major media companies have used third parties to issue bogus DMCA takedowns of his own commentaries (on Youtube or Twitch) to get rid of low-cost competition.
At least there is some non-covid news that is important to report.

Update: May 1

Ryan Kinel describes his own copyright strikes for merely "talking about" the Sony material. 

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