Everything The Same Is Infringing: How Hugh Hefner Used Mario Bros. To Show YouTube's Copyright System Sucks

from the mario-pron? dept

There's an old saying that those that lie down with dogs will get back up with fleas. One modern derivative of that maxim might be: if you bend over backwards for copyright censors you will become censors yourself. No better example of this can be found than YouTube's ContentID system, the automated platform that scours YouTube videos looking for uploads of identical audio or video content and proactively takes them down in favor of the original content owner. That's how it works in theory, that is. In practice, ContentID appears to be most useful in taking down fair use content, trolling legitimate creators, and even silencing political speech, supposedly the most revered thing in this great Republic of ours. It's typical in these cases for the automation to be blamed, but that's a mistake. The real blame lies with Google for implementing such a flawed system, with the entertainment industry and trolls for abusing it, and with all of us for simply accepting it. Everyone, in other words, is to blame.

I came to that conclusion recently, when Hugh Hefner used Mario Bros. to show me how silly all of this is. The whole thing started when a Kotaku writer uploaded a video of some Mario Maker levels that play themselves.

Two days ago, I uploaded a video to YouTube. It featured some awesome automatic Mario Maker levels that basically play themselves. Today, I was dinged with a copyright notice for that same video. The claimant was none other than...Playboy? I’m serious. I didn’t get flagged by Nintendo. Rather, I got flagged by Hugh Hefner’s operation.

Playboy, obviously, does not own Mario. It did not create Mario Maker. It did not build the level on display in my video. And yet my video was still flagged. What gives?
What gave was that Playboy had uploaded a video that contained one of the same levels in the other video. Because these levels play by themselves, rather than being played by a human, the videos have the exact same content. So, faster than a Mario Brother running with the 'B' button mashed down, ContentID flagged Kotaku's video as infringing and sent out a notice. Other users likewise had videos of that Mario Maker level flagged in favor of Playboy, which I am very much certain doesn't own any of the IP surrounding Nintendo's center-piece franchise. Most, like the Kotaku writer, submitted disputes which were resolved quickly. Playboy, for its part, has been active in getting all of the claims dismissed...

...which is entirely besides the goddamn point. ContentID was dinging uploaders for copyright violations in an automated fashion, with no checks, on content owned by an unrelated party. That doesn't make any sense. And, in some cases, there can be actual harm done.
When you get flagged, the claimant has a whole 30 days to review your dispute, during which your video typically stays up while also making money for the claimant. Sometimes, the claimant will even be able to block the video from being viewed entirely. Even if the dispute gets dismissed, it might mean waiting days if not an entire month for the motion to actually get through. In the meantime, any YouTuber who supports themselves with ads and just wanted to show off the level to their subscribers, or perhaps added some good commentary to the footage, will lose revenue (as well as gain an unnecessary headache.)
Personally, I'd love to see "An unnecessary headache" as the epitaph on ContentID's gravestone.

Filed Under: contentid, copyright, hugh hefner, mario bros, mario maker, youtube
Companies: nintendo, playboy, youtube


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  • icon
    Machin Shin (profile), 3 Sep 2015 @ 9:21am

    "In the meantime, any YouTuber who supports themselves with ads and just wanted to show off the level to their subscribers, or perhaps added some good commentary to the footage, will lose revenue (as well as gain an unnecessary headache.)"

    Considering all the issues that keep happening around this, why have they now fixed this already? It is REALLY simple, when something gets flagged all money should start dumping into a holding account where it stays until the copyright questions are answered. Soon as proper party is identified the holding account dumps funds to that person. TADA, the ContentID trolling has been killed.

    Sure, that solution is not perfect. The creator still might have to wait for their money, but that is hell of a lot better than getting told. "Yeah, sorry about that, our bad, all that money is just gone."

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Sep 2015 @ 10:54am

      Re:

      How does that serve corporate interests?

      reply to this | link to this | view in chronology ]

      • identicon
        k-h, 3 Sep 2015 @ 2:45pm

        Re: Re:

        That just lets youtube or a bank get the money.

        reply to this | link to this | view in chronology ]

      • icon
        Atkray (profile), 3 Sep 2015 @ 8:51pm

        Re: Re:

        If they "hold" the money while it is being disputed, I'm pretty sure they could make some interest on it.

        As often as this happens, they wouldn't need that high of a return to make it into a nice little side business.

        Actually, I'm surprised they haven't come up with this on their own.

        reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 3 Sep 2015 @ 10:57am

      Re:

      Better yet: along with your proposal the content cannot be taken down if the request is disputed. The claimant must go to court to take it down. If it is really harming anyone then the court should provide both the tools to take it down and the proper financial compensations.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Sep 2015 @ 10:41am

    Every single Youtuber I subscribe to has recounted some instance of this happening to them at some point or continues to happen to them regularly. That is beyond the realm of anomalies.

    Although I see Google as the primary fault here, I feel like of all those Youtubers moved in exodus to another service it would be addressed asap.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 4 Sep 2015 @ 12:17am

      Re:

      "Although I see Google as the primary fault here, I feel like of all those Youtubers moved in exodus to another service it would be addressed asap."

      It would be "addressed" by those other services being sued and being forced to implement a similar system, using ContentID as precedent. It would make those services worse, not better, and lose YouTubers even more money as they fragment their market.

      The implementation of ContentID is far from perfect, and at times its being asked to do things that are guaranteed to generate false positives. But don't lose sight of why it's there.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Sep 2015 @ 10:52am

    -Tim you didn't even report on the fact the Kotaku video went up first.

    "YouTube’s automated system seems to have flagged it for that reason, even though my footage was uploaded first. Pretty silly!"

    If I did the math right the Kotaku person uploaded the video a day earlier then Playboy.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 3 Sep 2015 @ 10:58am

      Re:

      In Corporate America (TM) copyright uploads you!

      reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 3 Sep 2015 @ 12:15pm

      Re:

      That reasoning could lead us into some strange places:

      Consider: The US Air Force releases bomb-cam footage of a strike on an ISIS compound. ISIS releases security-cam footage of the same strike. The USAF has the ISIS footage taken down because it's a USAF bomb. ISIS has the USAF footage taken down because it's video of their compound.

      YouTube rules in favor of who uploaded the video first.

      Soon, all USAF bombs start uploading to YouTube while falling.

      Meanwhile, a prominent presidential candidate talking to a crowd says something utterly stupid about the bomb strike. Within minutes, five people upload it to YouTube.

      These are all taken down; The candidate uses the services of BlunderTrump(TM), which guarantees that it will be the first to upload all his gaffes to YouTube. Thus trumping the rights of all other uploaders and giving him full control of how the video is used.

      BlunderTrump(TM) is soon trumped by Wall Street's high frequency traders. You know, the folks who built an 827-mile cable from Chicago to New Jersey that would reduce the journey of data from 17 to 13 milliseconds in order to get a trading advantage. Seeing a new business opportunity, they arrange to have the fastest data links from many major news stories to YouTube's cloud. By uploading several milliseconds faster than anyone else, they soon effectively control the distribution of major news stories.

      reply to this | link to this | view in chronology ]

    • icon
      wereisjessicahyde (profile), 4 Sep 2015 @ 2:15am

      Re:

      Because it doesn't make any difference who was first that's why. You miss the point. Playboy is not the owner of Mario. Playboy is just a bunch of tits.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Sep 2015 @ 1:12pm

    Not just accepting it

    The real blame lies with [...] and with all of us for simply accepting it.
    Not just accepting it: many of us financially support the companies abusing this, either by directly buying their products or by subscribing to services (streaming, cable TV, etc.) that pay them.

    reply to this | link to this | view in chronology ]

  • icon
    Ryunosuke (profile), 3 Sep 2015 @ 1:14pm

    this is disturbing in the least

    Does this mean that playboy is going after all the NSFW images of the Mario franchise? Pretty sure a) That's impossible because internet, and b) Nintendo would like to have a word with them.

    reply to this | link to this | view in chronology ]

  • icon
    Khaim (profile), 3 Sep 2015 @ 1:24pm

    ContentID was dinging uploaders for copyright violations in an automated fashion, with no checks, on content owned by an unrelated party.


    In fairness to YouTube, Playboy did claim to own the copyright in question. If that had been correct then what they did would be perfectly fine. The problem was that Playboy made an overly broad claim, presumably out of laziness. It's good that they tried to fix things quickly, but it would have been better for them to not have messed up in the first place.

    The solution is for YouTube to encourage claimants to correctly identify things they actually own, and not just whatever they happen to upload. I think they're getting better at this, although we won't know for sure until some troll comes crying about getting perma-banned from ContentID.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 3 Sep 2015 @ 4:29pm

      Forget the carrot, it's time for the stick

      Yeah, I think it's gone well past the time where the solution is to 'encourage claimants to correctly identify thing that they actually own', unless by that you mean apply heavy penalties for getting it wrong.

      'Not making fraudulent claims' should not be something to be proud of, it should be the default, companies need the hammer brought down on them, hard, if they intentionally or not make fraudulent claims through the system that ends up effecting other people, and the punishments need to be at the very least just as severe as those that are falsely accused because of their negligence.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Sep 2015 @ 5:16pm

      Re:

      I've got a proposed solution:
      When a claimant files a claim, THEIR ad revenue goes into escrow, as does the alleged infringers' revenue.

      If the claim is successfully challenged, the alleged infringer gets their escrow back, and the claimant's escrowed revenue goes to Google.

      THAT should (somewhat) fix things quickly.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Sep 2015 @ 2:13pm

    'with all of us for simply accepting it'

    that's not really a fair statement. when any of us complain, we're ignored! that means we haven't accepted it but are powerless to get anything changed! it is a typical reaction by Google, because regardless of the number of employees it has, there is almost never anyone to talk to, to complain to let alone get anything changed or corrected!

    reply to this | link to this | view in chronology ]

    • identicon
      Rekrul, 4 Sep 2015 @ 2:47am

      Re:

      it is a typical reaction by Google, because regardless of the number of employees it has, there is almost never anyone to talk to, to complain to let alone get anything changed or corrected!

      That's because there aren't actually any humans working at Google any more. The whole system is just on autopilot.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Sep 2015 @ 7:15am

      Re:

      there is almost never anyone to talk to, to complain to let alone get anything changed or corrected!

      That is due to a problem of scale, Google is based on being highly automated so that it can provide services to everybody in the world.
      The alternative is the Universe that the RIAA/MPAA much prefers, middlemen selecting the few people whose work can be put in front of an audience while keeping as much of the profit generated for themselves as is possible.

      reply to this | link to this | view in chronology ]

  • identicon
    Steve, 3 Sep 2015 @ 4:04pm

    Flag you are the owner

    I thought a few flags when uploading the video would reduce the chance of this from happening.
    1) you are the creator of the video
    2) you own the IP inside the video
    3) you are relying on fair use exemption

    So if I or Playboy upload a video commenting on MB then we could tick 1 & 3. Content ID could not trigger in our favour.

    If Nintendo uploaded the video they would tick 1 & 2. Content ID could trigger, but as Playboy & I had ticked fair use, a person must review the video and decide if fair use applies. i.e. no more automatic take down.

    If a user abuses the flags then they get strikes. If the IP owners fails to consider fair use when flagged they get strikes.

    Banning industry players from Youtube is never going to happen. However maybe a fine system where their Youtube revenue goes to a pool of charities might be considered. eg after 3 strikes the revenue from all Youtube videos for that industry player for 1 day is lost. 4th infringement, 2 days etc. The industry reviewer & the companies directors would also be required to watch a lengthy video on how fair use can be applied after each strike.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 3 Sep 2015 @ 4:39pm

      Re: Flag you are the owner

      If the IP owners fails to consider fair use when flagged they get strikes.

      To which they would respond that they did consider fair use, every single time, forgetting to mention that the 'consideration' lasted exactly as long as it took them to click the box asserting such. That every single time their 'consideration' found that fair use didn't apply was a pure coincidence.

      A requirement to 'consider' fair use is meaningless if they can simple claim that after careful 'consideration' nothing qualifies to their mind. There's no penalty for not accepting fair use after all, so why would they ever do so if they weren't forced to?

      reply to this | link to this | view in chronology ]

  • identicon
    CharlieBrown, 3 Sep 2015 @ 7:06pm

    Blame

    The real blame lies with Google for implementing such a flawed system, with the entertainment industry and trolls for abusing it, and with all of us for simply accepting it. Everyone, in other words, is to blame.

    WRONG! I never accepted this goddamn system and I was never offered a choice to accept it nor dispute it! So how have I accepted it? Don't blame me!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Sep 2015 @ 10:36pm

    Censor first, ask questions later. That's ContentID in nutshell.

    reply to this | link to this | view in chronology ]

    • icon
      John85851 (profile), 4 Sep 2015 @ 1:34pm

      Re:

      No, this is the reaction to any takedown request. If a company censors first, then they don't have to debate whether or not they're liable for not taking it down. Sure, they're not liable, but it's quicker to take down a video than to pay lawyers to prove the argument that they're not liable.

      reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 4 Sep 2015 @ 2:49am

    Nothing is going to get changed or fixed until someone with deep pockets sues Google over this crap.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 4 Sep 2015 @ 6:43am

    Unfair

    I think this is an unfair smear of ContentId.

    MPAA and RIAA both see copyright infringement everywhere. If they could, they would nail you for infringement of a song because you pressed one key on a piano and OMG that note is in their song. They see copyright infringement as a bunch of nails standing above the surface, that must be smashed flat-in by every hammer they can bring to bear. In fact, they see every content that is not theirs as infringing; simply because non-MPAA-non-RIAA content exists it is taking money from their pockets.

    They forced YouTube to implement ContentId as a hammer, and if the hammer didn't drive every nail in, MPAA and RIAA were going to sue YouTube out of existence. Basically, ContentId is designed to be MPAA and RIAA's hammer. Naturally, it hammers everything: because that's what MPAA and RIAA want it to do, hammer everything.

    Not that it helped YouTube: MPAA and RIAA are still going after them because there's still all that other original content on the site that is taking money from MPAA and RIAA's pockets.

    So even as you argue that ContentId is "An unnecessary headache", MPAA and RIAA are busy demanding that it block even more content.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Sep 2015 @ 9:27am

    Re: BlunderTrump(TM)

    that gave me a great belly laugh- you win the internet today Roger.

    reply to this | link to this | view in chronology ]

  • identicon
    Bob, 5 Sep 2015 @ 6:01pm

    Bullshit...

    The idea that we are to blame is nonsense, since in order to stop their bad behavior we'd have to be physically located a few blocks from said company.

    It's not that we are weak, it's that its a logistical nightmare organizing people against all the companies preying upon us as individuals.

    AKA society is not setup to defend itself against greedy bastard companies because of the way social relations under capitalism work. AKA you need money and resources to defend yourself, if you got none that weakens your ability to buy the free time necessary to camp out, outside these companies and storm them when they get out of line.

    reply to this | link to this | view in chronology ]

    • identicon
      GEMont, 7 Sep 2015 @ 4:14am

      Re: Bullshit...

      Actually, defending the public from greedy companies was what much of the old legal system was designed to do.

      However, its all been re-interpreted to protect the companies from the public - the victims of their now-legalized criminal activities.

      I'm pretty certain that in any capitalist society, failure of the laws of the land to reign in the activities of their richest capitalists, will always result in a situation similar or identical to the one now facing the capitalist western nations.

      I'm also pretty certain that the wealthy members of any Capitalist Society will eventually combine their efforts behind closed doors, to have the laws that protect the public from their greed, reinterpreted to support their greed. It is basically, the description of fascism.

      If the old versions of the laws designed to protect the poor and middle classes from the wealthy and the mega wealthy are not soon re-established, the dissolution of the west is pretty much guaranteed, because wealth knows no limit and the richer you get, the richer you need to get.

      ---

      reply to this | link to this | view in chronology ]


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