Discovery Channel Forcing Deadliest Catch Fan Site Offline; Claims Embedding Official Videos Infringes

from the not-the-shark-week-people-were-expecting dept

John from the soon-to-be-gone-from-the-internet site DeadliestCatchTV.com, alerts us to the news that lawyers from The Discovery Channel are taking down the site. Now, let’s get the basics out of the way: the lawyers probably do have a trademark claim here. Certainly from the domain name, you might think it’s an official website for the show. The site does have “not affiliated…” text, but it’s hidden all the way at the bottom. If you were trying to avoid a “likelihood of confusion” problem, I would imagine it would help to make it very, very clear at the top of the page that the site is a fan site and not the official site. That said, there are a lot of problems with the way Discovery is treating this situation.

First of all, in the past, The Discovery Channel actively supported John, and he’s reposted an email he received not so long ago from someone at the Discovery Channel offering him free content and happily celebrating the site. Here’s a couple excerpts from the email:

From: DiscoveryChannel
To: Admin
Hi Editors @ DeadliestCatchTV ,

My name is Soumik Pal, I work at Discovery Channel and I’m writing to offer you free preview content and assets from the new season of Deadliest Catch! We feel that the show is a great fit with your site (and especially your readers) and would love to get the word out about some exciting new Catch initiatives this season!

[…]

To get your readers ready for the new season, I’ve included the official press release, high-quality preview videos, exclusive photography, brief episode descriptions and much more…

[…]

I’m happy to act as your point of contact for any additional requests and we hope your readers might like some of the content we’ve provided! Please let me know if there’s anything more we can provide you with to help get geared up for the new season of Catch.

Thank you!

Soumik Pal
Digital Media, Discovery Channel
Discovery Communications

That certainly makes it sound like Discovery and the folks involved with the TV show are quite happy with the fan site and community that John put together. In fact, that seems like a great way to encourage and nurture a fan site. Actually, the folks behind the show have gone much further. On the official site for The Deadliest Catch, the show actually lists & links to fan sites including DeadliestCatchTV.com. They even set it up so that if you click on the link, it loads the fan site, with the official Deadliest catch “dashboard” (see below). And, as of right now, you can even see a wrapped version of John’s site on the official Discovery channel page. That certainly looks like a show that wants to support its fan sites:

So, again, this is clearly a show that has long supported this site with direct emails, sending them content, encouraging them to share it with other fans of the site, linking to the site from the official site and wrapping the page with its own “Deadliest Catch Network” Dashboard. You would think, at the very least, if the company decided to change its policies, that it would send over a friendly note — rather than sending a legal nastygram. No such luck.

John asked the lawyers who contacted him about Soumik Pal’s email:

When I questioned this with Discovery I was told only the employee no longer worked at Discovery and they “were looking in to this”. The second lawyer I spoke to from Discovery stated that they had a change of heart and have now decided they wanted to police any sites using their material (Although previously they were providing it for promotion purposes).

Again, a change of heart is fine — but sending the lawyers to deliver it with threats? That seems ridiculous. It’s a way to turn a bunch of fans into people who will never want to have anything to do with The Discovery Channel again. It’s a case study in exactly how not to deal with social media.

Oh, and it gets worse. Beyond the basic trademark threat of the domain name, Discovery’s lawyers claimed that John was committing copyright infringement by embedding official videos from the show’s YouTube account on his website. I’m not kidding. The Discovery Channel has an official YouTube channel, where it uploads videos and has embedding turned on. So, not surprisingly, John has embedded some of these official clips on his site. I’m about to do the same. This is the last video that John posted:

It’s from the official Discovery Channel YouTube feed, and embedding is turned on. But… according to Discovery’s lawyers, this is copyright infringement. John asked the lawyer about this, and the guy insisted that while this might be “confusing” — that embedding the official videos was still copyright infringement. Someone might want to tell the marketing guys who enabled embedding.

The one issue that I really question is that part of the claim made by Discovery was that my “…display of and/or provision of access to unauthorized copies of our client’s copyrighted material infringes Discovery’s copyrights…” The material in question were actually videos that were posted BY DISCOVERY on YOUTUBE where the embed code was made available for all to use. I spoke to one of the lawyers briefly on the phone today and he understood how this could be confused but maintained that even though the code is there you are NOT ALLOWED TO USE THE EMBED CODE ON ANY WEBSITE.

Frankly, this whole thing screams of some seriously mistaken or confused lawyers associated with The Discovery Channel, who not only seem to be completely out of touch and clueless as to how the internet works, but aren’t even talking to the marketing people involved. These lawyers are actively undermining the show’s own marketing efforts, pissing off fans, and closing down a large and popular fan group of the site with highly questionable legal claims.

Unfortunately, it looks like John is giving in to the lawyers. He’s said that the site will disappear as of August 11th, and the Discovery Channel will take over the domain. Again, I can understand the potential for some confusion with the domain name, but there were much better ways for Discovery to handle this. Perhaps The Discovery Channel is taking the concept of its famous Shark Week way too far, and turning its lawyers into sharks. They should watch out, as when you let the sharks loose on your biggest fans, they can come back to bite you.

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Comments on “Discovery Channel Forcing Deadliest Catch Fan Site Offline; Claims Embedding Official Videos Infringes”

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74 Comments
crade (profile) says:

Re: Stones

It’s not about stones it’s about money. The system is built to encourage spurious C&D. It is so much more difficult to “not cave in” that you basically have to be a cause crusader to go the distance. There will always be more regular Joe’s than cause crusaders, so they won’t have much motivation to stop sending them.

ChurchHatesTucker (profile) says:

Re: Re: Stones

“It’s not about stones it’s about money.”

Bingo. You might be totally in the right, but proving that in court in the US is often a pyrrhic victory.

OTOH, this is why I get so upset with sites like youtube that will honor a ‘DMCA takedown’ that’s written on a cocktail napkin in crayon. They’ve got lawyers who should know better.

RD says:

Never again

Not that anyone at the arrogant Discovery Channel will care, but because of this idiotic heavy-handed attempt to squash a big fan site, I will never again watch this show. I may reconsider not every tuning to the entire Discovery Channel again as well. I am so SICK of the big, powerful media elites using their lawyers like weapons and turning them loose on people who are HELPING TO PROMOTE THEIR PRODUCTS. That they would lawyer-up on this guy after THEY THEMSELVES allowed embedding in the videos THEY THEMSELVES put on youtube smacks of hypocrisy and arrogance and borders on entrapment. You have lost a viewer and I will tell anyone who asks this story and make certain they know it was YOU (Discovery Channel) that allowed such a thing to happen.

Andrew (profile) says:

Re: Resist...

I can see that doing it as a hobby, I have nothing to lose. I would spend no money except to send back a letter saying “lol no” and continue on my way, turning my site into a memorial to Discovery’s stupidity.

You only have to pay money if they actually take you to court. And they won’t, because they don’t do that to people who stand up to them.

BruceLD says:

Subject

Here’s what most likely happened.

Their lawyer was probably a bit bored proofreading contracts and spending most of their time playing golf every day. The bored lawyer decides that he is not making enough money and wants to make himself actually appear useful to the company, so he seized a golden DMCA opportunity to requisition the corporation a large fee for going after, taking down and successfully winning against a copyright infringer (even though they allowed it to happen).

You see, to the lawyer it doesn’t matter if he alienated hundreds/thousands of fans of the show turning them off forever. What matters is that the lawyer gets paid a handsome fee from the corporation. In the meantime the corporation actually achieved absolutely nothing except having paid out X-thousands of dollars to their lawyer, and have also created a lot of negative publicity for themselves and have alienated hundreds/thousands of fans.

It doesn’t matter. They’ve won, The Discovery Channel paid their lawyer handsomely, and in the end the lawyer is smiling with a successful DMCA case on his resume which increases his value and fees in the future. GO LAWYER!

Yep. That’s what it’s all about folks. The DMCA was designed by lawyers to make lawyers filthy rich. The corporations are left holding the bills for a large percentage of lawsuits that don’t actually pay out or achieve anything, they absorb all of the negative publicity, and they alienate their customers for life.

But who cares, the lawyers get paid no matter what…right? That’s the power of the DMCA. It doesn’t actually stop piracy, it doesn’t actually help corporations to recover their “lost” profits, it doesn’t even help make corporations richer. What it does do is make lawyers greedier and filthy rich.

If I was a media corporation I’d be thinking, “F*ck the people. They’re nothing but cash withdrawal machines to me!”

Skout (profile) says:

I wish I watched this show heretofore just so I could say I would no longer be watching it because of this….. but I can’t, because I don’t generally watch TV.

I don’t understand why the owner of the domain has decided to just hand over the domain, though. That seems… beyond necessary. Wonder how long before the show’s website stops linking to it?

KP says:

Just because it’s on YouTube doesn’t make it license-free/public domain, even if they (apparently mistakenly) include the embed codes on there.

DiscoveryTV’s channel on YouTube is a marketing presence, full of revenue-generating ads and promotions of its other shows and other revenue streams. The second somebody repurposes the content outside the visual context of that presence, it can affect potential revenue. Discovery Channel is simply protecting its revenue. No surprise to me one bit. Move on.

crade (profile) says:

Re: Re:

watching the thing on youtube.com gives you the exact same ads and links to discoveries “channel” that watching an embedded version does.

If you are an idiot and say it is ok to embed your video when you don’t want them to, admit your mistake and ask them politely to remove it before you sue them. Or be a complete ass because you are bigger than them and can bully them and make enemies of your customers that used to be comming to you from his site. No surprise to me either. Stop to laugh at them before you move on.

KP says:

Re: Re: KP is not a lawyer

re: exact same ads and links — agreed, but only as far as the links within the video are concerned.

DiscoveryNetworks (DN) relies on content to drive advertising and related revenue. (Yes, I do know how the Internet works. I asked Al Gore 😉 ) People go to that YouTube channel to watch DN content. DN people build an experience around the content on the YouTube site (not just within the video) to promote other programs and push ad impressions. Showing copyrighted content on another site takes away DN’s ability to monetize it that way.

Do we know all the facts here? Are we sure that the the first contact that DN had with DeadliestCatchTV.com was by a bunch of asshole lawyers waving a C&D order in the admin’s face?? I don’t know — does anybody else know? If it was, that was a piss-poor way to handle things. DN had a chance to 1) do it nicely and save face, and 2) listen to DCTV.com and learn about how better to inform and manage copyrighted material, by removing things like embed tags to discourage re-purposing content.

re: the comments that equate YouTube to public domain, please Google “youtube video id” and/or “youtube claimed copyright”. This could (or should!) be at play here, but I don’t know for sure — and again, DN and YouTube/Google should make reuse policies clearer regardless.

Perhaps the best solution here is for Google/YouTube to ditch hosting sites like DN, because just about everybody equates YouTube to mean copyright-free. Google could simply clone and rebrand the YT technology as some other site, take away default embed tags, add disclaimers, etc., beef up the analytics, and still give content publishers an easy channel to promote themselves and monetize.

crade (profile) says:

Re: Re: Re: KP is not a lawyer

Re: ads and links..
Thats somewhat true, except no one just stumbles upon their youtube channel, they go there because they found a video that they liked (either on youtube.com or from an embedded one) and clicked the link to the channel contained therein. Plus only the most hardcore fans will actually go to the seperate youtube channel. Most everyone will just watch on youtube, which doesn’t have any more ads than the embedded one does.

There is nothing wrong with keeping your copyrights if you post it on youtube, but you shouldn’t be able to post it on youtube, and then sue someone for using youtube to view it. Embedding, is not copying anything at all, but is just a link to youtube. Anyone viewing the video is getting it from youtube and not from your site. That is how embedding works. I don’t see how it could possibly infringe on any copyrights at all. I could see if he was posting a seperate copy of the video, or possibly an altered one, but a link is a link and not a copy, if there were access restrictions in place to make the DMCA laws apply, maybe also a different story. There weren’t. You cant post something on youtube to be viewed for free and complain when someone links to it, thats uninformed IMHO, and the only reason they get away with it is because it’s too difficult to stand up for your rights.

John White (profile) says:

Re: Re: Re: KP is not a lawyer

Well since this is my site I can accurately answer your questions. Yes the first contact I had was an email/Fedex from a lawyer (From Grace Applefield a lawyer with ArentFox, intellectual property counsel to Discovery Communications, LLC) on June 16, 2010. I followed that up with a response saying I would be happy to work out an acceptable compromise if someone at Discovery would contact me. I also explained that the video clips were uploaded by Discovery and that other material was provided by someone at Discovery (Mr. Pal). I recieved a follow up letter on July 29, reiterating their demands and simply stating they would investigate the prior correspondence I had with Mr. Pal. I then contacted viewer relations as well as a VP of Communications I found on the discovery site via email. A lawyer from Discovery then contacted me and basically asked me why I submitted this to viewer relations instead of just responding to the intial lawyer. I stated I wanted to understand how the use of the videos from their official channel as well as supplied material could be considered “unathorized use”. His reply was that this was an issue with Youtube’s system and the video was only authorized to be embedded on Youtube and no other site. As for the material he suggested Discovery now was taking a different stance towards fan sites. I’m glad at least this is getting some attention, I honestly would have done anything they requested within reason but they could care less.

KP says:

Re: Re: Re:2 KP is not a lawyer

Yup — they passed the ‘we are asshole lawyers’ then. Sorry the outcome was so bad for you — you clearly had a valuable property….

The whole ’embedding is not copyright’ issue is indeed debatable, and people will probably not be convinced that it is 100% right or wrong — it’s very polarizing and multifaceted. Just Google it and read a few articles — it will raise anyone’s hackles….

If you were only re-using the content that DN gave you via Mr. Pal, then I say the lawyers were double-assholes. If you embedded DN content directly from YouTube, then it’s time for the lawyers to sort out what embedding really means, especially because DN clearly believes that they’re getting ripped off because it’s copyrighted content and they are too stupid to realize that YouTube’s Terms of Service is generally slanted toward free-for-all embedding and open for all sorts of interpretations.

Bad choice again for DN to use YouTube if it really wanted to protect its content. And too bad for you for being caught in the middle of a lawyer’s game, where they’re the only ones making money….

Anonymous Coward says:

Re: Re: Re:2 KP is not a lawyer

1. Contact Google at http://www.google.com/support/youtube/bin/answer.py?hl=en&answer=57788
and discuss this matter with it as Discovery is subject to the Youtube terms of use.

2. Marketing at Discovery is calling the shots, so were I you I would contact it again, explain that your site is a fan site that has embedded videos links precisely as authorized by Google/Youtube, and then see if the two you might be able to reach some sort of an agreement where the company would recognize the benefit of your site as a marketing tool that promotes the show at no cost to the company. Frankly, only a “tool” in marketing, or so ist seems to me, would fail to realize the benefits that can be realized.

3. I cannot stress enough…marketing is calling the shots. Win it over and the lawyers, both outside and inside the company, will be given a new set of marching orders.

Curtis (user link) says:

Re: Re: Re: KP is not a lawyer

If Discovery wanted to fully protect their “ad revenue stream”, they wouldn’t use YouTube, they’d host and serve their videos right from their own servers, where they’d have total control of the ad mechanisms.

Oh, but then they might loose the total impact of VIRAL MARKETING ON THE WEB that YouTube helps facilitate, as well as the embed code option. The internet is for SHARING content. That’s why you build your ads in video format. DUH.

Anonymous Coward says:

Re: Re:

Just because this comment exists here easily readable by you does not mean you have my permission to have it displayed in your browser and be read by you.

I normally charge $500 per user to access these comments, even if I (apparently mistakenly) put them out for free access. The second you repurpose this comment it can affect my potential revenue. I am simply protecting my revenue. No surprise to me one bit.

Please pay up immediately.

Ra says:

I guess this is registered as a trademark in the country that governs .com. They can ask for the domain to be handed over.

But the remainder should not be a problem.

1. You cannot hand people press materials meant to publish, and retroactively recall it. You obviously gave ’em a license to use the materials, you don’t get to make that demand. This is how the press can use press materials in the first place – if whole editions of print would have to be recalled, that would be impossible to work with.

2. Heh, try to pass off embed as a copyright violation. It clearly is not. Discovery channel allowed Google to publish the video like this(!) and ergo you were allowed to use the video as Google, Discovery Channel’s publisher allowed it. Even if that were not the case, hot-linking would not be necessarily prohibited and simple linking always be allowed.

No reason to get scared over the rest and definitely reason to protest this (I say willfully wrong) interpretation of the situation, but the domain name will have to be handed over.

David (profile) says:

Re: Complaining

I also complained. We all should! Here’s what I said:
——–
Your C&D notification to deadliestcatchtv.com was destructive. You supported their website for a long time prior to the takedown, which could (will?) lead to a boycott of your channel(s) – I, for one, will (a) no longer watch any shows on your network, and (b) spread the word about what happened, and encourage my friends to do the same.
——–

John White (profile) says:

Re: Re: Complaining

David, thanks for your support as well as everyone else here. I have emailed thier legal counsel as well as copying several people at Discovery in marketing,public relations and the actual show’s producer stating my intent to turn over the domain and to give them an opportunity to clarify their position once and for all. I will be moving to another site but want to see if and how they respond before I decide what direction that project will be taking.

Just me says:

taking care of discovery's youtube problem

simple solution for getting rid of discovery’s youtube abuse by getting rid of those accounts completely:

1) every user with an youtube or google account should go to: http://www.youtube.com/safety_help

2) hit report harassment – for myself (if you feel harassed by discovery. In this case, i know i am feeling harassed by their moronic lawyers, even if indirectly. Being threatened to be sued for embedding ANY youtube video that was posted with this intent is practically harassment.)

3) select the second option “one of the following” / “# A user is threatening me on the site. “

4) fill in one of the many usernames that discovery channel is using on youtube (e.g. “DiscoveryNetworks” in this case)

5) select the option “…has created a video to harass me”

6) select some of the videos that have the allow embed option turned on (practically all of them are)
btw, youtube allows max 5 videos to be selected.

7) select to block user from contacting you (not that they would care)

8)for the “additional notes” field enter some text along the lines of:

Discovery’s lawyers are abusing Youtube’s terms of service and are threatening to sue users that embed videos posted by them here on youtube with the embed option turned on. See: http://www.techdirt.com/articles/20100808/00114510538.shtml

(feel free to copy&paste that text if you’re lacking inspiration)

9) hit the continue button

if enough users report discovery’s accounts they won’t have any more problems with youtube simply because they won’t have any more accounts here.
/sarcasm

Mike Masnick (profile) says:

Discovery's silence

It’s been interesting watching Twitter on this. A whole bunch of people have referenced this post and asked the official @Discovery channel account to explain why they did this. @Discovery keeps tweeting bland promotions for shows, and clearly has someone who will respond to Tweets working there… but on this, they’re totally silent.

Sad.

Anonymous Coward says:

RE: KP is definitely not a lawyer

re: the comments that equate YouTube to public domain, please Google “youtube video id” and/or “youtube claimed copyright”

All of those link to cases where a copyrighted work is placed on youtube by someone other than the rights holder; that and some pornography, silly internet. No links to cases such as this.

KP says:

Re: RE: KP is definitely not a lawyer

Sure, claimed copyright is for third parties, but Video ID does not exclude the opportunity for those that own copyrighted videos to publish to YouTube and keep tabs on their works:

“…Copyright holders can choose what they want done with their videos: whether to block, promote, or even—if a copyright holder chooses to partner with us—create revenue from them, with minimal friction. YouTube Video ID will help carry out that choice….” (from YouTube’s Video ID info)

Lizzie (profile) says:

There was another Deadliest Catch blog/message board site that I used to post on all the time. The url was http://www.deadliest-catch.com. It was listed as the “unofficial fan page of Deadliest Catch”, and I had it saved to my favorites.

I noticed this evening that the site is now gone. When I went to my favorites and hit that link, it directed me to the Discovery Channel’s “official” fan page. Obviously it’s been taken over by Discovery.

Sorry. Not interested.

Discovery Channel says:

There have been some recent questions about the use of Deadliest Catch content on non-Discovery websites. Discovery Channel’s policy of allowing fan sites to use embeddable videos has not changed. We value and appreciate our online fans, and are always open to sharing clips with sites that feature Deadliest Catch and our other programming. Our policy does not, however, permit the use of confusingly similar domain names that infringe on our trademarks. This also extends to the use of photographs that are subject to license limitations designed to protect our talent and our brands. We are as committed as ever to our partnerships with our fan sites, and look forward to continuing to work with you and your content needs.

John White (profile) says:

Re: Re:

That is certainly not the policy that their lawyer, Mr. Aaron Holbert relayed to me. I was VERY Clear in asking him about the right to enable the youtube videos and his response was that they could NOT be used on any other site other then youtube. I would have had no trouble giving them the domain and moving to another domain that did not include their trademark and I would have done so quietly.

Anonymous Coward says:

RE: Discovery Channel

“This also extends to the use of photographs that are subject to license limitations designed to protect our talent and our brands.”

Did you miss the part where your site linked to his site, and brought it up in your frames? Maybe you should not wrap every site you link to.

Appears you are committed to backtracking and looking like complete, well-rounded, asshats. We can help you find other social mediums if you need to continue spouting rhetoric only you believe.

GeneralEmergency (profile) says:

Does anyone at Discovery have ANY common sense?

What a lame, asshat response.

You’re off my DVR list until you:

1) Apologize publicly for using Lawyer Bully tactics when if you were REALLY concerned about the trademark issue, you could have just approached Mr.White and NICELY explained the trademark problem and asked him to rename his site.

2) Publicly admit that Discovery’s featuring his site, then cluelessly C&Ding him was “an asshat lawyer dipshit move”.

3) Make your dipshit attorney publicly apologize for claiming that Mr. White was not allowed to embed the You-Tube video clips on his site. He needs to say “I acted stupidly, without regard for the truth and due diligence”. Then fire the cretin.

annemcgillicutty says:

Never again

I think you are right. The show is not the same without Captain Phil and the only new captain that I like is Elliot. His troubles make him seem human to me and I hope he does well this year. I always enjoyed Sig and his crew but I cannot stand Keith, Bill, and have wearied of the Hillstrands. So hasta la vista and good fishing. I would be more interested in what the rest of the fleet does with the restricted quotas and how they are managing.

Tall Whitemail says:

Deadliest Catch Fan Site Takedown

Oh, so you take all the fun away because you’re scared of (What?) losing profit from others sharing content??
How rude and mean spirited it is to be like, “I own it all and you can’t touch it” attitude that is the same as a sandbox in preschool.You seriously think revenue is affected? How dumb.
Even if it was, how could you care without being partly retarded? It gets more eyes that way, increasing popularity, hence increasing overall revenue in turn, dummy.
You take our enjoyment, remove our respect for you and your show because of it, and this is what you really get.
More people talking down about how you really operate..

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