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      NASCAR Fan-Friendly Copyright Claims Needed Extra Boost to Pacify Fans

      news.movim.eu / TorrentFreak · Thursday, 21 December - 07:37 · 4 minutes

    Recurring news that another established and popular content creator faces copyright issues on YouTube is something the world will have to get used to.

    Developing copyright law tends to go in one direction and with most social media platforms today showing less willingness to fight, some types of user-generated content may be in for a more restricted ride.

    On Wednesday, NASCAR fanatic and popular YouTuber Brock Beard sounded dejected in a post published on X. Two screenshots, featuring copyright claims against a long list of his older videos, were headed by, “I’m getting too old for this.”

    By the end of the day, he probably felt 21 again.

    “NASCAR Community in Shock”

    An article on Essentially Sports reporting on the complaints begins by stressing the importance of the NASCAR community. Whether at the track itself or discussing the sport online, fans are an integral part of the experience. When they’re happy, everyone is happy, and when Brock Beard suffers hard times, his fans are right there with him.

    So what was Brock Beard too old for exactly, and why were his fans in shock?

    According to the report, the YouTube copyright claims threaten Beard’s social media presence. While Beard is also the founder and editor of NASCAR fan-site Lastcar.info , a social media exodus could damage his ability to stay close to his fans while doing what he loves; putting out popular videos, one of which reportedly attracted a million views.

    Popular Content vs. Copyright Claims

    Copyright claims come in all shapes and sizes but in general terms, genuine claims and blatantly bogus claims can often be verified in a few seconds, at least to the standard required by the DMCA. That should provide fairly clear guidance on whether content should’ve been taken down or left online.

    The broad space between these two extremes is an entirely different matter and on YouTube, things can become even more complicated. Content ID, for example, can allow infringing content to stay online, when previously a claim would’ve seen the content taken down. As reproduced in the image below, all claims posted to Twitter show that the allegedly infringing videos were considered unsuitable for monetization.

    At least as far as the truncated titles are useful, the videos for which monetization isn’t allowed were not taken down from YouTube. Why Sears Point Is Awesome , Johnny and The Fast White Car , and Darrell Waltrip’s Victory Tour 2000 , are among those most easily identified. All three were uploaded over three years ago and judging by Beard’s reaction, the monetization ban was probably something new.

    Nature of the Videos

    With running times of 45 to 56 minutes, these videos are essentially fan-made documentaries that clearly involved significant effort, not to mention expert knowledge. Importantly, NASCAR fans find them engaging and entertaining; they actually enhance their enjoyment of the sport.

    The videos feature original NASCAR race footage, obtained from official broadcasts or recordings of those broadcasts, accompanied by a running commentary, presumably provided by Brock Beard himself. In the descriptions of the videos are detailed credits, with some linking to spreadsheets crediting dozens of sources on YouTube from where the clips used in the documentaries were obtained.

    Why the documentaries were left alone for three years is typically a matter for the copyright owner. However, a thread on Twitter suggests that NASCAR’s copyright claims are affecting others too, with one user suggesting that the claims may be linked to NASCAR Productions’ new state-of-the-art facility which is dedicated to content creation.

    Ultimately, the reasons for the claims are unimportant; copyright owners have the right to take action against unauthorized use of their content whenever they like, albeit with a few exceptions.

    What About Fair Use?

    Whether the use of the NASCAR copyrighted content enjoys protection under the doctrine of fair use is a matter for a court to decide and for hardcore gamblers to speculate on.

    Google’s copying of 11,500 lines of Oracle’s code ultimately concluded in favor of the former while Donald Trump has managed to stretch out his fair use defense, concerning 40 seconds of the song Electric Avenue, for more than three years .

    That being said, the first factor of fair use – the purpose and character of the use – balances various facts, including whether there was a commercial component to the use. While not conclusive in its own right, a commercial component tends to weigh against a finding of fair use.

    Could’ve Been So Much Worse

    So to sum up, the copyright claims filed against the numerous videos didn’t cost Brock Beard his YouTube account, they simply notified him that the videos wouldn’t generate revenue moving forward. While that wasn’t well-received, the all-important videos are alive and well.

    From the perspective of a regular fan simply passing by on YouTube, nothing has been lost. If there are concerns about revenue being denied moving forward, that raises questions of whether commercial use of content requires an official license, or whether gambling on a fair use defense is a reliable option when things go wrong.

    In light of some other rightsholders deleting videos resulting in immediate strikes, and entire accounts being shut down as a result, things could’ve been so much worse. And then, seemingly out of nowhere, things could hardly get much better.

    Such a positive outcome will be welcomed by fans of the sport and if NASCAR is happy too, what’s not to like?

    Errors, potentially. But everyone makes those.

    From: TF , for the latest news on copyright battles, piracy and more.

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      Internet Archive: Digital Lending is Fair Use, Not Copyright Infringement

      news.movim.eu / TorrentFreak · Monday, 18 December - 19:30 · 4 minutes

    IA In 2020, publishers Hachette, HarperCollins, John Wiley and Penguin Random House sued the Internet Archive (IA) for copyright infringement, equating its ‘Open Library’ to a pirate site.

    IA’s library is a non-profit operation that scans physical books, which can then be lent out to patrons in an ebook format. Patrons can also borrow books that are scanned and digitized in-house, with technical restrictions that prevent copying.

    Staying true to the centuries-old library concept, only one patron at a time can rent a digital copy of a physical book for a limited period.

    Mass Copyright Infringement or Fair Use?

    Not all rightsholders are happy with IA’s scanning and lending activities. The publishers are not against libraries per se, nor do they object to ebook lending, but ‘authorized’ libraries typically obtain an official license or negotiate specific terms. The Internet Archive has no license.

    The publishers see IA’s library as a rogue operation that engages in willful mass copyright infringement, directly damaging their bottom line. As such, they want it taken down permanently.

    The Internet Archive wholeheartedly disagreed with the copyright infringement allegations; it offers a vital service to the public, the Archive said, as it built its legal defense on protected fair use.

    After weighing the arguments from both sides, New York District Court Judge John Koeltl sided with the publishers. In March, the court granted their motion for summary judgment, which effectively means that the library is indeed liable for copyright infringement .

    The judgment and associated permanent injunction effectively barred the library from reproducing or distributing digital copies of the ‘covered books’ without permission from rightsholders. These restrictions were subject to an eventual appeal, which was announced shortly thereafter.

    Internet Archive Files Appeal Brief

    Late last week, IA filed its opening brief at the Second Circuit Court of Appeals, asking it to reverse the lower court’s judgment. The library argues that the court erred by rejecting its fair use defense.

    Whether IA has a fair use defense depends on how the four relevant factors are weighed. According to the lower court, these favor the publishers but the library vehemently disagrees. On the contrary, it believes that its service promotes the creation and sharing of knowledge, which is a core purpose of copyright.

    “This Court should reverse and hold that IA’s controlled digital lending is fair use. This practice, like traditional library lending, furthers copyright’s goal of promoting public availability of knowledge without harming authors or publishers,” the brief reads.

    A fair use analysis has to weigh the interests of both sides. The lower court did so, but IA argues that it reached the wrong conclusions, failing to properly account for the “tremendous public benefits” controlled digital lending offers.

    No Competition

    One of the key fair use factors at stake is whether IA’s lending program affects (i.e., threatens) the traditional ebook lending market. IA uses expert witnesses to argue that there’s no financial harm and further argues that its service is substantially different from the ebook licensing market.

    IA offers access to digital copies of books, which is similar to licensed libraries. However, the non-profit organization argues that its lending program is not a substitute as it offers a fundamentally different service.

    “For example, libraries cannot use ebook licenses to build permanent collections. But they can use licensing to easily change the selection of ebooks they offer to adapt to changing interests,” IA writes.

    The licensing models make these libraries more flexible. However, they have to rely on the books offered by commercial aggregators and can’t add these digital copies to their archives.

    “Controlled digital lending, by contrast, allows libraries to lend only books from their own permanent collections. They can preserve and lend older editions, maintaining an accurate historical record of books as they were printed.

    “They can also provide access that does not depend on what Publishers choose to make available. But libraries must own a copy of each book they lend, so they cannot easily swap one book for another when interest or trends change,” IA adds.

    Stakes are High

    The arguments highlighted here are just a fraction of the 74-page opening brief, which goes into much more detail and ultimately concludes that the district court’s judgment should be reversed.

    In a recent blog post, IA founder Brewster Kahle writes that if the lower court’s verdict stands, books can’t be preserved for future generations in digital form, in the same way that paper versions have been archived for centuries.

    “This lawsuit is about more than the Internet Archive; it is about the role of all libraries in our digital age. This lawsuit is an attack on a well-established practice used by hundreds of libraries to provide public access to their collections.

    “The disastrous lower court decision in this case holds implications far beyond our organization, shaping the future of all libraries in the United States and unfortunately, around the world,” Kahle concludes .

    A copy of the Internet Archive’s opening brief, filed at the Second Circuit Court of Appeals, is available here (pdf)

    From: TF , for the latest news on copyright battles, piracy and more.

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      Artists may “poison” AI models before Copyright Office can issue guidance

      news.movim.eu / ArsTechnica · Friday, 3 November - 18:25 · 1 minute

    An image OpenAI created using DALL-E 3.

    Enlarge / An image OpenAI created using DALL-E 3. (credit: OpenAI )

    Artists have spent the past year fighting companies that have been training AI image generators—including popular tools like the impressively photorealistic Midjourney or the ultra-sophisticated DALL-E 3 —on their original works without consent or compensation. Now, the United States has promised to finally get serious about addressing their copyright concerns raised by AI, President Joe Biden said in his much-anticipated executive order on AI , which was signed this week .

    The US Copyright Office had already been seeking public input on AI concerns over the past few months through a comment period ending on November 15. Biden's executive order has clarified that following this comment period, the Copyright Office will publish the results of its study. And then, within 180 days of that publication—or within 270 days of Biden's order, "whichever comes later"—the Copyright Office's director will consult with Biden to "issue recommendations to the President on potential executive actions relating to copyright and AI."

    "The recommendations shall address any copyright and related issues discussed in the United States Copyright Office’s study, including the scope of protection for works produced using AI and the treatment of copyrighted works in AI training," Biden's order said.

    Read 18 remaining paragraphs | Comments

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      Jake Paul Fight Lasted 119 Seconds, H3 Podcast Copyright Battle Hits 124 Weeks

      news.movim.eu / TorrentFreak · Sunday, 1 October - 16:46 · 5 minutes

    h3-jake In our brave new world where millions of ordinary people are copyright holders of snaps they publish to social media or videos they upload to YouTube, awareness of copyright law is at an all-time high.

    Evidence is easily found on Reddit, where users of /r/copyright and similar subs answer questions including: “Can I print t-shirts with Batman on the front if I only do a few and give them away?” and “Is it copyright if nobody knows I copied a song and changed it so it sounds nothing like the original?”

    Similar gems are a regular occurrence on YouTube. Who hasn’t seen copies of well-known tracks uploaded in full and protected by the statement: “I do not own this song. Full credits go to the copyright owner. No copyright infringement intended.”

    And then there’s the increasing number of channels posting ‘copyright disclaimers’ citing Section 107 of the Copyright Act 1976, stating that since everything on the channel is ‘fair use’, channel owners are exempt and can never be sued.

    While exemption is an interesting proposition, the image above appears to show a channel going further still; while happily claiming fair use ‘protection’ for themselves, they warn of legal penalties should anyone else use “any part” of their video.

    Success, Fair Use and Lawsuits

    With lots of hard work and even more luck, these channels could one day be as successful as the award-winning H3 Podcast . Created by Ethan and Hila Klein, the channel has over 2.93 million subscribers and almost 1.2 billion views.

    Not only are the Klein’s experts in growing a brand and popularizing their work, they are also very knowledgeable about copyright law, and particularly well-versed when it comes to fair use. Unfortunately, that hasn’t stopped them from being sued; of the last seven years or so, at least three years have been spent defending copyright infringement lawsuits.

    The Klein’s emerged victorious from a lawsuit in 2017 after mounting a successful fair use defense . That wasn’t without its traumas; copyright lawsuits can be extremely expensive and the Kleins’ lives may have taken a different turn had fans not donated $170,000 towards their defense .

    119 Seconds of Boxing, 124 Weeks of Litigation (and counting)

    It’s not uncommon for the H3 Podcast to discuss current events, providing the type of commentary and criticism that allows for the limited use of copyrighted content without having to obtain prior permission. In April 2021, in the wake of Jake Paul’s 119-second knockout of former UFC fighter Ben Askren, H3 Podcast declared the fight “a disaster” in a video on YouTube, alongside footage of the fight to back up their claims.

    Event promotor Triller responded with a copyright infringement lawsuit demanding $50 million in damages. Four months later, H3 Podcast’s attorneys filed an extremely detailed motion to dismiss, most likely at considerable expense.

    If those ‘fair use immunity’ disclaimers on YouTube actually worked, H3 Podcast wouldn’t be spending money defending the use of a clip that represents just a fraction of a four-hour broadcast. Admittedly, things were complicated somewhat by Ethan’s claim on the show that he hadn’t actually paid for the fight.

    Indeed, the clip shown on the YouTube podcast was actually a pirated copy that Ethan had uploaded to a different YouTube channel as an unlisted video. Of course, Triller’s legal team seized the opportunity to pile on the pressure.

    Does a URL in a Video Infringe Copyright

    With a subtle shift in tactics, Triller said it had no interest in stifling H3’s commentary and criticism, in a video that had already generated a million views. Triller even implied that under slightly different circumstances, the clip of the fight shown in the commentary video could’ve been shown legally, if it wasn’t for the defendants’ “negligence, willfulness, or maliciousness, or some combination thereof.”

    The image below shows a screenshot of that video, with the offending information redacted.

    The fact that the URL of the unlisted video appeared in H3’s commentary piece (‘distribution video’) allowed Triller to claim that the video facilitated the infringements of those who watched the fight on the unlisted channel, which relied on H3’s directly infringing upload.

    Order on H3’s Motion to Dismiss

    With the lawsuit now into its third year, the court has just ruled on a motion to dismiss filed by H3. One aspect of that motion argued that Triller’s claims fail because the unlisted fight video was ‘fixed’ after the broadcast was transmitted. The court found that since Triller alleged that H3 had a copy of the video, but wasn’t on the list of those authorized to obtain the broadcast, at this stage, the company’s allegations are sufficient.

    The court’s handling of the URL in the unlisted video, which appeared in the commentary video unredacted, went as follows:

    Defendants made the Unlisted Video independently accessible by displaying its URL in the Distribution Video. Anyone with that URL was able to access the Unlisted Video. At the time of the briefing of the Motion, it appears that the Unlisted Video had been viewed 65 times.

    Although the Distribution Video displayed the URL in small font, and although no one spoke on the Distribution Video urging viewers to watch the Unlisted Video or read the URL, the URL was visible. The Distribution Video was viewed more than one million times, far more times than the Unlisted Video.

    However, drawing every reasonable inference in Plaintiff’s favor, and recognizing that evidence of Defendants’ claimed intent is not to be considered in considering a motion to dismiss, the allegations of the [Second Amended Complaint] are sufficient to present the inference that Defendants created the Unlisted Video and made it publicly accessible for reasons unrelated to the critical commentary in the Distribution Video.

    In conclusion, the motion to dismiss was denied in part and granted in part, meaning the case will continue. For how long isn’t clear, but for YouTubers preparing their next counternotice in response to a copyright claim, there’s considerable food for thought.

    While it’s convenient to claim that use of copyrighted content is ‘fair’, it doesn’t necessarily follow that it is. Even in cases where everything points towards a finding of fair use, there is nothing to stop a rightsholder from filing a lawsuit, no obvious timeframe to discover who was right, and no miracle way of paying attorneys’ fees.

    Millions of people rely on fair use every single day, but it’s a legal defense to be called upon sparingly, not a magic YouTube spell for everyday use.

    The order on H3’s motion to dismiss is available here ( pdf )

    From: TF , for the latest news on copyright battles, piracy and more.

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      Trump Doesn’t Deserve Copyright Win Over Eddie Grant But Still Might Get One

      news.movim.eu / TorrentFreak · Monday, 18 September, 2023 - 20:08 · 5 minutes

    Donald Trump Former President Trump is one of the most interesting characters to ever appear on the American political landscape.

    Trump’s ability to attract and generate controversy will go down in history, as will his numerous appearances in copyright infringement lawsuits.

    Musician Eddy Grant filed a complaint against Trump in 2020 and three years later there’s little positivity to report for anyone involved.

    Ignorance and Emotion Fuel Fire

    The background to the lawsuit can be summarized as follows: during the presidential election campaign, someone affiliated with Trump and his campaign posted this animation on Twitter depicting a struggling Joe Biden.

    The Trump campaign’s decision to include the 1982 hit ‘Electric Avenue’ as background music infuriated Eddy Grant, the British singer-songwriter behind the track. While his song being used without permission provided Grant with a legal avenue for retaliation, court filings made it clear that Grant was deeply offended that his music was being used to promote Trump’s campaign.

    A confident Trump recently claimed he could end the war in Ukraine in 24 hours. That sits in stark contrast to the record in this case which currently consists of 108 filings spanning over 36 months.

    Three Years of Toxic Waste

    While Grant is a principled man, he doesn’t come off as unreasonable. A short phone call from Trump, freshly enlightened after 10 minutes on Wikipedia learning about the Brixton Riots, what caused them, and why the use of Electric Avenue was never meant to offend, couldn’t have hurt. Bridges can always be built towards common ground; the parties’ shared appreciation of Chuck Berry, for example, or how Grant survived a heart attack in 1971 and may be willing to share some tips.

    Instead, Trump rejected Grant’s offer to settle the case. In a motion to dismiss, the soon-to-be most powerful man in the world, rich beyond most people’s imaginations, told Grant he would get nothing for his involuntary contribution to the presidential campaign. Because Grant had created the track for entertainment purposes and Trump had used it for political commentary, that was a “fundamentally different and new purpose” and covered by the doctrine of fair use.

    Use Was Not Fair

    In October 2021, U.S. District Judge John Koeltl said each of the fair use factors weighed in favor of Grant. The Trump campaign’s use of Electric Avenue was little more than “wholesale copying” and it had no license or permission in place to render that legal.

    However, in a move that validated calls for justice and social equality found in many of Grant’s songs, Trump’s legal team reminded the musician that some people remain more equal than others.

    “Plaintiffs’ claims against Donald J. Trump are barred, either in whole or in part, by Presidential absolute immunity.”

    What was said during the subsequent deposition of Donald Trump is not part of the public record but the fact that a deposition took place at all is both remarkable and by now, fittingly depressing.

    Grant’s Motion for Summary Judgment

    On September 15, 2023, the plaintiffs and defendants filed motions for summary judgment at a Manhattan federal court in an effort to avoid the case going to trial. Grant’s motion states that despite the earlier rejection of a fair use defense, Trump’s team remain undeterred.

    “Defendants will rely on the affirmative defense of fair use, which the Court rejected at the pleading stage. Discovery has revealed unequivocally that Defendants’ use of the Works was not transformative and does not comport with any theory of the fair use doctrine,” the motion reads.

    “The defense, which Defendants have the burden of proving, should be rejected again as a matter of law and Plaintiffs’ motion that Defendants committed copyright infringement should be granted in its entirety.”

    For reasons that are not immediately obvious, large sections of the motion are redacted, especially those relating to the deposition of Dan Scavino, Trump’s social media advisor.

    In summary, Grant believes he’s on solid ground and $300,000 in potential damages can’t be nullified by a defense of fair use.

    Trump’s Motion for Partial Summary Judgment

    The motion from the defense opens with the plaintiff’s assertion that the animation in question, provided to the Trump team by a third party, infringed two copyrights; a sound recording and composition in the Electric Avenue backing music. But then the following:

    “There can be no material dispute, however, that Plaintiffs only plead a copyright registration covering the composition (i.e., the written music and lyrics) of Electric Avenue, registered at around the time of its publication in 1983,” the motion reads.

    “Plaintiffs nevertheless claim that they own a valid copyright registration covering the sound recording (i.e., the fixation of a series of musical and spoken sounds to a ‘phonorecord’) of Electric Avenue by virtue a copyright registration for a ‘greatest hits’ album (which they described to the Copyright Office as a ‘compilation’) that contains the song Electric Avenue.”

    To put things mildly, that isn’t ideal for Grant. As the plaintiffs explain, the Copyright Office’s position on compilations is that registrations do not cover their constituent parts, unless they were unpublished at the time of registration.

    “Because Electric Avenue was indisputably published long before the registration that Plaintiffs assert covers its sound recording, Plaintiffs failed to plead and produce a valid copyright registration for the sound recording of Electric Avenue.

    “Therefore, their claim for infringement of the Electric Avenue sound recording (Count II of their Complaint) must be summarily dismissed, as it is axiomatic that Plaintiff own and plead a valid copyright registration covering the alleged infringed work is a prerequisite for maintenance of a federal copyright infringement action,” the motion adds.

    With no valid copyright registration covering the sound recording, Count II of the complaint must be dismissed, Trump’s legal team conclude.

    Lawsuit Hurts All

    On the basis that fair use is a legal defense, not immunity from legal action, the Trump team’s actions represent yet another chilling effect on those who rely on fair use to conduct research, teach, learn or report on current events.

    The message here is that if a third party is wealthy and stubborn, a fair use defense that has no realistic chance of success can be dragged out for years until the rightsholder runs out of money, or indeed the will to carry on.

    In this case, a fundamental administrative issue could mean that the court has no other choice than to side with those who benefited from a copyright work, refused to pay for that right, and then prevailed through sheer financial staying power and pure luck. That fair use was the vehicle adds insult to injury.

    From: TF , for the latest news on copyright battles, piracy and more.

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      Stable Diffusion copyright lawsuits could be a legal earthquake for AI

      news.movim.eu / ArsTechnica · Monday, 3 April, 2023 - 11:45

    Image generated by Stable Diffusion with the prompt “Mickey Mouse in front of a McDonalds sign.”

    Image generated by Stable Diffusion with the prompt “Mickey Mouse in front of a McDonalds sign.” (credit: Timothy B. Lee / Stable Diffusion)

    The AI software Stable Diffusion has a remarkable ability to turn text into images. When I asked the software to draw “Mickey Mouse in front of a McDonald's sign,” for example, it generated the picture you see above.

    Stable Diffusion can do this because it was trained on hundreds of millions of example images harvested from across the web. Some of these images were in the public domain or had been published under permissive licenses such as Creative Commons. Many others were not—and the world’s artists and photographers aren’t happy about it.

    In January, three visual artists filed a class-action copyright lawsuit against Stability AI, the startup that created Stable Diffusion. In February, the image-licensing giant Getty filed a lawsuit of its own.

    Read 29 remaining paragraphs | Comments

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      Publishers beat Internet Archive as judge rules e-book lending violates copyright

      news.movim.eu / ArsTechnica · Monday, 27 March, 2023 - 17:22

    Publishers beat Internet Archive as judge rules e-book lending violates copyright

    Enlarge (credit: nicolamargaret | E+ )

    On Friday, a US district judge ruled in favor of book publishers suing the Internet Archive (IA) for copyright infringement. The IA’s Open Library project —which partners with libraries to scan print books in their collections and offer them as lendable e-books—had no right to reproduce 127 of the publishers’ books named in the suit, judge John Koeltl decided.

    IA's so-called "controlled digital lending" practice "merely creates derivative e-books that, when lent to the public, compete with those [e-books] authorized by the publishers,” Koeltl wrote in his opinion.

    Publishers suing—Hachette, HarperCollins, Penguin Random House, and Wiley—had alleged that the Open Library provided a way for libraries to avoid paying e-book licensing fees that generate substantial revenue for publishers. These licensing fees are paid by aggregators like OverDrive and constitute a “thriving” market that IA “supplants,” Koeltl wrote. Penguin’s e-book licensing generates $59 million annually, for example.

    Read 28 remaining paragraphs | Comments

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      New UFC Copyright Lawsuit Rejects Fair Use Defense For Documentary Makers

      news.movim.eu / TorrentFreak · Saturday, 20 August, 2022 - 14:50 · 5 minutes

    bisping The UFC’s reputation as the world’s leading mixed martial arts promotion is the result of almost three decades of hard work and unwavering dedication to combat sports.

    One way or another, grudgingly or not, every MMA fan owes the UFC a debt of gratitude. But there’s a corporate side to the UFC that’s much less palatable and, in many cases, highlights the company’s absolute reliance on the exploitation of IP rights.

    Most professional MMA fighters want to fight in the UFC but complaints over poor pay are increasingly common. Contracts that ban fighters from being independently and visibly sponsored at the most lucrative times are another point of contention. Add in training camp bills and other expenses, some fighters say they barely break even. The UFC claims that fighters always get the deal they signed up for, but the balance of power is rarely equal.

    If fighters underperform, they’re out, but the contacts they sign grant company-related image rights to the UFC until the world comes to an end – literally. If fighters do well under contract but want to leave or make money in another sport, people not called McGregor needn’t apply. Whatever happens, the UFC can put any fighter in a videogame 5,000 years from now and still have permission to use their likeness, complete with licensed tattoos.

    The reasoning behind these perpetual licenses goes beyond the UFC’s desire to grab most of the money. The UFC doesn’t employ any fighters, they’re technically independent contractors, so as far as fight-capable flesh-and-blood is concerned, the UFC has no obvious assets. The UFC doesn’t manufacture anything either, at least not in the traditional sense.

    What the UFC does have is lots of smart executives, an extraordinarily valuable brand, equally lucrative trademarks, and an extensive copyright-protected back catalog that documents the history of MMA in the United States and beyond. The library continues to grow every week with new and exclusive content, meaning that there’s always something fresh to broadcast or make available on license.

    The bottom line is that without its intellectual property, the UFC wouldn’t even be called that anymore. That’s why a company who used UFC footage without a license has prompted a new big-money copyright lawsuit.

    Bisping: The Michael Bisping Story

    Born in Manchester, England, Michael Bisping is a former UFC Middleweight Champion. He was rightfully inducted into the UFC’s Hall of Fame in 2019 and like many fighters has interesting tales to tell. At this very moment the documentary ‘Bisping: The Michael Bisping Story’ is available to stream on dozens of platforms but despite UFC boss Dana White actually being in it, the MMA promoter is no supporter.

    In a copyright infringement complaint filed at a California district court this week, Zuffa LLC (d/b/a UFC) names Canadian company 2107697 Alberta Ltd (d/b/a Score G Productions), Canadian Adam Scorgie, Electric Panda Entertainment, and Does 1 through 10 as defendants.

    UFC says it has 675 million fans who enjoy 40 UFC events every year. UFC programming is broadcast in 175 countries and territories to 1.1 billion households in 40 languages, via the internet, cable, and satellite. UFC’s VOD platform, UFC Fight Pass, offers thousands of fights, events, and original content all over the world. If people want access to content, UFC will license it to them.

    “Given that UFC’s business depends in large part on its intellectual property and, more specifically, the copyrights it holds, it is not surprising that UFC licenses fight clips — including, of particular relevance here, ‘fight finishes,’ i.e., the final few seconds before the knockout, technical knockout, submission, etc,” the UFC complaint reads.

    “And, indeed, many customers, including other filmmakers, have licensed UFC’s clips through this channel. But not Score G. Unable to make a compelling presentation about Michael Bisping on its own, Score G decided to exploit UFC’s intellectual property without permission or obtaining a license for its use.”

    The complaint alleges that 19 minutes of the Bisping documentary is UFC fight footage, culled from 24 different UFC registered copyright works and displayed via 160 short clips. The UFC describes the extent of the unlicensed use as “astounding”.

    Bisping Told UFC About the Documentary

    Bisping still commentates for the UFC, so when he mentioned the documentary to a UFC producer, the former champion was encouraged to have Score G contact the UFC to discuss licensing. That didn’t happen.

    “Score G never even approached UFC to let UFC know what it was doing. Evidently, Score G believes that it did not need to license the Broadcasts from UFC because the film is a documentary,” the UFC’s complaint reads.

    Whether a fair use conversation actually took place is unclear, but the UFC says the strategy won’t work here. Documentary makers regularly license UFC content, and the UFC licenses content for use in its own broadcasts too.

    “[I]f Bisping is fair use, then any network, studio or producer could make a documentary about UFC, and devote most of the documentary to simply rebroadcasting UFC fights, interviews, and the like — all without permission from UFC,” the company warns.

    The documentary is available digitally for rent or purchase on Amazon, DirecTV, iTunes, Microsoft, Google Play, Redbox, Spectrum, Vudu/Fandango, and YouTube. There are also plans to air the documentary on TV and distribute via other streaming platforms. The UFC is not thrilled about that given the circumstances.

    UFC is Not Suing Bisping Himself

    The complaint names Michael Bisping as a producer but the UFC accuses him of nothing. As for the other defendants, they all stand accused of copyright infringement or contributory copyright infringement, depending on which parties created the documentary and/or financed it.

    The UFC lists almost two dozen copyrighted UFC events as sources for the clips in the documentary, describing the defendants’ infringement as willful. For each work the UFC demands maximum statutory damages of $150,000.

    The UFC supplements these infringement claims with corresponding claims for violations of the DMCA’s anti-circumvention provisions. The clips used in the documentary are reportedly high quality, so there’s a suspicion the documentary makers may have ripped them from Fight Pass or another source. Since all UFC content is protected, UFC believes that violations of 17 U.S.C. § 1201 must have taken place.

    The UFC also seeks an injunction to prevent further infringement but any suspension of the documentary could also hurt Bisping, a loyal, long-term business partner.

    As for arguments for and against fair use, it’s much too early to say, but a loss could potentially cause damage to the wider UFC licensing business. The company would never risk that so it’s probably confident that an early win by submission is a foregone conclusion.

    The UFC complaint can be found here (pdf)

    From: TF , for the latest news on copyright battles, piracy and more.

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      DMCA Subpoena to Unmask Twitter User Hits Fair Use & Constitutional Roadblock

      news.movim.eu / TorrentFreak · Thursday, 23 June, 2022 - 06:34 · 8 minutes

    censored Around October 2020 a Twitter user called ‘ MrMoneyBags ‘ began posting critical messages targeting billionaires.

    Brian Sheth, the former President of Vista Equity Partners, a private equity fund based in Austin, Texas, received special attention. MrMoneyBags posted six tweets accompanied by photos, with added commentary relating to Sheth’s wealth and his alleged lifestyle.

    “Brian Sheth has upgraded in his personal life. The only thing better than having a wife … is having a hot young girlfriend,” said MrMoneyBags, referencing a photo of a woman in a bikini and high heels.

    Other tweets continued along the same lines, sometimes hinting at an extramarital affair between the woman and Sheth. Soon after and in mysterious circumstances, copyright law entered the equation.

    DMCA Takedowns Followed by DMCA Subpoena

    On October 29, 2020, a business entity called Bayside Advisory LLC contacted Twitter stating that since it owns the copyrights in the six photos, they should be taken down under the DMCA. Twitter later fulfilled its obligations under copyright law by removing them but Bayside was only just getting started.

    After the DMCA takedowns were sent to Twitter, Bayside registered copyrights in the photos, went to court, and obtained a DMCA subpoena requiring Twitter to hand over information sufficient to identify MrMoneyBags, thereby removing their anonymity.

    Twitter objected to the subpoena, arguing that disclosure would undermine its user’s First Amendment rights. The company also expressed concern that via the DMCA subpoena, copyright law was being used to suppress criticism or rumors of extramarital affairs.

    Furthermore, Twitter said that Bayside was in no position to claim copyright infringement to obtain the details of the alleged infringer (MrMoneyBags). Since the speech attached to the photographs constituted fair use, there was no infringer to identify.

    Twitter’s motion to quash the subpoena was met with opposition from Bayside. In response Magistrate Judge Donna Ryu issued an order offering MrMoneyBags an opportunity to anonymously file evidence in support of Twitter and to argue that the photos were used on a fair use basis. The court received no response.

    The Judge noted that the lack of a “well-developed record” in the case meant that a finding of non-infringement based on fair use wasn’t possible without evidence from MrMoneyBags. As a result, Bayside’s motion to compel was granted in late 2021 but Twitter objected and declined to hand over MrMoneyBags’ details.

    Twitter Moves to Overturn Magistrate’s Order

    In January 2022, the case was reassigned to District Judge Vince Chhabria and within weeks the Electronic Frontier Foundation and ACLU Foundation of Northern California filed an amicus brief , arguing that the magistrate’s ruling “sidestepped the First Amendment” when it focused solely on whether MrMoneyBags’ tweets made fair use of the photos.

    “Narrowing the inquiry to focus exclusively on whether copyright infringement occurred incorrectly allows the nature of the claim to drive the analysis, rather than the nature of the speech at issue,” the brief noted.

    Noting that the tweets appeared to be “noncommercial, transformative, critical commentary — classic fair uses,” the brief argued that even if Bayside had a viable infringement claim, it could not show that unmasking the Twitter user was truly necessary to advance its interests, and that those interests outweighed the harm that would result.

    Public Citizen later submitted a brief that supported Twitter and similar platforms to defend the First Amendment rights of their users ( pdf ) .

    A brief submitted by the Copyright Alliance was mainly concerned with keeping a tight rein on existing practices for dealing with copyright infringement disputes. One part noted that MrMoneyBags could have taken “the simple step” of submitting a DMCA counter-notice if they believed their use of the photos was fair ( pdf ) .

    Of course, that would’ve meant MrMoneyBags’s real name and address being handed to Bayside months earlier. It would’ve have negated the need for this entire case, which was clearly aimed at protecting his identity from the shadowy Bayside entity and whoever is pulling the strings behind the scenes.

    As it later turned out, Bayside’s dubious nature played a major role in tainting its own case.

    Judge Chhabria Sides With Twitter

    In an order handed down this week, Judge Chhabria first challenges Bayside’s assertion that a provision in the DMCA subpoena process divests the court of authority to consider the merits of a copyright claim (or issues of First Amendment privilege) when faced with a motion to compel or quash a DMCA subpoena.

    “Bayside’s reading of the DMCA raises serious constitutional concerns. After all, it is not enough to say that a speaker could assert their right to anonymity after their identity has been revealed; at that point, the damage will have been done. Fortunately, the statute does not compel (or permit) this result,” Judge Chhabria writes.

    A recipient of a DMCA subpoena may move to quash it on the basis that the subpoena would require disclosure of material protected by the First Amendment, his order clarifies.

    “Bayside next argues that, to the extent MoneyBags has any First Amendment interest in this case, it is wholly accounted for through copyright’s fair use analysis, which allows the public to use copyrighted works in certain circumstances without facing liability,” the Judge continues.

    “But while it may be true that the fair use analysis wholly encompasses free expression concerns in some cases, that is not true in all cases — and it is not true in a case like this. That is because it is possible for a speaker’s interest in anonymity to extend beyond the alleged infringement.”

    Addressing Bayside’s assertion that MrMoneyBags’ absence from the case dooms Twitter’s motion, the Judge disagrees. His appearance would’ve been helpful but wasn’t absolutely necessary since Twitter’s interest in the dispute aligns with his – both have an interest in MrMoneyBags’ ability to speak his mind on the Twitter platform without facing retaliation.

    Hiring a lawyer to litigate a copyright claim can be very expensive too, so out of concern, a speaker may opt to stop speaking rather than assert their right to do so anonymously.

    “Indeed, there is some evidence that this is what happened here: MoneyBags has not tweeted since Twitter was ordered to notify him of this dispute.”

    Two-Step Test and Fair Use

    For a litigant to unmask the identity of an anonymous internet user in this type of case, the party seeking the disclosure must first demonstrate a prima facie case on the merits of its underlying claim. The second step sees the court balancing the need for such discovery against the First Amendment interest at stake.

    According to the Judge, Bayside’s underlying claim – that of copyright infringement – fails when subjected to the four factors of fair use.

    1) At the time the photos were used, MrMoneyBags’ Twitter account had a small following with just a handful of likes, retweets or comments, something that rules out commercial use. MrMoneyBags’ use of the photos alongside his own biting commentary and criticism led to a transformative use that reflected his “apparent distaste for the lifestyle and moral compass of one-percenters,” the order notes.

    2) As to the nature of the copyrighted works, the Judge assessed some as the kind of material people might post to Facebook or Instagram. Others were more artistic, with elements such as lighting, positioning and wardrobe giving the appearance of intentional selection.

    Unfortunately, Bayside provided no evidence about the photographs themselves, including where they were taken, by whom, the photographic subjects involved, or whether there was actually any attempt by the photographer to influence the creative process. As a result, the Judge finds this factor to be “largely inconclusive.”

    3) On the amount of the copyrighted content used, in the context of a photograph that “is not meaningfully divisible”, the Judge finds the third factor ‘neutral’.

    4) When considering the effect of the use on the potential market for or value of the copyrighted work, the Judge says that determining market harm is difficult when a use is transformative and non-commercial. Bayside claimed that it licenses photos for commercial exploitation but the Judge didn’t buy that, especially since the company offered no evidence to show market harm.

    Taking all of these factors into account, Bayside has not demonstrated a prima facie case of copyright infringement. Even if it had, the Judge says that the subpoena would still need to be quashed since the balance of equities tilts in favor of MrMoneyBags and his right to remain anonymous.

    “Unmasking MoneyBags thus risks exposing him to ‘economic or official retaliation’ by Sheth or his associates,” the Judge writes, before diving down the Bayside rabbit hole.

    The Bayside Mystery ‘Makes a Difference’

    According to the order, the Court is not assured that Bayside has no connection to Brian Sheth. Bayside was not formed until the month the tweets were posted and the entity had never registered any copyrights until the registration of the six photographs.

    That there is no publicly available information about Bayside’s principals, staff, physical location, formation or purposes, and that the entity declined to present additional evidence or information that might help the court, seems to have sounded alarm bells.

    Indeed, the Judge concludes by handing a win to Twitter (and by extension MrMoneyBags) and quashing the DMCA subpoena, with a barbed comment aimed at a shadowy entity that values anonymity, as long as it’s theirs.

    “Bayside’s choice not to supplement the record makes it quite easy to balance MoneyBags’s interest in preserving his anonymity against Bayside’s alleged interest in protecting its apparent copyrights,” Judge Chhabria writes.

    “On this record, even if Bayside had made a prima facie showing of copyright infringement, the Court would quash the subpoena in a heartbeat.”

    Documents for the entire legal saga can be found here

    From: TF , for the latest news on copyright battles, piracy and more.