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Back in May, we reported on how YouTube was beta testing Copyright Match, a new tool that made Content ID-like technology available to all users.

Well, the beta testing appears to have been successful as Yesterday YouTube announced on its Creator Blog that it was rolling out the feature to all users, starting with those with more than 100,000 subscribers and then to smaller channels later.

However, the announcement also contained two very important new pieces of information about Copyright Match, neither of them good news if you’re hoping for a useful and widely-available service.

First, Copyright Match will only be available to users that are already members of YouTube’s Partner Program, which limits participation to channels above a certain size. This means that new channels or small channels will not be able to participate in Copyright Match.

Second, Copyright Match will only work with full and complete matches not clips or partial videos. Though the post says it will work on matches that are “the same or very similar” it also makes it clear that Copyright Match “is intended to find full re-uploads”.

These changes greatly limit the usefulness of Copyright Match, both as an anti-spam tool and as a copyright tool, but it still may still be a first step for YouTube in dealing with its spam and misuse issues if YouTube is able to expand it over time.

The Idea Behind Copyright Match

Since 2007, YouTube has had Content ID, an automated tool for detecting uploaded videos that contained video and/or audio content from unauthorized sources.

The tool has been heavily used by TV, movie and music studios to detect when unauthorized content is uploaded to YouTube in an effort to either block the content or monetize it for its original creator.

Though Content ID has proved useful for YouTube, currently handling more than 98% of all of its copyright disputes, it’s also been a source of controversy with many of its users complaining of false matches and fair use issues.

For creators wanting to protect their work, the big limitation has been the ability to get your content into YouTube’s Content ID system. Nowhere has this been more difficult than for YouTubers themselves who, despite often being major producers reaching millions of people, have generally not been able to protect their videos with Content ID.

Copyright Match brings a stripped down version of Content ID to everyday YouTubers. The system, like Content ID, detects when user content is re-uploaded onto the site and gives the original uploader a choice of action. They can either do nothing, contact the channel directly or remove it.

But, where Content ID is a proactive system (meaning it can stop infringing uploads before they go live), Copyright Match is reactive, only working on already-uploaded videos. Also, where Content ID matches are not part of the Digital Millennium Copyright Act notice-and-takedown process, Copyright Match removals appear to be. This means that videos removed through Copyright Match are not only subject to counternotices, but also to copyright strikes.

In short, Copyright Match brings Content ID’s technology to bear but only to aid in the finding of very specific infringements and to streamline the same removal process that YouTubers already had.

Copyright Match is not “Content ID for All” as it originally seemed to be and that may be its greatest strength and its biggest weakness.

The Limitations of Copyright Match

Many of the limitations of Copyright Match were made clear in the previous announcement, those limitations included:

  1. Inability to Monetize Unauthorized Content: Content ID lets rightsholders monetize unauthorized use of their material, Copyright Match only allows users to track or remove such videos.
  2. Complaints Handled Via DMCA: Content ID created a copyright process outside of the DMCA, Copyright Match requires DMCA notices.
  3. Reactive Instead of Proactive: Copyright Match only works on already-uploaded videos and cannot block infringing material from appearing.

While these limitations are significant, they also make a degree of sense. Giving millions of YouTubers, most of whom have little experience with copyright issues, access to a full version of Content ID is a recipe for chaos.

However, the new announcement presents two new limitations, both of which combine to hamstring Copyright Match’s ability to effectively address YouTube’s copyright and spam issues:

  1. Only Detects Full Re-uploads: Copyright Match will only spot when a video is re-uploaded to the site. This means that clips, edits or other partial uses of a video will not appear, regardless of how extensive they are.
  2. Limited to YouTube Partners: Copyright Match is only for members of YouTube’s Partner Program, meaning that smaller channels or channels that don’t wish to participate will be left out.

Copyright Match is clearly designed to address the ongoing issue of YouTubers, in particular spammy accounts, stealing content from other YouTubers. However, these two limitations make it very easy for such accounts to keep taking content.

Spammers or infringers simply have to either limit their lifting from smaller accounts or modify the video. Considering how we already see automated trickery in an attempt to fool Content ID, Copyright Match’s limitations make it likely these tactics will be effective, depending upon how well the matching works.

The other problem is that, while re-uploads are certainly an issue on YouTube, most of the major content controversies have centered around things like reaction videos, where users use either whole or significant portions of videos well outside the bounds fo fair use. Copyright Match will not likely address these cases, at least in its initial iteration.

If YouTube’s goal with Copyright Match is to reduce or stop spam/infringing channels, they can’t give bad actors easy ways to skirt the system. As Google has learned when fighting search engine spam, spammers are highly adaptive and will seize upon any means they can find to escape detection.

Unfortunately, even before its launch, Copyright Match has its bypasses built in and publicly visible. Copyright Match may improve the spam and infringement situation on YouTube, but it won’t fix it.

Bottom Line

When it’s launched, Copyright Match won’t be available to many YouTubers (including me), will only detect complete re-uploads and will still carry all of the original limitations we learned about in May.

While this is disappointing. the hope is that this is just the initial iteration of Copyright Match.

It makes sense to start out Copyright Match in a limited capacity. YouTube does have a re-upload problem, even if it hasn’t always been at the front of the coverage, and it’s the easiest to tackle since such videos are, except in rare cases, pretty clear copyright infringements.

This lets YouTube implement Copyright Match in a way that minimizes potential misuse, while still providing some usability. There will undoubtedly be a deluge of copyright notices as Copyright Match rolls out and this may simply be the lower-hanging fruit YouTube is choosing to tackle first.

Still, it would be nice if Copyright Match weren’t tied to its Partner Program, especially considering YouTube just raised the requirements and excluded many previous participants, and if Copyright Match detected modified infringements that are still egregious and obvious.

Copyright Match, as it is billed, will be of limited use. However, if it’s just a first step then it is a step in the right direction. It will be what YouTube does with Copyright Match after its launch that determines just how useful and important the system is.

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Plagiarism Today by Jonathan Bailey - 4h ago

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1: Appeals Court Won’t Rehear “Blurred Lines” Case

First off today, Eriq Gardner at The Hollywood Reporter Esquire reports that the estate of Marvin Gaye has prevailed once again over Robin Thicke and Pharrell Williams as the 9th Circuit Court of Appeals has declined to rehear the Blurred Lines case, representing a possible end to the long-running case.

The estate sued Thicke and Williams claiming that their song Blurred Lines was an infringement of the Marvin Gaye song Got to Give it Up. In 2015, the estate won a controversial jury verdict that awarded the estate a 50% royalty on future exploitation of the song as well as millions in damages.

Thicke and Williams had appealed to the 9th Circuit but were defeated when a three-judge panel ruled against them. They then requested an en banc hearing, which would have put the matter before all nine judges at the circuit. However, the Appeals Court has denied that request. Thicke and Williams can petition the Supreme Court but that court only hears a small fraction of the cases appealed to it.

2: Raunchy Seuss Parody ‘Who’s Holiday!’ Wins Appeal; Broadway Run Planned

Next up today, Greg Evans at Deadline Hollywood reports that playwright Matthew Lombardo has emerged victorious in his battle against the estate of Dr. Seuss over his raunchy parody of How the Grinch Stole Christmas.

The play, entitled Who’s Holiday, is a one-woman show featuring Cindy Lou Who, the young child from Dr. Seuss’ How the Grinch Stole Christmas, as an adult. In the play, she is a bawdy woman who discusses, sex, heavy drinking and other adult subjects. The Seuss estate sued, claiming that the play was a copyright and trademark infringement. The lawsuit led to the cancellation of a 2016 off-Broadway staging of the play and extensive litigation.

The district court tossed the case, saying that the play was parody and a protected fair use. The estate appealed to the 2nd Circuit Court of Appeals, which has now upheld that dismissal with a unanimous decision. According to the Appeals Court, Lombardo’s right to free expression outweighs the Seuss estate’s needs to protect its intellectual property. This (quite literally) sets the stage for a potential Broadway performance of the play, which may begin a limited run later this year.

3: Federal Judge Tosses Copyright Infringement Lawsuit Against ‘The Art of Fielding’ Author

Finally today, Colby Hamilton  at The New York Law Journal reports that a judge has tossed a lawsuit filed against author Chard Harbach saying that the two works involved were simply not similar enough to constitute a copyright infringement.

The lawsuit was filed author Charles Green who claimed that Harbach’s book The Art of Fielding was a copyright infringement of his book Bucky’s 9th. Both books focused on small college baseball teams and followed their struggles.

However, according to the judge, the similarities between the works were extremely limited and not protectable under copyright. The judge notes that, while the books have similar sports themes, the plot, characters and climaxes of the books are both different. As such the judge has dismissed the case though Green has promised to appeal the dismissal to the Second Circuit Court of Appeals.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

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The post 3 Count: 2 Appeals, 2 Denials appeared first on Plagiarism Today.

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Plagiarism Today by Jonathan Bailey - 4h ago

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1: Ending a Seven-Year Dispute, a US Court Rules That Artists Aren’t Entitled to Royalties for Artworks Resold at Auction

First off today, Eileen Kinsella at Artnet News reports that the Ninth Circuit Court of Appeals has ruled that the US Copyright Act preempts claims under the California Resale Royalties Act (CRRA), a California law that attempted to grant artists a 5% royalty when their work was resold at auction.

The ruling dismisses a class action lawsuit filed by a group of artists seeking to obtain royalty payments from various large auction houses as well as eBay. According to the ruling, federal copyright law overrules state law on this issue. This is because, in the Copyright Act of 1976, which took effect January 1, 1978, precluded any state copyright law outside of narrow exemptions (including pre-1972 sound recordings).

However, since the CRRA took effect on January 1, 1977, there’s a one-year window where paintings that were resold must pay royalties. However, any art resold either before or after that window is not eligible for royalties as the United States does not recognize droit de suite, which is a right to royalties when a painting is resold. That right is recognized in many other nations but not the United States, despite it being a signatory to the Berne Convention.

2: In World First, Danish Court Rules Stream-Ripping Site Illegal

Next up today, Andy at Torrentfreak writes that a Danish court has ruled that the site Convert2MP3 should be blocked, marking the first time that a court has ruled such stream ripping sites are illegal.

Stream ripping sites allow users to download audio from various sources, most prominently YouTube. Though the sites are violations of the streaming site’s terms of service, there’s never been a court ruling labeling them as illegal from a copyright standpoint. One popular site, YouTube-MP3 was sued but the case was settled before a verdict was reached.

In this case, the Danish court ruled that Convert2MP3 was indeed infringing and ordered local ISPs to block access to the it, as per the nation’s law. It is unclear if this will be an isolated case or just the first of many such attempts to target stream rippers with site blocking laws.

3: Statue of Liberty Stamp Mistake to Cost Postal Service $3.5 Million

Finally today, Amanda Svachula at The New York Times reports that a mistake by the U.S. Post Office will cost it $3.5 million as it mistook a Las Vegas replica of the Statue of Liberty for the original when making a 2010 stamp to highlight the statue.

In 2010 the USPS debuted its Lady Liberty “forever” stamp. The Post Office had found the photo on Getty images and, after cropping it to fit the stamp, began printing it. However, the statue in the image was not the original Statue of Liberty but instead was a modified replica by sculptor Robert Davidson, which sits in front of the New York-New York Casino in Las Vegas.

Davidson filed a copyright infringement lawsuit in 2013 and a federal court has now agreed, awarding him some $3.5 million in damages after determining that his work was unique enough to be protected. The Post Office did not respond to the ruling and it is unknown if it plans on appealing.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

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The post 3 Count: 1977 Blues appeared first on Plagiarism Today.

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Instinct is a TV show not unfamiliar to this site. Back in April, the show was accused of plagiarizing much of the story of its third episode from a 2009 episode of the TV show Bones.

The similarities were so extreme that even Instinct‘s showrunner, Michael Rauch, admitted to the issue on Twitter and said that it was “100% unintentional” and that they were looking into it to make sure it doesn’t happen again.

Yeah, heard about this. Very distressing and 100% unintentional. Looking into it and how to make sure it doesn’t happen again. And of course apologies to Bones (and their fans). Thanks for the heads up. @HartHanson https://t.co/1ZkgOLQfwc

— Michael Rauch (@Michael_Rauch) April 2, 2018

However, as per the old saying, the show must go on and Instinct continued after the controversy. With another ten episodes to go in its first season, it couldn’t let a plagiarism issue stop its initial run.

But that made it all the more interesting when, in episode 10, entitled Bye, Bye Birdie, plagiarism went from being a controversy about the show to being a topic of the show.

As such, it’s worth taking a moment to see how Instinct handled plagiarism when the topic became the intentional focus of the show.

Note: Episode spoilers below…

The Plot

Instinct is a TV show that follows the exploits of Dr. Dylan Reinhart, a former CIA agent who took up teaching and writing but, after his book was used by a serial killer, began working with the New York Police Department as a consultant. There, he helps Detective Lizzie Needham solve tough cases.

In this episode Dylan and Lizzie are called to the home of author Celia Baxter, who claims that a man in a well-tailored suit and animal mask attacked her and nearly killed her. In fact, without her publisher walking in, Celia claims she would have been dead.

The police retrieve the knife used in the attack and DNA evidence from it leads them to Ben Richfield, a successful author that was Celia’s former writing professor. To make matters more interesting Ben and Celia bumped into each other recently and caught up over a cup of coffee.

Lizzie and Dylan meet Ben at his office but find him to be both highly narcissistic and less than cooperative.  However, the detectives learn that another victim has turned up, Renata Pendell. Renata was killed, stabbed more than 30 times, by an attacker matching the description of the one who attacked Celia.

Texts to Ben found on Renata’s phone indicated that she was attempting to blackmail him, saying that she knew what he did to several people identified only by their initials. Dylan went to Celia who not only revealed she was battling cancer but that Ben had a habit of stealing ideas from his students. In her case, Ben had stolen the idea behind his most successful series, simply modifying the main character.

Ben is arrested after his blood turns up at the second crime scene but Dylan begins to get suspicious that Ben isn’t the killer. It’s revealed that Renata, as well as being a former student of Ben, was also the mistress of Celia’s ex-husband. Coupled with a height difference between the killer captured on video and Ben, and suspicion quickly falls to Celia.

As it turns out, Celia isn’t merely battling cancer but is dying from it. Seizing the opportunity to take revenge, she used fake blood (created using DNA from a coffee cup) to plant evidence against Ben and frame him both for attacking her (an attack that didn’t happen) and the murder of Renata.

Dylan and Lizzie raid Celia’s home (and rescue a mutual friend who was about to become her third victim) but find that Celia isn’t there. She was long gone and in the Bahamas. There she planned on living out the last few weeks of her life, comfortable in the fact she’ll likely be dead before she can be extradited back to the United States.

Understanding the Plagiarism

When looked at just in the context of the story, the plagiarism isn’t especially interesting.

The plagiarist, Ben Richfield, is never really explored as a character. He’s only in the episode for a couple of scenes and says very little. We don’t have any information about why he chose to plagiarize (despite being an obviously talented writer) and what, if any, fallout took place when (and if) the allegations became public.

Ben’s punishment in the episode is briefly being accused of murder before being exonerated through the hard work and cleverness of the show’s main characters.

We do come to understand one of the victims, Celia, a bit better. However, she revealed very little about her true feelings until the end of the episode. Initially, she denied being much bothered by the plagiarism saying she would never be happy writing about vampires. However, at the end of the show, she made it clear just how personal the plagiarism was, saying that the story Ben took was the one time the “writing Gods” spoke to her.

While Celia was obviously hiding her true feelings to avoid suspicion, it’s actually a pattern that’s pretty common among plagiarism victims. Many attempt to deny how much the plagiarism impacts them, often out of a feeling of helplessness, only to later acknowledge that it does bother them.

This is a common arc in just about any kind of injustice, however, it is nice to see it play out in a story about plagiarism.

The other interesting element of the story is the plagiarism itself. Ben is accused of taking ideas from his students and nothing else. In fact, according to Celia, he actually changed a good bit when taking those ideas from his students.

While this is certainly plagiarism and would absolutely be upsetting to those he victimized, it’s not a copyright infringement.

This, when combined with the power dynamic between student and teacher, explains why Ben never faced repercussions for his plagiarism. Celia and his other victims couldn’t sue him and any attempt to make a public controversy would likely lead to a lawsuit from the wealthier and better-known author.

In short, because of who he plagiarized from and what he took, Ben was able to plagiarize with relative immunity, at least until Celia cooked up a revenge scheme involving murder and planted evidence. This part is actually fairly realistic, at least in terms of the plagiarism.

In the end though, the plagiarism was really nothing more than the motivation for an elaborate attempt at revenge. While there are interesting elements to the plagiarism, those seem to be more accidental than intentional.

Rather than a deep exploration of why people plagiarize and the impact it can have, the show took a more two-dimensional perspective on it and missed out on opportunities to explore it more.

Bottom Line

While the plagiarism on the show may not be particularly deep, it does take on a new dimension when you remember that Instinct, just three months earlier, was facing allegations of plagiarism of its own.

However, Instinct‘s plagiarism wasn’t just the taking of ideas. The show took phrases, characters, specific plot points, images and more from Bones. In short, what Instinct did in episode 3 was, in many ways, worse than what Ben is accused of doing in episode 10.

But yet, episode 10 paints Ben as an evil, narcissistic character who is an unsympathetic target for revenge by Celia. Though Celia is treated as a criminal, she’s painted in a very favorable light. Not only is she someone who wronged and is dying of cancer, but she gets away in the end.

Ben may be a victim but he’s also a villain. That raises serious questions about how the show sees itself.

Since the entire first season was, almost certainly, written and shot at the same time, it’s unlikely that this commentary was in any way intentional. This is especially true since the two episodes were written by different authors.

Still, it’s very interesting that a TV series closely associated with flagrant plagiarism not only had a plagiarist character, but one that was portrayed as a narcissistic villain who got a taste of well-earned revenge.

It’s an interesting swing to say the least.

Further Reading

Want more plagiarism in pop culture? Check out the other installments in this series below:

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Have a Plagiarism Problem?Need an expert witness, plagiarism analyst or content enforcer? Check out our Consulting Website

The post Plagiarism in Pop Culture: Instinct appeared first on Plagiarism Today.

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Plagiarism Today by Jonathan Bailey - 1w ago

Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: Controversial Copyright Law Rejected by EU Parliament

First off today, thee BBC reports that controversial EU Copyright Directive was rejected by the European Parliament by a vote of 318-278, setting it up to be renegotiated and, most likely, heavily revised.

The proposed legislation was an attempt to modernize EU copyright law but contained two controversial elements. One, Article 11, would have required search engines and other aggregators to obtain a license before using snippets of content from press media and the second, Article 13, would have required some online service providers to be proactive with preventing copyright infringing material from being uploaded to the service.

The legislation had significant support from rightsholders but also drew protests from the internet. In the end, the protests won out as Parliament narrowly defeated the bill, sending it back to be renegotiated.

2: NZ Court Rules Kim Dotcom Can Be Extradited to US on Copyright Charges

Next up today, Timothy B. Lee at Ars Technica reports that the New Zealand Court of Appeal has ruled against Kim Dotcom, saying that he can be extradited to the United States for his role in operating the site Megaupload.

Dotcom was arrested and his home raided in January 2012. He was accused of running the file sharing site Megaupload, which was one of the most popular destinations for downloading copyrighted works. Dotcom, however, has fought extradition saying that, since New Zealand does not provide criminal copyright penalties, he shouldn’t be sent to the U.S. to face that charge.

The lower court ruled in favor of the U.S. government n 2015 and now that decision has been upheld by the Court of Appeals. However, Dotcom has said that he plans on appealing the matter to the New Zealand Supreme Court. However, the New Zealand Supreme Court, much like the US Supreme Court, only hears a small percentage of cases. If the extradition is upheld, Dotcom would then be sent to the United States, to face a possible trial here.

3: Supreme Court to Resolve Copyright Registration Circuit Split

Finally today, Jake Wharton at IPWatchdog reports that the US Supreme Court has agreed to hear the case Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC and may finally resolve a circuit split on the issue of whether an application or a registration is necessary to file a copyright infringement lawsuit.

In the United States, a registration with the U.S. Copyright Office is required to file a copyright infringement lawsuit. However, questions remain whether an application for registration is adequate or if you must have the completed registration (which can take over 7 months).

The case itself deals with a relatively mundane issue about articles appearing on the site wall-street.com after a license had expired. However, it addresses a circuit split issue over the nature of registration as various Appeals Courts have said that only an application is necessary where others have said that the completed registration (or rejection thereof) is necessary.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

Want to Republish this Article? Request Permission Here. It's Free.
Have a Plagiarism Problem?Need an expert witness, plagiarism analyst or content enforcer? Check out our Consulting Website

The post 3 Count: EU Rejection appeared first on Plagiarism Today.

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With the controversy surrounding the new EU Copyright Directive, one article has received the lion’s share of attention: Article 13.

Whether it’s being called a “war on memes” or the “end of all that’s good and pure about the internet,” there’s been a great deal of focus on the article and what it may or may not do to the internet.

However, as we did last time with Article 11, we will take a dive into the actual language of the bill and attempt to interpret what it actually says. To do this, we’re going to look at the most recent version of the bill as of this  as provided by MP Julia Reda, a staunch opponent of the directive, and try to determine both what the article says and who it will impact.

The answer, as with most things dealing with legislation, is complex. But one thing that is clear is that the narrative around the article is oversimplified, especially as the article has gone through so many changes since it was first proposed in 2016.

Note: For more information about the history of the new EU Copyright Directive and where things sit today, please see the previous article, which covers that and looks at Article 11, the “link tax” article. 

Who Article 13 Affects

When compared to the original proposal, Article 13 has undergone a major overhaul, to the point that almost none of the original text is in there. One of the most important changes is the title of the article, which also declares who it governs.

In the original draft, the article was entitled:

“Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users.”

As we discussed in the previous article, “information society service providers” is a broad term that encompasses almost any online service from a blog to a major social network. This would have made it so that any site or service, once deemed sufficiently “large”, would be beholden to the article.

In the latest draft, the title of the article is changed to read:

“Use of protected content by online content sharing service providers”

The act also defines an “online content sharing service provider” as:

“A provider of an information society service one of the main purposes of which is to store and give access to the public to copyright protected works or other protected subject-matter uploaded by its users, which the service optimises.”

Though this new definition removes the need for a provider to be sufficiently large, it does provide other, crucial limitations.

For a service to be affected, it has to have the “main purpose” of giving access to copyright-protected works uploaded by users. This means that individual blogs don’t need to take action just because they have a comments section, but Facebook likely would.

Similarly, it requires that a service somehow optimize the content, which is another important distinction. Hosts like GoDaddy, where a user pays to host websites, don’t optimize or alter user content. As such, they would not likely be affected, at least not for their hosting service.

The definition then goes out to carve a list of other exemptions, those include:

  • “Services acting in a non-commercial purpose capacity” (specifically citing online encyclopedias).
  • Providers where the content is uploaded with permission from all rightsholders (specifically citing “educational or scientific repositories”)
  • Providers of cloud services that don’t provide direct access to the public.
  • Online marketplaces where the main activity is selling physical goods.

The latter is especially interesting. Many would assume that an online storefront that actively sells copyrighted works would have a higher level of responsibility than a social network, but the definition says otherwise.

This is especially odd in the face of widespread complaints of copyright infringing photos and artwork being sold on Amazon, which Amazon is often slow to remove.

Regardless, the law makes it very clear who would be directly impacted by this: Commercial providers whose “main purpose” (or one of their main purposes) is “to store and give access to the public” copyright protected works that it somehow optimizes or alters. There is no exemption for size in the current draft, so even startups could be held to task.

But what exactly is that task? To determine that, we have to look at the act itself.

Obligations Under Article 13

The article actually begins by saying that such providers, when possible should obtain licenses from rightsholders to cover the use of their content by their users. However, when such a license cannot be obtained, and this is where the article is at its most controversial,  service providers are ordered to:

“Take, in cooperation with rightholders, appropriate and proportionate measures leading to the non-availability of copyright or related-right infringing works or other subject-matter on those services, while non-infringing works and other subject matter shall remain available.”

The article never uses the word “filter” or “filtering” anywhere in it. However, since the provider has to ensure the non-availability of infringing works, it is pretty clear that a filtering system would be required.

The article doesn’t delve into the technical details of how the system would work. Instead, it focuses more on the transparency of it saying that the provider must:

“Be transparent towards rightholders and shall inform rightholders of the measures employed, their implementation, as well as when relevant, shall periodically report on the use of the works and other subject-matter.”

Most importantly, the article puts in checks and balances to ensure that the system won’t be abused, requiring providers to:

“Put in place effective and expeditious complaints and redress mechanisms that are available to users in case of disputes over the application of the measures.”

The article goes on to state that complaints filed under those mechanisms “shall be processed without undue delay” and that rightsholders must justify their decisions.

The act then goes on to state that member states should facilitate cooperation between providers, rightsholders and users to find “best practices” for applying these tools.

The Likely Impact of Article 13

Unlike Article 11, the steps in Article 13 have never been tried by individual member states. This would be the first time such a proactive approach had been legislated anywhere.

However, even without legislation, we’ve already seen widespread use of filtering tools. Currently, YouTube, Facebook, InstagramSoundCloud, Twitch and more all use some form of filtering technology.

But, even without such tools, rightsholders often use automated tools to track and send takedown notices, a behavior that has already been sanctioned by the Ninth Circuit, meaning that copyright enforcement is largely in the hands of automated tools, regardless of how it is enforced.

But, while Article 13 would not represent a genesis for filtering tools, it would represent an expansion.

Currently, filtering technology is used almost exclusively for audio and visual content. Article 13 doesn’t make any exceptions for type of content, meaning we would likely see it for images and text content, so long as the provider “optimized” the content in some way.

This is where the “war on memes” barb comes from. The theory is that, since many hosts will have to filter images, photographers and artists who created the original meme images, can simply have the images filtered out.

However, the artists behind memes have, in general, not expressed much interest in stopping the use of their work. Memes have not become the targets of mass copyright complaints and artists typically don’t avail themselves of the tools they have today. There’s little reason to think that many would do so should filtering become mandated.

In short, a “war on memes” is not a likely outcome of Article 13 simply because rightsholders aren’t looking for it. However, this doesn’t mean that images won’t be at the forefront of the expansion of filtering, stock photo agencies, despite being generally permissive of non-commercial uses, have a long history of being aggressive against commercial use of their work. Exactly how they will respond to Article 13 is unclear.

The larger impact is the shift from filtering as a tool of expediency to an obligation.

Right now YouTube, Facebook, etc. use filtering technology out of expediency. If they wanted to, they could drop it tomorrow. While they’d undoubtedly be hit with a tidal of copyright notices, they could do it.

Article 13 not only mandates that filtering, but sets standards for what the transparency around that filtering should be. That, in turn, would force YouTube to negotiate for a license the same way that Spotify or Apple Music does. If YouTube doesn’t negotiate a license, there’s no fallback of letting users upload it and then removing it after a notice. Instead, it’s either have a license or not have the song.

MP Axel Voss, who is Parliament’s rapporteur on the directive, has said that addressing the “value gap” is not the goal of the law. He simply says many large companies earn a great deal of money off user uploads, including infringing ones, and that those companies need to take greater responsibility for fighting copyright infringement.

Regardless of intent though, the “value gap” will be one of the things that this law will impact if it passes. Changing the legal obligations will change balance of power when negotiating licenses.

In short, Article 13 shifts the balance of power from providers to rightsholders on these issues and that will have a profound impact on the internet. While it might not be as catchy as a “war on memes” it’s definitely something that needs to be discussed.

Unfortunately, that’s not the conversation that most of the internet is having when it comes to Article 13.

Bottom Line

Much of the fear and concern about Article 13 has centered around the idea that the filters can be abused, that the technology isn’t perfect and that they will inevitably prevent at least some non-infringing speech.

All of that is true.

However, that argument misses an important detail: Filtering is already a fact of life and its use is only going to continue to grow, regardless of whether the directive is passed. The largest sites for social networking, sharing video and sharing audio all have filters in place. Once a site or service reaches a certain size, it’s the only practical way to handle copyright issues.

The issues around filtering aren’t a dystopian future if Article 13 becomes law, but a reality today. While Article 13 will certainly accelerate the spread of filtering, requiring it on content sharing services of all sizes and all types, that expansion is likely happening anyway, simply through the growth of the technology.

If it becomes law, the biggest change won’t be creating a filtering nightmare, it will be the way it shifts power away from online services and toward rightsholders. Though the law will certainly change who filters and what they filter, it’s the “why” question that is much more important.

In the end, a war on memes isn’t a likely outcome and it is equally unlikely you’ll see massive censorship on Facebook, Twitter, Reddit, etc. Unfortunately, the hype and rhetoric around the directive have made it nearly impossible to discuss the more probable changes it will bring.

This, in turn, is a problem we’ve seen before and will likely see again in the future.

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Plagiarism Today by Jonathan Bailey - 1w ago

Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: ‘Star Wars’ Card Game App Lawsuit Produces Copyright Win for Lucasfilm

First off today, Eriq Gardner at The Hollywood Reporter Esquire reports that a California judge has issued a summary judgment against a mobile game developer that created a version of the Star Wars card game Sabacc.

The card game Sabacc was wholly fictional, existing only in dialog in the Star Wars franchise and was best known for how Han Solo won the Millennium Falcon. However, Ren Ventures LTD created a mobile game that lets users play the card game. Lucasfilm filed a lawsuit claiming copyright infringement but Ren challenged multiple aspects of the lawsuit including asking what registered material pertained to the game itself and whether the prevalence of Star Wars gifs and memes meant that Lucasfilm had surrendered its copyright interests/

The judge. however, disagreed with those arguments. He handed Lucasfilm a summary judgment ruling that the registered DVDs were adequate to prove Lucasfilm’s ownership and timely registration of the material at issue. Furthermore, the judge ruled that the game is not a fair use of Star Wars materials. As such, the judge ruled against Ren but left open the question of whether the infringement was innocent, setting the stage for a possible jury trial on that issue.

2: National Party Argue Costs for Eminem ‘Lose Yourself’ Copyright Breach

Next up today, Melissa Nightingale at the New Zealand herald reports that, in New Zealand, the National Party is appealing a judgment that ordered them to pay $600,000 ($405,000 US) to musician Eminem and his publisher Eight Mile Style.

The lawsuit was over the National Party’s use of a song entitled Eminem Esque in one of their political ads. The song, which was designed emulate the sound of Eminem, was ruled to be so close to the Eminem song Lose Yourself that it was a copyright infringement. Given how rarely Eminem allowed his music to be in commercials, the court ruled that the National Party owed him $600,000 in damages.

However, the National Party says that amount is unfair and overly licensor-centric. According to the party, they had other songs that they could have used and that the run of the campaign was limited to just 11 days. As such, they feel the amount should be lowered.

3: Judge Dismisses Plagiarism Lawsuit Against The Girls Author Emma Cline

Finally today, Gabriella Palella at The Cut reports that a judge has dismissed a copyright lawsuit against author Emma Cline that was filed by her ex-boyfriend, Chaz Reetz-Laiolo.

The lawsuit has been an expecially contentious one with Cline making allegations of abuse and Reetz-Laiolo claiming that Cline used key-logging software to gain access to his computer. That’s how he claims Cline accessed a story he was working on and then, according to him, used it to create her hit novel The Girls.

The judge, however, has dismissed the copyright portion of the lawsuit, saying that there are no substantial similarities between the works involve. The judge also dismissed one of Cline’s allegations over domestic violence. However, the hacking allegations and three of the domestic violence allegations are still pending before the court.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

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Plagiarism Today by Jonathan Bailey - 2w ago

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1: New Way to Pay Songwriters and Musicians in the Streaming Age Advances

First off today, Ben Sisario at The New York Times reports that the Music Modernization Act has made it through the Senate Judiciary Committee, clearing another hurdle on its path to becoming law.

The bill, which itself is a combination of the previous Music Modernization Act and the CLASSICS Act, addresses a range of issues when it comes to music licensing. In particular is the creation of a new licensing collective for the handling of mechanical royalties for digital services, establishing a right for digital streaming royalties for pre-1972 sound recordings and address other pain points in music licensing.

The bill passed the House of Representatives unanimously in April. The vote in the Senate Judiciary Committee clears the bill for a possible vote before the full Senate though such a vote has not been scheduled at this time.

2: Ed Sheeran Sued for $100m Over Alleged Plagiarism

Next up today, The Irish Times reports that Ed Sheeran is being sued for $100 million over claims that Sheeran’s 2014 song Thinking Out Loud copied elements from Marvin Gaye’s 1973 song Let’s Get It On.

The lawsuit was filed by Structured Asset Sales (SAS), a company that owns part of the copyright to Gaye’s song. SAS claims that Sheeran’s song copies “melody, rhythms, harmonies, drums, bass line, backing chorus, tempo, syncopation and looping” from Gaye’s work and is a copyright infringement.

Other defendants in the lawsuit include Sony/ATV Music Publishing, Atlantic Records and Amy Padge, Sheeran’s’ co-writer.

3: Nintendo Switch Piracy Firmware Uses ‘Brick Code’ to Prevent Itself From Being Pirated

Finally today, Richard Leadbetter at Eurogamer reports that new homebrew firmware for the Nintendo Switch, which itself enables users to play pirated games, has a “brick code” that prevents itself from being pirated.

The firmware, named SX OS, was put out by Team Xecutor with the purpose of allowing Switch owners to run unsigned code, including pirated games. It takes advantage of a hardware exploit that Nintendo cannot stop without releasing a new version of the Switch, though Nintendo has regularly banned users with modified consoles.

The use of the “brick code” in the SX OS firmware caught many off guard, including security researcher Mike Heskin. Heskin discovered the code when it ruined his console. However, this isn’t the first time such a code has been used with homebrew firmware, notably a hack for the 3DS had a similar function. They usually exist not just to stop pirating of the software, but also to prevent reverse-engineering by competing teams.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

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Plagiarism Today by Jonathan Bailey - 2w ago

Have any suggestions for the 3 Count? Let me know via Twitter @plagiarismtoday.

1: Bethesda Sues Warner Bros, Calls its Westworld Game ‘Blatant Rip-off’ of Fallout Shelter

First off today, Michael McWhertor at Polygon reports that Bethesda Softworks have filed a lawsuit against Warner Brothers and Behaviour Interactive over the recently released game Westworld, which Bethesda claims is a copyright infringement of their game Fallout Shelter.

Bethesda teamed up with Behaviour to produce Fallout Shelter, a mobile game that went on to be released on all the major consoles as well as PCs. However, according to Bethesda, when Behaviour teamed up with Warner Bros. to make a mobile game based on the Westwood TV series, they reused the “game design, art style, animations, features and other gameplay elements” from Fallout Shelter.

Bethesda claims that, as proof of this, they found that a bug that was evident in early versions of Fallout Shelter made it into Westwood, proving that the two games have computer code, not just gameplay elements, in common. Bethesda is suing for copyright infringement, breach of contract and misappropriation of trade secrets. It is seeking a jury trial and unspecified damages.

2: Childish Gambino’s manager denies accusation of plagiarism over “This is America”

Next up today, Andrea Park at CBS News reports that listeners and fans are accusing Childish Gambino, also known as Donald Glover, of plagiarism in his recent hit song This is America.

Reddit user FutureLaDiDaDiDa posted about similarities between This is America and American Pharaoh by Jase Harley. He cited lyrical and musical similarities as well as overlapping themes between the songs. Harley, for his part, said in an Instagram post that he’s never worked with Glover in any way but shared the suspicions that This is America was influenced by his song. However, he said that he wasn’t worried about it because “Sampling is the culture of hip-hop.”

Glover’s manager, however, came forward and said that they were working on their song before American Pharaoh was released. However, both sides have said that they do not want this story to distract from the messages of the two songs, both of which deal with issues of race and injustice in America.

3: Copyright Lawsuit Dropped Against Fortnite Creators, Ending Legal Battle

Finally today, Sam Kim at Bloomberg reports that PUBG Corp, the company behind the popular game PlayerUnknown’s Battlegrounds (PUBG) has withdrawn its lawsuit against Epic Games over the even more popular game Fortnite, though it is unclear if a settlement was reached or what the outcome of the case was.

PUBG began the current trend of “Battle Royale” video games, which feature mammoth 100 competitor matches on a small playing field. PUBG Corp filed the lawsuit in South Korea alleging that Fortnite copied elements from PUBG even though Epic Games provides some of the technology used to create PUBG and both companies are partly owned by Tencent Holdings.

However, that lawsuit has now been dismissed though it is unclear if a settlement was reached or if anything was changed by the lawsuit at all.

Suggestions

That’s it for the three count today. We will be back tomorrow with three more copyright links. If you have a link that you want to suggest a link for the column or have any proposals to make it better. Feel free to leave a comment or send me an email. I hope to hear from you.

The 3 Count Logo was created by Justin Goff and is licensed under a Creative Commons Attribution License.

Want to Republish this Article? Request Permission Here. It's Free.
Have a Plagiarism Problem?Need an expert witness, plagiarism analyst or content enforcer? Check out our Consulting Website

The post 3 Count: Bethesda Bugs appeared first on Plagiarism Today.

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Summary
  • New EU Copyright Directive has caused a great deal of controversy due to “link tax” and “meme killing” sections
  • Analysis of Article 11, the “link tax” section, shows that it has been curtailed heavily from the original proposal but will still give news publishers a right to demand a license for use of snippets of their content.
  • However, similar efforts have shown that it is unlikely to produce a windfall for publishers, but it may still cause issues for many websites, including Google and Facebook.

If you follow copyright news at all, you’ve likely heard about the proposed EU Copyright Directive. It’s been described as everything from a “war on memes” to the “end of all that’s good and pure about the internet.”

But for all the directive’s controversy, the bill passed a crucial vote last week in the European Parliament Committee on Legal Affairs, where the overall committee position  was approved 14-9.

Whenever I’m confronted with a controversial piece of legislation, my first step is usually to look at the source documents and draft an analysis from them. Previously I’ve done with the CLASSICS Act, the Fairness for American Small Creators Act and elements of SOPA/PIPA.

The goal is to get away from the rhetoric and understand what is in the act itself and how it will likely work. Only from there can we discuss likely impacts of the law and the positives and negatives that come with those impacts.

Unfortunately, with this act, that has proved difficult to do. While the original European Commission proposal is readily available, it is from 2016 and has undergone many revisions, especially in the most controversial sections.

Even organizations closely following the legislation, such as the EDRi, struggle to keep on top of the changes, relying upon leaks to follow the bill as it winds through the EU government. This is made more confusing by the seemingly unending drafts, edits, proposals and other changes that are being made.

However, MP Julia Reda, a staunch opponent of the reforms, has linked to a PDF Version of the Oeittinger/Voss plans, which includes the latest compromise amendments that were voted on by Committee on Legal Affairs.

As such, we’ll look at that draft and analyze the two main controversial sections of the bill and what they will actually do. Today we’ll look at Article 11, the “link tax” article and later this week we’ll look at Article 13, the “internet filter” section.

However, before we do either, we need to take a look at how we got here.

The Story So Far

The Copyright Directive was first proposed on September 14, 2016 by the European Commission (the executive branch of the EU). It was drafted with the stated aim of harmonizing copyrights at the EU level and addressing “new types of uses” and “achieve a fair balance between the rights and interests of authors and other rightholders on the one hand, and of users on the other.”

Though the proposal has bounced around the EU bureaucracy steadily since then, it began to get widespread attention in the run up to a June 20th, 2018 vote in the European Parliament Committee on Legal Affairs (JURI).

Of particularly strong interest was 2 of the proposal’s 17 articles: Article 11 & Article 13.

Article 11 has been described as a “link tax”, which would require search engines and other sites to pay for the use of snippets. Article 13 is the now-famous. “meme killer” article that would require some online service providers to install filtering software in order to avoid liability for copyright infringement.

Following it’s committee vote, the directive will now head to the full European Parliament where there will likely be two votes. The first, in early July, would vote on whether to reopen the bill for debate, possibly opening the door to radical changes.

If it passes that vote, which would give the Parliament the mandate to negotiate with the EU Council (the EU member states and the other part of the EU legislative branch) it would then go into those negotiations. While there is no set timetable that would likely be completed it’s likely that the negotiations, along with a last check of the language, would be completed at or around the end of the year. That would mean the bill could be put to its final vote either at the end of 2018 or in early 2019.

But this, in turn, begs the question: What do the articles actually say and will they as bad as many fear? We’ll take a look at the text of the articles as they exist in the most recent available document and find out.

To that end, we’ll take them in numerical order and start with Article 11 (Article 13 analysis will be posted later this week).

Article 11: The “Link Tax”

Paragraph 1 of Article 11 simply reads as follows:

Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers.

Article 2 and 3 referred to in the paragraph are simply the reproduction right and the right to communicate a work to the public.

However, the definition of “information society service providers” is a bit thornier to get through. That definition is found in this directive, which describes it as “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.”

What is and is not considered such a service gets extremely complex quickly (with many exceptions carved out). However, key examples include “Web shops and marketplaces, search engines, online advertising, video sharing sites, blogs, hosting, video-on-demand, online consultancy, online marketplaces, social networking, etc.”

The bill, as written, does not apply to “legitimate private and non-commercial use of press publications by individual users” nor does it extend to the act of hyperlinking itself. The act also makes it clear that the law does not override existing copyright exemptions, including the use of orphan works, and instead works in tandem with those exemptions.

However, those exemptions do not include a fair use or fair dealing. This means very small snippets of articles (such as those seen in search previews) could require a license. Though linking that does not include original content from original article, such as most of the links in this article would not be impacted, search engines and social media sites easily could be as they often show direct previews.

In the original version of the directive, the rights in this article were to last for 20 years and would be retroactive. However, this compromise reduces the term to 5 years and the rights are no longer retroactive. Still, the term seems largely moot as most aggregation and linking of an article takes place within weeks, not years, of publication.

The new rules would only apply to works by “press publications”, which are defined as “a fixation by publishers or news agencies of a collection of literary works of a journalistic nature” and specifically does not include academic and scientific journals. Most websites wouldn’t qualify either because, while the law allows the publication to take place in any medium, it requires both “editorial responsibility and control of a service provider.”

The last paragraph of simply requires that member states make sure that authors receive an “appropriate share” of the revenue generated from this new right. However, the details are left up to the individual states.

The Likely Impact

If this idea sounds familiar, it’s because we have seen it before. Various countries within the EU, including Germany, Belgium and Spain, have implemented versions of this idea in the past.

In Germany, most publishers simply opted in to Google News without receiving a license fee. This was because Google, rather than offer to pay, simply threatened to drop German publications if they didn’t opt in. This made Google News an opt-in service, rather than an opt-out one as it is in the rest of the world, but little else changed.

However, it was in Spain where things were extremely interesting. There, the law did not allow publishers to opt out and, when the law took effect, Google News (along with a variety of smaller aggregators) simply shut down. It is still shut down today.

A study paid for by publishers found that this resulted in a traffic drop between 6 and 14 percent for Spanish news sites and a loss of revenue of about €10 million ($11.7 million) in the first year.

The hope of the directive is that the whole of the EU can do what its individual members couldn’t: Compel Google, and other sites, to pay for using snippets of news content.

But, while Google is the biggest target, it likely won’t be the only one impacted. Social media/networking sites, which routinely display such snippets, will be impacted as well. Also, as with the Spanish law, smaller aggregators may have to make changes, obtain licenses or close.

It’s hard to predict just how the major players will respond. There are three major paths they could take:

  1. Obtain a License: Either by having publishers opt in for free or by paying for it.
  2. Stop Using Snippets: Plain hyperlinking is specifically exempt so some sites simply could stop using snippets from the articles.
  3. Close Down/Stop Using EU Sources: Finally, they could simply avoid using EU publications, either by closing their doors or avoiding those sources.

Though Google has paid to settle disputes with newspapers in the past, it’s also shown it will go to great lengths to avoid paying a license. As such, anything that doesn’t involve paying seems more likely, at least as it pertains to Google.

This seems likely for other players too, not just to avoid the costs but also the overhead of obtaining and paying for a license.

In short, while it is impossible to predict just how things might go wrong, history suggests that this article is unlikely to represent a windfall for EU publishers.

Bottom Line

Coverage of Article 11 has been far less extreme than it has of Article 13. However, that doesn’t mean that it’s been wholly fair. The descriptor “link tax” seems unfair considering the directive, in its latest form, specifically allows hyperlinking.

The argument in favor of calling it a “link tax” is that snippets are often necessary. There is definitely some truth to this. For example, I use original headlines in the 3 Count column to ensure search engines link to the original source, not my summary.  Under this directive, I would have to change to using original headlines to make sure I’m compliant.

Still, it’s not the link itself that’s the issue, it’s the snippets. However, a “snippet tax” doesn’t have the same punch.

Regardless, the main two criticisms of the article are that it will restrict the free flow of information and that it is doomed to fail.

The first is difficult to predict, even looking to history. In Germany the impact was minimal because of the way the act failed. In Spain, it was greater. Since the EU directive doesn’t specifically prevent publishers from opting out, a Germany-style outcome seems more probable but it’s impossible to be certain.

Either way, there will be some impact as the law will add a new layer when sharing content from news sites.

As for the second criticism, history strongly seems to support that idea.

If EU publishers are hoping for a windfall, they are likely to be disappointed. Google and others have made it clear that they are not wanting to pay a license fee for the use of snippets and the law provides ways to get around such a fee.

As such, even if the impact on linking and sharing is minimal, it will likely still fail as publishers won’t likely see the new revenue they are hoping for.

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