Filmora uses DMCA to attack YouTuber complaining about license changes [video]
youtube.com
youtube.com
A very "I'm sorry you were offended" response.
https://twitter.com/Filmora_Editor/status/160918041318809600...
> 6. Under what circumstances can I upgrade to Filmora 12 for free?
> - You are a lifetime user of Filmora 9 or the earlier version.
> - You are a Filmora subscription user.
> - You purchased the Filmora 11 perpetual plan within 90 days.
> - You are a business/education/team perpetual license user.
The current version of the same page says:
> 6. Under what circumstances can I upgrade to Filmora 12 for free?
> - You are a Filmora subscription user.
> - You purchased the Filmora 11 perpetual plan within 90 days before Filmora 12's official launch (Purchased from September 14, 2022 to December 11, 2022)
Obviously that page doesn't form part of the initial licence, but it doesn't exactly make the decision look any better.
[1] https://web.archive.org/web/20221209023321/https://filmora.w...
Their use of the word "generously" is egregiously wrong there, since the thing they're offering you is something that they already owed you anyway! That deal is basically "we're only going to give you a subset of what we originally promised you when you bought your license, and we're not going to give you anything else in return to make up for it."
If they are having problems caused by fans who are too attached to their product this is a brilliant solution.
1. The CCB is completely voluntary, so in most cases a determined troll in unlikely to submit to their jurisdiction.
2. In most cases when someone speaks of a DMCA takedown w/r/t Youtube there is no actual DMCA claim involved, but merely a claim made using the Content ID system, which does not involve making a formal complaint under the DMCA.
3. Fraudulent takedowns can subject you to claims for damages pursuant to 17 U.S.C. § 512, but of course that never happens because the only people targeted are those who don't have the ability to fight back.
- participation is _voluntary_ for both claimant and respondent
- monetary damages are capped at $15k per work, for a total of $30K for 2 works
- bad-faith claimants may be ordered to pay the other party’s costs up to $5K/2.5K
- there's a limit on the number of claims any party can file per year
- CCB determinations are open to public view, but not precedential for court
- parties cannot file the same claim in federal court if they went through the CCB process. (sounds like ADR)
- it's designed to be navigable by non-lawyers and, instead of a judge and/or jury, the case is heard by a panel of three officers and the entire process is held online
An 8/2022 article "The First 100 Cases at the Copyright Claims Board" https://www.plagiarismtoday.com/2022/08/18/the-first-100-cas...
> The cap likely will encourage aggressive copyright enforcers to stay in federal court and skip the CCB altogether...
> Based on this analysis, the caps (10 proceedings/year for copyright owners or 40/yr for law firms) seem to deter many potential CCB users. If the plaintiffs’ lawyers aren’t steering clients towards it, and if both the firms and copyright owners see more value in consolidating cases in federal court, the CCB will most likely cater to the copyright owner who doesn’t have a lawyer and views an occasional small claims proceeding as its best hope; and possibly the rare circumstances where a CCB proceeding will be more lucrative than a federal court proceeding (like where the owner has an unregistered copyright and would prefer the statutory damages available only in the CCB). If these become the main CCB use cases, I imagine there will be dozens of CCB cases in a year, not thousands or even hundreds, and the CCB will not be an especially important adjudicatory venue.
If I claim to be Disney and issue a DMCA takedown of somebody's video, that's perjury, because Disney did not authorize me to do that.
If Disney's lawyers claim your video about how much you enjoy yoga is infringing on their animated feature film "Snow White" that's not perjury even though the claim is wrong and the worst that'll happen is if it went to court it gets dismissed and maybe a Disney lawyer gets slapped on the wrist for wasting a judge's time with this nonsense.
DMCA claims aren’t made to a court, so perjury doesn’t make sense. If one could prove intent, perhaps fraud?
I wonder if wire-fraud applies because IIRC the DMCA claimant gets the video's ad revenue. You have an aspect of obtaining money, it happens over the wire, so...maybe?
YouTube built its own parallel claims system that does claim revenue, though they did recently change it to hold revenue in escrow while a dispute is processed. The implicit goal of this system is to take as many claims as possible out of the DMCA 512 system and into YouTube's hands, where they can then negotiate a different monetization agreement behind the uploader's back.
It's important to note that the video stays online instead of being removed as required under DMCA 512. This is of little consolation to the creator, of course, if they were looking to monetize the video.
The fact this provision is not regularly enforced is because it would be expensive to do so, often exceeding the damages in the first place. However I wish EFF and other organizations would start pushing back against companies like this using 512 (f) and get some case law and actual damages including legal fees against these copyright abusers
It should also support misconduct filings with the Bar for the attorneys that filed the requests.
This actually can be flipped on YouTubers' heads, too. If you counter-notify something that you know is infringing, you can be sued for 512(f) misrepresentation. So, say if you use a song in your video you don't own, you get DMCA'd, and you counternotify to get your video back up; you can now be countersued.
But even if you do have a genuine 512(f) case, you have another problem: it is not worth your while in order to sue. For regular copyright cases, you have a thing called statutory damages, which can go up to $150,000 per infringement if the infringer was "willful" (i.e. they basically said 'fuck you'). This is in contrast to "actual damages", which is where you prove to a judge that you lost $X or that the infringer gained $Y. It's extremely difficult to prove[0] actual damages, which is why we have statutory damages. Because without the guarantee of a large damage award, even an open-and-shut case against a wealthy target becomes uneconomic to prosecute.
In 512(f) claims, you only get actual damages plus fee shifting[1]. At least you can hope to recoup costs... except that that's not how fee shifting works. You don't just send the defendant your attorney's bill. The judge goes through that bill, picks out the "lodestar amount" to shift to the defendant, and you pay the rest.
Oh, and all of that is assuming that both you and your defendant are financially solvent, properly capitalized entities that can pay things. You can't sue a homeless man[2].
[0] You know the whole "lost sale argument", and how we love to poke holes in it? Yeah...
[1] Which, BTW, is also so un-American a concept that lawyers literally call it the French Rule. Or the British Rule. Either way, in most other countries the loser pays the winner's attorney's fees. In the US you only get fee shifting in copyright cases.
[2] Which, if you believe James Gosling, is the reason why he didn't completely kill GNU Emacs.
Also, you totally can sue a homeless man. It's just that you can't afford to.
Noting for purpose of precision that the ad revenue instead of takedown for copyright claimants thing is a Youtube policy unrelated to the DMCA rules, yes, the fact that the false claimant gets paid when Youtube accepts the claim, and is aware of this, makes it quite possible for such a claim to be a “scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises” within the scope of the prohibition of the federal wire fraud statute, 18 USC § 1343, the way a DMCA claim to a provider not offering such compensation to the claimant would not be.
For an organization beyond a single entity doing this as a pattern, this also potentially has civil and criminal RICO implications, as wire fraud is a RICO predicate offense.
(Not a lawyer, not your lawyer, and if I was either of those things I wouldn’t be giving you legal advice via public comments on HN.)
> A statement that the information in the notification is accurate, and under penalty of *perjury*, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly in-fringed.
Though this may not refer to the falsehood here. See stackexchange (where I copy/pasted the above from): https://law.stackexchange.com/questions/51541/has-anyone-bee...
(It may be somewhat difficult to argue that the use of signage as specified in the contract and provided for this very purpose by the claimant should be infringing.)
[Disclaimer: not a lawyer]
From the DMCA https://www.copyright.gov/512/:
If the user believes that the material was removed as a result of mistake or misidentification of the material, the user may submit a counter-notice requesting the reinstatement of the material. To be effective, a counter-notice must contain substantially the following information:
(i) a physical or electronic signature of the user;
(ii) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(iii) a statement under penalty of perjury that the user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(iv) the user’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
A sample counter-notice is located under the “Notice-and-Takedown Resources” heading.
Following receipt of a compliant counter-notice, the online service provider must restore access to the material after no less than ten and no more than fourteen business days, unless the original notice sender informs the service provider that it has filed a court action against the user.
The notice and counter-notice steps can be visualized as follows:
Notice — Rightsholder sends notice to online service provider regarding infringing material that appears on the online service provider’s system.
Remove Access to Material — Online service provider must act expeditiously to remove or disable access to the infringing material.
Notify User — Online service provider must then promptly notify the user that originally uploaded the material that it has been removed.
Counter-notice — User may submit a counter-notice requesting the reinstatement of the material, if the user believes the removal was due to a mistake or misidentification.
Restore Access or Initiate Court Action — Online service provider must restore access to the material after no less than 10 and no more than 14 business days, unless the original notice sender informs the service provider that it has filed a court action against the user.
Edit: the single case I found was against DigitalRev back in 2013. Either that was a one off mistake, or Google betrayed me. Do your own research.
> GoPro’s poor attempt at taking down a (mostly positive) review of the GoPro Hero 3 erupted into a deluge of unwanted bad press for the camera company. The fact that they Streisanded themselves into an even worse position, and were pressured into giving a public response shortly thereafter, has not scared other companies away from abusing similar tactics.
> Unhappy with Lennie’s review, Rotolight decided to file a DMCA takedown notice to Vimeo claiming “the title and tags for the Video, did infringe our trademark.” The video was then taken down by Vimeo, which at the time only had about 150 total views. After Lennie took to the Internet exposing the DMCA notice in a blog post, the takedown went viral across tech sites and copyright blogs, unanimously shaming Rotolight’s blatant abuse of the DMCA.
> Rotolight, like GoPro, quickly issued an apology for their baseless claims of copyright infringement. In an almost identical series of events, both companies were caught red-handed trying to get away with suppressing negative criticism with DMCA notices they had to have known had no basis whatsoever. Both companies, were then rightfully shamed into publicly retracting their copyright claims.
Large financial and legal repercussions are required here. The balance of power is way to far one sided.
The best course of action for them would have been to just ignore it, their continued engagement keeps it in the news and keeps expanding the Audience. I had never heard of this company before, however now multiple higher profile tech personalities have commented on it, and the more they double down and blame the consumer the wider the story will get
https://filmora.wondershare.com/youtube/youtube-copyright-cl...
/s