
Samsung Sets Its Reputation on Fire with Bogus DMCA Takedown Notices - DiabloD3
https://www.eff.org/deeplinks/2016/10/samsung-sets-its-reputation-fire-bogus-dmca-takedown-notices
======
smaili
_Last week, Samsung sent a series of takedown notices aimed at videos showing
a GTA V mod in action. The modification replaced an in-game weapon with an
exploding Samsung phone._

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.

~~~
iotscale
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.

~~~
inanutshellus
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.

------
vezycash
>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.

~~~
LeifCarrotson
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](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](https://support.google.com/youtube/answer/2807622?hl=en).
Misuse can result in suspension of the YouTube account.

~~~
Klathmon
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.

~~~
ska
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.

~~~
Klathmon
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.

~~~
ska
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.

~~~
piaste
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.

------
supersan
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.

~~~
tobltobs
I don't believe that the Streisand effect is a common outcome, not even for
especially ridiculous cases.

------
delinka
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.

------
LeifCarrotson
It has been restored. Here is the email chain:

[https://imgur.com/a/teTNN](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.

~~~
criley2
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](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.

~~~
LeifCarrotson
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?

~~~
criley2
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!)

------
anilgulecha
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.

~~~
veli_joza
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.

------
AdmiralAsshat
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.

~~~
delinka
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.

------
misnome
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.

~~~
jamesbrownuhh
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.

~~~
misnome
Ah - my fault - I thought it was the general term for the private agreements
that let certain companies take down stuff at will.

------
6stringmerc
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.

~~~
Retric
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.

~~~
6stringmerc
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.

~~~
Retric
"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...](http://apps.americanbar.org/litigation/committees/intellectual/roundtables/0506_outline.pdf)

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.

~~~
6stringmerc
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.

~~~
Retric
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](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.

~~~
6stringmerc
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.

~~~
Retric
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.

