
CBS gets YouTube review of 'Picard' taken down for using 26 seconds - Keverw
https://www.techdirt.com/articles/20200128/10284943817/cbs-gets-angry-joes-youtube-review-picard-taken-down-using-26-seconds-shows-trailer.shtml
======
henryfjordan
Youtube has it's own system outside of the DMCA to handle copyright claims in
which the claimant has all the power. If the poster of a video wants to appeal
a copyright claim, they appeal directly to the claimant who gets to decide.
You can then appeal to YT directly (good luck with that) but in the meantime
the claimant can issue a "strike" on your account. 3 strikes and you are out.
So instead of fighting claims, posters are encouraged to just roll with the
punches and be glad they get any money. Youtubers at this point will openly
say "I'd show a clip but then I won't make money on this video" even when that
clip would 100% be fair-use.

Youtube designed this system after pressure from the major Movie / Music
publishers to either give them stronger tools than the DMCA provides or face a
blackout from these major publishers. They wanted final control over their IP
on Youtube and they got it, damn the law. If they had to file real DMCA
claims, these claims on obviously fair-use materials would disappear.

~~~
mywittyname
I wonder if this will be the undoing of YT. If large content creators start
inserting segments saying, "I can't show the clip here, but if you go to my
vimeo channel <link at top>, you can see the full review." That will offer
people a segue off of YT.

~~~
rasz
YT has eula clause prohibiting videos that redirect users to another video
platform :) Linustechtips got a ban for this once, reversed because famous
[https://www.polygon.com/2018/7/12/17564060/youtube-
accounts-...](https://www.polygon.com/2018/7/12/17564060/youtube-accounts-
twitch-spam-deceptive-surny-linus-tech-tips-astrosizt)

~~~
gbrown
It seems like that might offer a good target for anti-trust action.

------
macinjosh
I am seriously surprised how long it is taking for YouTubers to realize the
YouTube platform is failing them and in some cases it is pitted against them.
When you get down to brass tacks they only care about their advertisers. CBS
is a big advertiser and partner for YouTube so they and those like them will
always win. Social and legal norms be damned

I do get encouraged when I see some creators going their own way like:
floatplane.com and watchnebula.com

Support creators you care about or they may not be around much longer.

~~~
VectorLock
It feels like most YouTubers know and have vocalized their issues with
YouTube, but lack any viable alternatives. The benefits they get with YouTube
with the large audience already using the platform and potential help the
'Suggestions' system on YouTube gives them outweigh the freedom they'd get
from switching platforms.

~~~
zadkey
I agree, there is about to be a large market gap for streaming content
creators. If someone had the team, the skill, and the funding they could
effectively roll out a viable competitor to YouTube.

I'm not sure how it would go exactly, but their advertising could very easily
be centered around dodging the wrongs of YouTube.

~~~
VectorLock
You could do everything YouTube does, but better, and still have a hard time
of it because content creators audiences are still on YouTube

~~~
gvx
There's also the high barrier to entry due to bandwidth and storage: you're
not going to be able to compete with YouTube if you don't offer at least 1080p
streaming which means you have to have a pretty hefty infrastructure in place
before you can launch.

And then the legal issues: as a scrappy new website, you're unlikely to be
able to protect your users from large copyright holders, which in practice
means new YouTube competitors will be even more quick to take down fair use
videos than YouTube to prevent being sued out of existence.

I've been thinking about building something like that for a long time, but I
just don't see how it would be feasible in the current copyright system.

The only solution I see would be sites like Dropout or Nebula(? not too
familiar with it), where the platform is effectively the same as the content
creator. This of course is inaccessible to the vast majority of smaller
creators.

------
danso
It's interesting that Angry Joe got taken down; AFAIK, RedLetterMedia's review
didn't get taken down, and it featured decent chunks of non-trailer footage
(not sure if any of them were 10+ seconds consecutively) [0]. And, like AJ's,
it was a very negative review. I don't doubt AJ was the victim of manual
review, I'm just surprised RLM wouldn't be on CBS's shit list as well.

(and tangentially: both are right; the "Picard" show is depressingly bad and
derivative. I've only watched the first ep, but it had more gratuitous (and
cheap looking) martial arts action than several seasons of TNG.)

[0]
[https://www.youtube.com/watch?v=hfQdf93e63I](https://www.youtube.com/watch?v=hfQdf93e63I)

~~~
ciabattabread
> the "Picard" show is depressingly bad and derivative. I've only watched the
> first ep,

I don’t understand how you can pass judgment on a series based on one episode.

~~~
catalogia
With so many shows to watch and so little time to watch them, most people pass
judgement on series without watching _any_ episodes. Can you earnestly say you
watch two episodes of _every_ series before deciding whether to watch more? I
doubt there is any way you could find time for that; rather you judge most
shows to be unworthy of your time after glancing at the promotional material
at most. Everybody does.

So yes, watching one episode is enough to dismiss a show.

~~~
ghaff
It’s also been discussed that the streaming services are also tending to not
give shows as much of a chance to find an audience and a voice as was often
the case previously.

To the general point there’s so much content out there and I watch relatively
little. I have to find a show that at least looks interesting. And then I’ll
almost certainly drop it after an episode or two if it doesn’t grab me.

------
gkfasdfasdf
Ironically, CBS literally posted the entire first episode for free on YouTube:
[https://www.theverge.com/2020/1/30/21115348/star-trek-
picard...](https://www.theverge.com/2020/1/30/21115348/star-trek-picard-cbs-
all-access-first-episode-free-watch-pilot)

~~~
nkingsy
with ads they make money from

------
zxcvbn4038
CBS All Access needs the publicity - good or bad, Joe guy is doing them a
favor.

Hulu has The Orville which I think has proven definitively that anyone can
take the Star Trek formula and pump out a watchable show. Who needs CBS?

~~~
rriepe
I'd argue that CBS can't, but they didn't really use the Star Trek formula for
Picard. The Orville has definitely shown us it's the ideas which are
cherished, not the IP.

~~~
fullshark
I also think the structure: self contained episodes, is why it works. Old star
trek episodes were like bite sized scifi movies with usually at least one
interesting idea within them. This long form spy thriller serial format is a
drag if the overarching plot isn't really compelling.

------
monadic2
At what point can you file a suit for bad faith DMCA claims?

~~~
j-c-hewitt
You can file a counter claim through Youtube:
[https://support.google.com/youtube/answer/2807684?hl=en](https://support.google.com/youtube/answer/2807684?hl=en)

Generally this should be done under advice of an attorney, because these
counter notices set a ticking clock of ten business days during which the
copyright holder must either sue the Youtuber for copyright infringement or
the complaint will be cancelled. Not all Youtube claims related to copyright
are counter claimable. There is a tendency among people to misjudge their
actual risk and whether or not they infringed, so it is unwise to file these
counter claims without advice from an attorney.

You can also file in your local jurisdiction for declaratory judgment if you
receive a formal cease and desist notice, and if that C&D contains false
claims then the plaintiff may be in trouble. A truly false and malicious DMCA
claim can be countered with a defamation lawsuit as well.

You can also sue someone for any reason ("It's Tuesday! I hate you! I'm suing
you!") at any time, but that doesn't mean that you will win.

Using short clips of the trailer for review purposes is clearly fair use.
Often times, however, Youtubers think fair use protects them more than it
actually does and do go overboard such as taking entire TV episodes and
commenting over them. However different judges have seen the issue differently
in different situations. So, if you really did infringe, but think you didn't,
and file the counter claim, you are doomed, and copyright law is very generous
to victorious plaintiffs.

~~~
monadic2
> because these counter notices set a ticking clock of ten business days
> during which the copyright holder must either sue the Youtuber for copyright
> infringement or the complaint will be cancelled.

What about damages to the target of the claim? It doesn't seem like there's a
penalty for bad-faith claims that wouldn't ever lead to a suit.

~~~
Keverw
Wonder if your claim fell under fair use and it harmed your channel if you
could sue for tortious interference? There's some theme park in New Hampshire
threatening to go after drone operators even though they don't own the private
airspace, however, if it's a business day and full of crowds that a general no
no anyways to fly over people.

Be funny if that guy sued CBS in some small town court, I doubt they'd even
show up though or argue they don't have jurisdiction over them if no offices
there, and I doubt an affiliate would count but maybe. Oh looks like Joe is
from Austin, Texas so a pretty big city then, so not sure if CBS has anything
other than an affiliate owned by third party company, but I know states in the
past said having affiliates create Nexus for sales tax purposes. I was part of
a fitness related affiliate program but never made any money with it years
ago, and my state created one of those click-through nexuses so the company
decided just to kick me out of the program based on the state in my profile.

Then if your tortious interference claim could be valid, and since YouTube has
some processes (including automated ones) that side steps and goes well beyond
what the DMCA requires, I wonder if YouTube along with CBS also would be
opening themself up to additional legal liabilities then.

Be nice if people would stand up to legal bullies more, but sadly the justice
and the legal system are not blind as they say and costs to access so it seems
like unbalanced powers that favor both the government and corporations over
individual citizens.

~~~
j-c-hewitt
Youtube in general is not liable for copyright infringement on content posted
by users.

People love to talk about standing up to legal bullies, but lawyers are
expensive. Copyright law is extremely friendly to plaintiffs and generous in
terms of damages:
[https://www.copyright.gov/title17/92chap5.html](https://www.copyright.gov/title17/92chap5.html)

CBS would totally show up in a small town if they knew that they had a good
chance of winning. Their lawyers are already on salary. It doesn't cost them
anything and they will get a lot of money. They may also just try to get the
venue changed. In fact, it is their duty to enforce their copyright claims, or
they risk their ability to protect their IP in the future. So, it's unwise to
do the equivalent of coating yourself in butter and serving yourself up to be
devoured by Viacom IP attorneys.

In the 2019 case of Epic Games, Inc. v. Lucas in which a 14 year old boy
counter-claimed a copyright claim filed by Epic over the defendant's posting
of Youtube footage involving cheats in Fortnite. While the case did not go all
the way, Epic did successfully extract a punitive settlement from the
defendant. If he had not counter claimed, the lawsuit might have never
happened, or they could have settled it before it was filed.

~~~
darkarmani
> In fact, it is their duty to enforce their copyright claims, or they risk
> their ability to protect their IP in the future.

That's true of trademark, but why do you think that is true of copyright?

~~~
j-c-hewitt
Unlike trademark, you do not lose your copyright registration for failure to
enforce it. However, it makes it a lot easier for prospective defendants if
you have a track record of ignoring infringements. Your registration is not in
danger, but your ability to win as much as possible might be. Even works with
no identifiable copyright owner are not necessarily considered 'abandoned,'
which creates a lot of interesting issues, such as in the case of Google
Books:
[https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article...](https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1214&context=dltr)

The main thing with copyright is not like the risk of trademark dilution: it's
just that not enforcing it makes it easier for defendants to bargain and argue
for lighter penalties.

------
BitwiseFool
It was footage from a trailer so it's not like CBS is losing money from
pirated footage. They give it away freely.

------
nimbius
from TFA this was a manual takedown, meaning CBS had someone in meatspace take
this down. If i had to guess why this happened its two reasons:

\- Joe had a negative review of the show, and made several valid points about
its lackluster writing and dialogue.

\- CBS' streaming service, "All Access" is getting hammered by critics on
reddit and blogs. Even after gobbling up Nickelodeon kids programming its
still underperforming. A week after Picard aired, CBS released the first
episode on Youtube free of charge in order to drum up business.

[https://www.forbes.com/sites/insertcoin/2017/09/25/cbs-
badly...](https://www.forbes.com/sites/insertcoin/2017/09/25/cbs-badly-
misplayed-their-hand-by-making-star-trek-discovery-a-paid-streaming-
exclusive/)

[https://www.theverge.com/2018/1/10/16862278/cbs-all-
access-s...](https://www.theverge.com/2018/1/10/16862278/cbs-all-access-star-
trek-discovery-streaming-service-analysis)

------
sharpneli
Companies typically do this to censor reviews. Is Picard really so crappy of a
show that they have to resort to this?

~~~
deadbunny
Indeed it is.

------
jsilence
Please start using YT alternatives like for example lbry.tv.

~~~
pedrocx486
Sure, but first the content creators I watch need to go there.

~~~
hungaropithecus
Most content creators have little incentive to go there because there's no
money to be made, youtube is monetized by google. Maybe that's for the better
and content creators who don't care for the money (or don't need it or can
afford to share videos for the sake of sharing with the world) will share
their videos outside youtube, and maybe maybe that'll naturally separate the
wheat from the chaff..

------
lostmsu
It has been restored, AFAIK.

~~~
hawkesnest
Maybe because "Angry" Joe Vargas is more recognizable than the
average...uh...Joe.

------
mnm1
The main assholes are Youtube, not CBS. CBS can request shit like this and
they are expected to in today's copyright climate. Youtube clearly does not
believe in fair use. That's what it boils down to. It doesn't matter that fair
use is protected by law or anything because Youtube can do what it wants with
its platform. So fair use is essentially up to the platform. In other words,
it really doesn't exist anymore for people who are not willing to host their
own content.

~~~
wostusername
Google does not have the power to determine if something is fair use or not,
that is up to the courts. You might think something is fair use, and I might
disagree. We are supposed to go to court and have a trial to determine which
one of us is right. Google is not judge and jury, they can't make that
determination.

~~~
jimktrains2
Isn't the issue that they're depriving the user of income based solely on a
non-legal (not not-legal) complaint? If YouTube really justed wanted to have
people Duke it out in court, they wouldn't have their own system that is
massively tilted towards the studios. They're effectively allowing one side to
be judge and jury.

~~~
wostusername
There are two different processes here: the DMCA and ContentID.

If YouTube receives a DMCA request it will take the video down immediately (in
accordance to the law). However, you can counter the DMCA claim at which point
the other party has to either drop it or sue you.

ContentID is the non-legal system which essentially blocks or transfers
monetization (copyright holder's choice) for any detected copyrighted work in
YouTube's database. YouTube developed it to avoid fighting studios.

Since there are no objective standards to determine if something is fair use
or not, instead it's a bunch of factors that are all supposed to be weighted
against each other by a judge, there is no way for YouTube to determine if
something is legal infringement of copyright (Fair Use) or illegal
infringement of copyright. The solution here for YouTube is to be conservative
and not allow any infringement against the rights holder's wishes.

It's not a great system, but I understand why it is the way it is, and I'm not
sure how or even if it could be changed.

------
m463
All this controversy has brought the film to my attention.

Intentional?

------
shadow-banned
I truly believe stuff like this is contributing to the rise of socialism.
There's no nuance left in anything, anymore.

------
sabujp
why is this on hn vs all the other illegal takedowns and youtube drama that
happens on a daily basis? oh because it's star trek.

------
anewguy9000
apologies in antecessum for this post not exploring specifics or explicating a
rigorous knock-down philosophical argument for its conclusion, but f cbs and f
youtube.

------
generalpass
YouTube can do whatever it wants, but it doesn't change the fact that Picard
is DOA.

I can't wait for them to completely destroy every franchise so they are forced
to be creative and come up with something new.

------
thatGuy0000
I think they must have put more effort into getting that review taken down
than they put into the entire series so far.

------
raverbashing
A good reminder to avoid doing free publicity of big copyright content.

Sure, it's fair use, it's what people are talking about etc. Still, it's free
publicity.

If not, content creators should be very aware of possible abuses and should
add anti-abuse language to their contracts, like this:
[https://hacked.com/sony-filed-copyright-claim-man-
licensed-c...](https://hacked.com/sony-filed-copyright-claim-man-licensed-
content/)

~~~
Keverw
I've heard that one popular channel accidentally sent a take down for their
own content once, then some companies just scan for keywords. I forget where
but remember reading that some blog was a take down because some studio ran a
bot looking for keywords and assuming anything that mentions their movie
titles is a download even though that site didn't host an actual downloads of
the movie. So say for example you had a movies review blog, just mentioning
the movie can cause some studios to flag it in bulk without reviewing your
website or considering any fair use.

Then even if you license royalty free music, there's bot's that flag it so you
can to dispute even if you paid since they don't know you got a license, they
just auto assume that you didn't. Then also sound loops so, like Garageband
Loops [0] you are allowed to use them in a larger project, but not the loops
standalone... but some songs use these loops and samples, so say some artist
used a Apple Loop in their song and got popular to be part of ContentID, then
that artist starts flagging content from Apple they never created in the first
place. Sounds like YouTube requires your music doesn't contain third party
licensed royal free stuff within them but sounds like they still get submitted
to YouTube anyways. And this isn't just a Apple Garage Band problem, happens
with other music programs too like FL Studio and a bunch of others. Wouldn't
surprise me if two digital drums (I guess music programs call them "virtual
instruments" sounded too much alike if it would be flagged either, since
remember hearing nothing but white noise got flagged once...

[0] [https://support.apple.com/en-us/HT201808](https://support.apple.com/en-
us/HT201808)

~~~
emmelaich
The white noise was 10 hours of white noise.

Read more here, from the author Sebastian Tomczak

[https://blogs.adelaide.edu.au/adelaidex/2018/01/22/the-
after...](https://blogs.adelaide.edu.au/adelaidex/2018/01/22/the-aftermath-of-
the-white-noise-youtube-copyright-claims-a-qa-with-dr-sebastian-tomczak/)

------
warent
I really dislike DMCA takedowns, but am I the only one who thinks 26 seconds
is actually quite a long time--especially for a product of this caliber? That
represents basically a full teaser trailer.

~~~
legitster
It was a 40 minute video. 26 seconds is barely anything. Not that it should
matter for the purposes of fair use.

> especially for a product of this caliber

Do more valuable IPs get more legal rights? Or is the implication that this
property transcends normal importance?

~~~
henryfjordan
To use copyright material as fair-use you [edit: usually] need to transform
the work or add value in some way. A reaction video where you show the full
trailer and just say "wow" would not be protected. 40 minutes of discussion is
almost certainly enough. There's a balance though, and the more "valuable" or
"hot" the IP is the higher the bar is probably going to be set.

You also have to use as little of the underlying work as possible. If this was
a 30s trailer and he used 26s of it, that's a lot, but again 40m of discussion
on top of that probably warrants it.

~~~
smacktoward
_> To use copyright material as fair-use you need to transform the work or add
value in some way._

This is not true. Transformative use is just one of four factors a court would
look at to determine whether a use is fair or not (see
[https://fairuse.stanford.edu/overview/fair-use/four-
factors/](https://fairuse.stanford.edu/overview/fair-use/four-factors/)). A
use doesn't have to have all four factors apply to it in order to be fair.
Transformative uses are _more likely_ to be judged as fair than non-
transformative ones, but there can be cases where non-transformative uses are
fair.

(And even putting that aside, using a portion of a copyrighted work in order
to create a new, unique work commenting on it could be considered
transformative of the original.)

~~~
henryfjordan
Yes, thank you for clarifying.

I have heard of takedowns / copyright claims on videos because of some song
playing in the background while they film in a public space (think the radio
playing in a store while someone films themselves shopping), so that might be
one case you could argue fair-use without transformation of the underlying
work. I wouldn't ever want to be in that position though.

~~~
Keverw
There's a guy with a YouTube channel called "YouTuber Law" [0] but he quit
uploading about 7 months ago. Some guy from Miami, he seemed pretty cool for a
lawyer too since I figured most wouldn't even want to touch YouTube or show
their face on YouTube so seemed like a very likable relatable guy, and seemed
to be using tech for advantaged to build up his brand. Looks like he's still
updating his playlists though even though inactive, was a bit worried
something might have had happened to him.

I forget the specific video, but I know one of them he mentioned something
about incidental use. So a short amount of music picked up in the background
could be ok, but you on propose playing music yourself or adding it in via
editing could be looked at different... So a TV in the background at a noisy
bar would be viewed differently than a TV on in your own living room that you
can contorl while you ramble on about a topic. I guess that's mostly though
for people who do vlogging about their life though. But it's a balancing and
judgement call, probably depends on how loud the music is too... Think say
vloggers who cover theme parks for example, probably music and a lot of other
ambient noises but the music isn't the main focus. So maybe you want to say
something to your vlog but maybe it's better to wait to your at another spot
if possible.

[0]
[https://www.youtube.com/channel/UCJgUkWtBuxh-2jK0aBWoSXw/vid...](https://www.youtube.com/channel/UCJgUkWtBuxh-2jK0aBWoSXw/videos)

------
riffic
_edit_ obviously I didn't catch a detail in my comment. Please stop downvoting
this.

Automation fails to discern fair use. The YouTuber should file a DMCA
counterclaim, but many youtubers are unsophisticated enough in copyright law
to do so.

~~~
ru552
This specifically has nothing to do with automation. The article clearly
states that it was a manual take down initiated by a person.

~~~
riffic
Content ID plus an unsophisticated overworked "manual review" step may as well
just be considered automated from a high level view.

Who's to say the "person" doing the manual review isn't just a Mechanical
Turker?

