Samsung Sets Its Reputation on Fire with Bogus DMCA Takedown Notices(eff.org)
eff.org
Samsung Sets Its Reputation on Fire with Bogus DMCA Takedown Notices
https://www.eff.org/deeplinks/2016/10/samsung-sets-its-reputation-fire-bogus-dmca-takedown-notices
9 comments
While what they ended up doing is definitely worse, I wouldn't see them "taking it lightly" as natural too. After all, they've put the life of many in danger.
"Hey we messed up big time, here's the cause, here are the measures we took to prevent such things happening again. We also kindly ask everyone to consider the sensitivity of the issue regarding the affected customers" could be a good start.
"Hey we messed up big time, here's the cause, here are the measures we took to prevent such things happening again. We also kindly ask everyone to consider the sensitivity of the issue regarding the affected customers" could be a good start.
Yes, and the way to do that is to let free speech be, and completely ignore the GTA/Samsung parody video.
Separately, IMO it's very much Streisand Effect here, as there's no way I'd've seen the GTA video without the takedown notice.
Separately, IMO it's very much Streisand Effect here, as there's no way I'd've seen the GTA video without the takedown notice.
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It's quite likely that this was done on behalf of Samsung by some IP/Brand Management company they have on their payroll that did this quite likely without consulting with Samsung PR/ExecMgmt at all.
Then the firm should be fired and blackballed for not have the sense that this was a special case that required upstream consultation.
And the PR people in Samsung ... well, I'm not even sure they're having much input into what the company has done, because the whole handling of this has been horrible. They've suffered a terrible loss in brand equity, and it takes a lot longer to recover that than mere dollars.
And the PR people in Samsung ... well, I'm not even sure they're having much input into what the company has done, because the whole handling of this has been horrible. They've suffered a terrible loss in brand equity, and it takes a lot longer to recover that than mere dollars.
An accident that occurs just as planned, perhaps?
Sure, sometimes it's also good to be honest from the get go. They totally blew over the breach of the SamsungPay division acting as if nothing happened yet data was removed from the network that they couldn't account for. Only to say, it was a small issue. Well I can tell you it was not.
As far as I'm concerned the Brand should "burn" for the way they've handled this and their customers.
As far as I'm concerned the Brand should "burn" for the way they've handled this and their customers.
>DMCA abuse flourishes because, in practice, companies that send improper notices don’t face sufficiently serious consequences.
Is there any consequence of sending fake, improper, revenge... DCMA notices? Because, every discussion about DCMA so far leads me to believe that there's absolutely no down side to this practice.
Is there any consequence of sending fake, improper, revenge... DCMA notices? Because, every discussion about DCMA so far leads me to believe that there's absolutely no down side to this practice.
Technically, yes. Submitters swear that their requests are valid under penalty of perjury.
Effectively, no, for 2 reasons:
1. They must be prosecuted and lose for the penalty to have an effect. Courts have historically been lax in applying this. After all, a big content company probably has to file thousands or millions of requests, and everyone (and especially automated processes) make mistakes, right?
2. EDIT - this is incorrect, see crilet2's post here: https://news.ycombinator.com/item?id=12805060
They're typically not submitting DMCA requests. YouTube's complaint system and automated content ID systems are not technically DMCA requests, they're just easier for Google and for submitters: https://support.google.com/youtube/answer/2807622?hl=en. Misuse can result in suspension of the YouTube account.
Effectively, no, for 2 reasons:
1. They must be prosecuted and lose for the penalty to have an effect. Courts have historically been lax in applying this. After all, a big content company probably has to file thousands or millions of requests, and everyone (and especially automated processes) make mistakes, right?
2. EDIT - this is incorrect, see crilet2's post here: https://news.ycombinator.com/item?id=12805060
They're typically not submitting DMCA requests. YouTube's complaint system and automated content ID systems are not technically DMCA requests, they're just easier for Google and for submitters: https://support.google.com/youtube/answer/2807622?hl=en. Misuse can result in suspension of the YouTube account.
Technically, yes. Submitters swear that their requests are valid under penalty of perjury.
Nah. Perjury only applies to the part where they need to swear that the sender is authorized to act on behalf of the allegedly infringed work.
https://www.congress.gov/bill/105th-congress/house-bill/2281...
Nah. Perjury only applies to the part where they need to swear that the sender is authorized to act on behalf of the allegedly infringed work.
``(vi) 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 infringed.
https://www.congress.gov/bill/105th-congress/house-bill/2281...
It's a really tough problem to solve for everyone.
You don't want to introduce a fee to file takedown notices, as then the people the law was arguably meant to protect (the small content creators) will not be able to make requests as easily, and you don't want to just allow people to abuse the system and use it like a "i want this gone" button.
You don't want to introduce a fee to file takedown notices, as then the people the law was arguably meant to protect (the small content creators) will not be able to make requests as easily, and you don't want to just allow people to abuse the system and use it like a "i want this gone" button.
The system is completely abused currently. Far better would be a small fee, or even a mostly manual hoop to jump through for demonstrating ownership & infringement. This scales properly, so the small producers aren't hurt much by it and the bit content owners can't run roughshod over everyone with a few scripts.
But the "scaling" here isn't only based on the number of things you create, but also the number of people that try to violate the copyright, and the number of times they do it.
If I make one thing, and it costs $10 to file a takedown, then the "copyright violators" can bleed me dry by just re-uploading it hundreds or thousands of times.
It's already a massive time sink to make the takedowns, in my opinion adding a monetary cost will just swing the pendulum the complete opposite direction.
If I make one thing, and it costs $10 to file a takedown, then the "copyright violators" can bleed me dry by just re-uploading it hundreds or thousands of times.
It's already a massive time sink to make the takedowns, in my opinion adding a monetary cost will just swing the pendulum the complete opposite direction.
I was unclear - I think the cost should be put on demonstrating ownership, but given that takedowns could be easier to manage so long as fair use is protected.
You could have no fee for the first X intellectual properties you defend or the first Y DMCA requests you file every year (whichever is lower), and then introduce fees when you go past the limit.
It feels odd to price a public legal request like it were a commercial service, but it might be the most fair solution.
It feels odd to price a public legal request like it were a commercial service, but it might be the most fair solution.
Just like the patent system, the small beneficiaries are used as a political human shield for a system that overwhelmingly benefits the large incumbents. Often against other small creators.
I'm so glad that we have a congress that makes laws specifically to protect small content creators (at the behest of the largest corporations and their lobbies).
it's DMCA, not DCMA.
Every time a big company tries to strong arm an individual to take down something, esp something that is already viral in nature, the end result is it ends up getting more views and news. Yet, these companies never learn. Also in this day and age I think it's impossible to take a video down (s01e01 black mirror anyone?)
On the other hand, a detailed breakdown of what went wrong including details of the fuckup, with black and white details on what was fact and what is fiction (like Tesla's response to BBC) and the measure the company is taking to fix it generally helps to gain the trust back quickly.
On the other hand, a detailed breakdown of what went wrong including details of the fuckup, with black and white details on what was fact and what is fiction (like Tesla's response to BBC) and the measure the company is taking to fix it generally helps to gain the trust back quickly.
I don't believe that the Streisand effect is a common outcome, not even for especially ridiculous cases.
While I'm always behind the EFF's stance on copyright and DMCA issues, I'm not sure whether this was a "DMCA takedown request" or direct access to YouTube's content ID management interface thingy (which has nothing to do with DMCA...)
If the latter, EFF is being a bit disingenuous claiming that Samsung has abused the DMCA here. It'd be yet another case of YT simply handing too much power to those with access to Content ID.
If the latter, EFF is being a bit disingenuous claiming that Samsung has abused the DMCA here. It'd be yet another case of YT simply handing too much power to those with access to Content ID.
It has been restored. Here is the email chain:
https://imgur.com/a/teTNN
EDIT: The following paragraph is incorrect, I was misinformed - see the child post.
Also, this was almost certainly a YouTube takedown request, not a DMCA request. YouTube is free to take down whatever it likes, and Samsung is free to request a takedown for whatever it likes - whether it's a valid copyright claim or not. It's only when Samsung brings it through the courts rather than through YouTube's system that it becomes a DMCA request with legal requirements. Not that censorship or siding with certain companies is good for YouTube's reputation, or that submitting legally-meaningless take down requests is good for Samsung's, but it's important to distinguish the DMCA from simple requests.
https://imgur.com/a/teTNN
EDIT: The following paragraph is incorrect, I was misinformed - see the child post.
Also, this was almost certainly a YouTube takedown request, not a DMCA request. YouTube is free to take down whatever it likes, and Samsung is free to request a takedown for whatever it likes - whether it's a valid copyright claim or not. It's only when Samsung brings it through the courts rather than through YouTube's system that it becomes a DMCA request with legal requirements. Not that censorship or siding with certain companies is good for YouTube's reputation, or that submitting legally-meaningless take down requests is good for Samsung's, but it's important to distinguish the DMCA from simple requests.
You're spreading misinformation.
The DMCA requires carriers like Youtube to:
>[A service provider shall not be liable if] (E) if the person described in paragraph (1)(A) makes that material available online without the authorization of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access to, the material
https://www.law.cornell.edu/uscode/text/17/512
The Youtube Copyright Strikes system being employed here (which is NOT the ContentID system) IS the DMCA Safe-Harbor compliant take-down system which was designed, developed and used exclusively because of the DMCA law!
The DMCA law does not provide for a government based form or system for takedowns, rather, it places the onus of a takedown system on the safe harbor who wishes to be safe.
This is DMCA request! You just apparently do not realize that the DMCA makes providers like Youtube create their own in-house DMCA take-down mechanisms.
The DMCA requires carriers like Youtube to:
>[A service provider shall not be liable if] (E) if the person described in paragraph (1)(A) makes that material available online without the authorization of the copyright owner of the material, the service provider responds expeditiously to remove, or disable access to, the material
https://www.law.cornell.edu/uscode/text/17/512
The Youtube Copyright Strikes system being employed here (which is NOT the ContentID system) IS the DMCA Safe-Harbor compliant take-down system which was designed, developed and used exclusively because of the DMCA law!
The DMCA law does not provide for a government based form or system for takedowns, rather, it places the onus of a takedown system on the safe harbor who wishes to be safe.
This is DMCA request! You just apparently do not realize that the DMCA makes providers like Youtube create their own in-house DMCA take-down mechanisms.
I wouldn't want to spread misinformation! It appears you are correct:
> (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
> (vi) 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 infringed.
So where in this system is the good faith belief actually evaluated?
> (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
> (vi) 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 infringed.
So where in this system is the good faith belief actually evaluated?
The issue is that the burden of validation is so great that the government demanded Google do it themselves, and Google realized the burden is so great that they basically treat all complaints as valid and in good faith, because the effort to actually hand validate each request would make it one of the most labor intensive divisions in all of Alphabet.
In terms of liability, Google would rather prematurely remove content (no penalty) than accidentally leave up covered material (violation of safe harbor, could be used by Verizon et al to indicate in another lawsuit that the entire system is flawed, thus safe harbor protection doesn't apply at all, and Google can be directly sued for violation of copyright, something Verizon would love!)
In terms of liability, Google would rather prematurely remove content (no penalty) than accidentally leave up covered material (violation of safe harbor, could be used by Verizon et al to indicate in another lawsuit that the entire system is flawed, thus safe harbor protection doesn't apply at all, and Google can be directly sued for violation of copyright, something Verizon would love!)
Good faith is assumed if the complainant is a large corporation. It is only evaluated if the target is owned by a large corporation.
Streisand effect will ensure Samsung is remembered for their exploding phones, just as Sony is remembered for their root-kit.
At best it doesn't become worse, but I can see this suddenly popping up in other games as there is a good incentive - guaranteed viral video.
At best it doesn't become worse, but I can see this suddenly popping up in other games as there is a good incentive - guaranteed viral video.
The non-technical users are oblivious on Sony's rootkit fiasco and other DRM-related insults against customers (remember OtherOS for PS3?).
On the other hand, Samsung's Note brand is pretty much ruined and Samsung phone/tablet division will have hard time recovering from this.
The other day I was on a flight and we were warned to report any Samsung Note 7 device on board as they pose danger for airplane safety. This was after we went through security control where such device would be detected and dealt with. This isn't going away anytime soon.
On the other hand, Samsung's Note brand is pretty much ruined and Samsung phone/tablet division will have hard time recovering from this.
The other day I was on a flight and we were warned to report any Samsung Note 7 device on board as they pose danger for airplane safety. This was after we went through security control where such device would be detected and dealt with. This isn't going away anytime soon.
I'd say this would be a textbook example of a "bad faith" takedown request. Surely any competent legal team would know that satire covers fair use, and they decided to proceed with it anyway.
EFF says there's no viable copyright claim. If there's not copyright claim, there's no "fair use" to consider - the creator is simply free to continue doing what they do; in this case, making fun of Samsung's exploding phone troubles.
Satire is not fair use. Parody is fair use. There is a difference, and Goldiblox vs. The Beastie Boys was a very clear situation where the former thought Satire was protected and the outlook in the court system was not favorable to them.
Except nowhere in this or the linked articles does it actually state this was a DMCA rather than a Content-ID takedown. I'd expect the EFF to know the difference.
Content ID is automatic and relies on matching fingerprints of existing video. If you upload something that's known to be copyrighted and where the fingerprint is already (or subsequently becomes) known, content ID is what monetises or blocks the video. You don't get copyright strikes for content ID hits, and such a hit is not a "takedown" - that term refers to cases where a copyright holder notifies youtube that a specific video infringes their rights. THAT is when you get a copyright strike.
You have, of course, the ability to appeal - basically saying "Samsung are full of shit, put my video back and tell them to sue me if they don't like it" and that's exactly what happened here.
You have, of course, the ability to appeal - basically saying "Samsung are full of shit, put my video back and tell them to sue me if they don't like it" and that's exactly what happened here.
Ah - my fault - I thought it was the general term for the private agreements that let certain companies take down stuff at will.
The EFF has trouble with understanding Copyright on a regular basis. No, really, I've been following them long enough (partially in agreement, partially out of balance against the content industry) to know they take a very extreme position - an outlier, almost a FUD type position - and work backwards to show how whatever instance they decry at the time is a terrible wrong, an indicator of the downfall of society, blah blah blah. They're habitual at this and it's pretty annoying.
Commentary is protected speech. Parody is protected speech. Satire is not protected speech.
As noted by delinka, if Samsung has a private agreement with YouTube regarding sending notices to take down infringing material that is outside of the "official" DMCA channels (ex ContentID), then that's bothersome but not necessarily a point of legal recourse. So, if Samsung points to a video and tells YouTube that the video violates YouTube's ToS based on point X or Y, then YouTube and Samsung can effectively side-step DMCA. That leaves the EFF with a handful of air in this case.
The EFF has a worthwhile mission, but time and again I think they get a bit hysterical and disingenuous, which, to me, only backfires in the long run. YMMV.
Commentary is protected speech. Parody is protected speech. Satire is not protected speech.
As noted by delinka, if Samsung has a private agreement with YouTube regarding sending notices to take down infringing material that is outside of the "official" DMCA channels (ex ContentID), then that's bothersome but not necessarily a point of legal recourse. So, if Samsung points to a video and tells YouTube that the video violates YouTube's ToS based on point X or Y, then YouTube and Samsung can effectively side-step DMCA. That leaves the EFF with a handful of air in this case.
The EFF has a worthwhile mission, but time and again I think they get a bit hysterical and disingenuous, which, to me, only backfires in the long run. YMMV.
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This is Parody due to the extreme nature of the explosions not Satire. So, while Satire is not protected* this is clearly not Satire making that point irrelevant.
*Ed: I mean Satire is first amendment speech, but that does not make it fair use.
*Ed: I mean Satire is first amendment speech, but that does not make it fair use.
No, it's probably commentary, but if you'd like to explain to me how by definition it's a Parody (based on the Four Factor test) then by all means I'd like to read it. Otherwise you're just asserting a point without any grounding, re: Fair Use. As in, what your opinion of Fair Use is may not be aligned with the law so let's have a look at that.
The EFF is still a habitual abuser of language relating to Copyright, and I suppose that ticks off some people, but I fucking hate propaganda and they're guilty of it on a routine basis.
The EFF is still a habitual abuser of language relating to Copyright, and I suppose that ticks off some people, but I fucking hate propaganda and they're guilty of it on a routine basis.
"while a parody targets and mimics the original work to make its point, a satire uses the work to criticize something else, and therefore requires justification for the very act of borrowing" http://apps.americanbar.org/litigation/committees/intellectu...
Clearly, this mod is making fun of the Nexus phone. Which then breaks the connection between Sony and the Videos. You don't have any rights to uses of a fair use derivative work.
Clearly, this mod is making fun of the Nexus phone. Which then breaks the connection between Sony and the Videos. You don't have any rights to uses of a fair use derivative work.
So if it was simply a video making of the phone or its likeness (a S7 by the way, not Nexus) by mocking its technical prowess and then showing an explosion as a "feature, not a bug" then sure it'd be parody. Self-referential. Using the S7 as a detonator? Much more like commentary, though it's toeing close to satire in that the notion of the reference (comedic/etc) is not targeted at the phone itself but in an alternate application.
Like taking a tampon and shoving it up a person's nose as a way to stop bleeding from cocaine abuse and making an ad about it - that's not direct parody, and it's a lot closer to what's going on than some would like to acknowledge.
I do know very well there's a lot of over-reach when it comes to Fair Use but picking bad examples, like the EFF loves to do and then jack up with all sorts of FUD end of the world rhetoric, doesn't help.
Like taking a tampon and shoving it up a person's nose as a way to stop bleeding from cocaine abuse and making an ad about it - that's not direct parody, and it's a lot closer to what's going on than some would like to acknowledge.
I do know very well there's a lot of over-reach when it comes to Fair Use but picking bad examples, like the EFF loves to do and then jack up with all sorts of FUD end of the world rhetoric, doesn't help.
It's not using the phone as a detonator it's using the phone as the bomb. Here, they put the video back up: https://www.youtube.com/watch?v=_GhODn4FRoE
You are physically throwing these phones and they can then detonate like a bomb or on impact like a grenade. At one point they look down and several phones are on the ground, later on these phones blow up. It would be like SNL making a fake add about an updated Ford Pinto where they added 10 kg of C4 thus preventing it from catching fire. (warning cars now detonate.)
Importantly, replacing the phone with an iPhone would not work as they are making fun of the defect. Thus, using the source material is directly required. AKA if you want to make fun of British people then using Sherlock homes is being lazy, but if you want to make fun of Sherlock homes you kind of need to reference him.
You are physically throwing these phones and they can then detonate like a bomb or on impact like a grenade. At one point they look down and several phones are on the ground, later on these phones blow up. It would be like SNL making a fake add about an updated Ford Pinto where they added 10 kg of C4 thus preventing it from catching fire. (warning cars now detonate.)
Importantly, replacing the phone with an iPhone would not work as they are making fun of the defect. Thus, using the source material is directly required. AKA if you want to make fun of British people then using Sherlock homes is being lazy, but if you want to make fun of Sherlock homes you kind of need to reference him.
Saying "this phone sometimes explodes so it's a bomb now" isn't a parodic statement, can you follow? It's not following the protocol to be self-referential to make a point. It's just simply a "what if" manipulation of the existence of the item and a characteristic. Oh the S7 is a grenade now! That's satire, not parody. Not protected by Fair Use in the big picture.
Let me break it down more simplistically: If the GTA mod included the S7, and it could be used as a phone as intended, but the phone would blow up and kill your character at random, then that's a self-referencing S7 parody implementation. It's a really tedious differentiation, I know, I get it, but it's important because of how often the parody / satire / commentary terms sort of overlap in everyday chats but genuinely have distinct parameters, especially in Fair Use cases.
Let me break it down more simplistically: If the GTA mod included the S7, and it could be used as a phone as intended, but the phone would blow up and kill your character at random, then that's a self-referencing S7 parody implementation. It's a really tedious differentiation, I know, I get it, but it's important because of how often the parody / satire / commentary terms sort of overlap in everyday chats but genuinely have distinct parameters, especially in Fair Use cases.
These phones can't literally be used as a grenade.
Parody "an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect." "produce a humorously exaggerated imitation of."
On the other hand "satire uses the work to criticize something else"
So, simply having the phone fail in the same way as a real phone might not be Parody. Randomly cutting to a nuclear detonation would be.
Again: These phones can't literally be used as a grenade.
PS: Also, the line has nothing to do with how good a parody is. Bad art is still protected.
Parody "an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect." "produce a humorously exaggerated imitation of."
On the other hand "satire uses the work to criticize something else"
So, simply having the phone fail in the same way as a real phone might not be Parody. Randomly cutting to a nuclear detonation would be.
Again: These phones can't literally be used as a grenade.
PS: Also, the line has nothing to do with how good a parody is. Bad art is still protected.
Sometimes it's a good thing to take a step back and laugh at yourself. It's a humbling experience and may even open opportunities to show your customer base who you are in moments of weakness.