Why did you shut down Darksydephil's channel?

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Why did you shut down Darksydephil's channel? Warhero913 4/15/10 2:15 PM
Darksydephil's channel was shut down for no reason. He is legally allowed to post gameplay videos on Youtube. All of his videos that had copyright claims put against him were already uploaded on different accounts and were not shut down. To Ubisoft: I am not buying anymore or your games because of this. if anyone knows how to help DSP, go to his alternate channel THEKINGOFHATEHD.
Re: Why did you shut down Darksydephil's channel? krcm0209 4/15/10 3:51 PM
I agree. YouTube stop taking it up the ass and let DarksydePhil back on and reinstate all of his videos that didn't get copyright claims AT LEAST...
Re: Why did you shut down Darksydephil's channel? krcm0209 4/15/10 3:52 PM
What DSP is doing is TOTALLY LEGAL! Look it up in US Law.
Re: Why did you shut down Darksydephil's channel? faberoptime 4/15/10 4:25 PM
Unfortunately for publishers such as darksydephil, it is illegal (for any publisher!) to publish vids including content whose copyright belongs to others, without their permission.

The YT systems (for publishers big or small!) work on a "strike" system.
First and second strike = first and second warnings. 
Three strikes and you're out.

In his response vid on his "fallback" (partnered) channel, Phil incorrectly states that there's no process for getting a channel unsuspended, when multiple copyright violations have occured - there is.
He merely needs to file a DCMA counter-claim notice, providing details of what permissions he has to use the material identified as being copyright of others.
Same criteria as we all have to meet.

The problem for Phil is that he may not, at this time, be able to provide permissions in instances where he hasn't already obtained any (I fear the 1st and 2nd strikes may have similarly not been effectively dealt with).

He cites a very questionable legal assertion as a fundamental argument, namely:
"...technically, is it illegal what he's doing? ... Actually, no it's not. US law protects it."
There is presently (and understandably!) much confusion on this issue.
YT, as a commercial organisation, has had to navigate a sea of legal precidents on this and indeed, such is ongoing.
It's not as clear cut as Phil asserts.
We cannot discard in our thinking the original producers of work.

Consider a neighbour's son's start up band. If they're any good they might try and release a CD. 
If 80% of their possible sales are impacted by copyright theft of their work, it is legitimate for them to act against it.
Such is the case (on a larger scale!) with games producers too.

What we see playing out are the conflicts between freedom of speech and rights of expression against enforcement of the rights of copyright owners.

Phil's work falls four square in the midst of such issues. Effectively he's making vids largely comprising (critical commentary of) video games.
Under the law, taking someone else's work and reproducing yourself is generally considered to be (and referred to as) "derivative work." To follow preceding analogy, a competing neighbourhood band releasing a CD of covers of yr neighbour's son's songs.
This differs from provisions relating to fair use ("US law protects it."), which intended to protect rights to make commentary, parody and academic uses (as well as a variety of other "freedom of speech" oriented purposes).
It could well be argued that hours worth of recordings of gameplay may constitute derivative work.
The law (arguably rightly!) provides protection for copyright holders.
In Phil's instance, three of his vids have been "called."
Just because others are getting away with breaking the law doesn't mean it's okay for you to (e.g. drink driving) - no matter how good at it you are!

Basically, I guess what it boils down to is if Phil wants to make a dollar off the back of others work, he'll need to get their buy in.

If whomever it was that called his last (or indeed either of the other two vids that got strikes - he's had plenty of time to address!) vid (that got his channel suspended) are prepared to give Phil permission to use what he has, the damage can be undone.

After all, Phil knows enough about copyright to be making money off the back of it - his "fall back" channel has obtained partnership (which demands copyright compliant practices) and all his content therein apparently seems to meet copyright criteria.

Moreover, his popularity contributes to his credibility when dealing with copyright owners. He's on stronger ground to make a case to say "you guys benefit from my work! In exposure if not in praise!" with 10K+ subscribers behind him...

If he can't get game publishers' buy in, then, well, we can't have laws that don't apply for some and not others and the same should apply with YT rules (though on occasions like this, some YT attention and assistance in resolution could well be helpful!).

As Phil said in his response vid, he intends to keep doing what he's known for, so all I can advise is that he pays heed to the legitimate commercial interests challenging his right to do what he does and seek to find some mutually beneficial accommodation.
Re: Why did you shut down Darksydephil's channel? GovernmentAnswer 4/16/10 7:58 PM
Hello Everyone,
 
I have sad news regarding what happened to DSP. This is directly from:
 
U.S. Copyright Office
Library of Congress
101 Independence Ave SE 
Washington DC 20559
(202) 707-3000
www.copyright.gov
 
I was mad like the rest of you when Phil's account was deleted, but seeing all of the conflicting answers here on the forums, I decided I had to have an iron-clad answer, so I wrote to the U.S. Copyright Office (info shown above) and asked this question:
 
"I had a question regarding Copyright rules as applied to console and computer game content. Is it allowed for a person to make a video of himself/herself playing a video game, complete with live commentary from him or her, and then post it online for the enjoyment of others, as long as he/she is not doing it for profit?

An example of what I am asking would be: John Q Public buys Mass Effect 2 for Xbox 360, makes a video of himself playing the game, and then posts it on youtube or some other online video site, so that other people can see his experience. He posts it because he wants to share his experience with others (he's not doing it for monetary reasons). Is that prohibited under Copyright rules and regulations? Are there any Copyright rules regarding the usage of a video of someone playing a game? Not actual game video ripped directly from the game itself, mind you, but if John Q Public sets up a video camera in front of his TV, and records his experience of the gameplay?"
 
Here is the answer I received from the U.S. Copyright Office:
 
"No that is not allowed. 

Copyright is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

 

(1) to reproduce the copyrighted work in copies

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending

(4) to perform the copyrighted work publicly; and

(5) to display the copyright work publicly.

 
 
What you would be doing could be in violation of number 5 and possibly number 4, which would subject you to copyright infringement."
 
 
I'm sorry guys, but based on the US Government reply above, DSP's original account is gone for good. There's nothing we can do except ask lawmakers to change or repeal the Digital Millennium Copyright Act.
 
 
Sincerely,
 
GovernmentAnswer
Re: Why did you shut down Darksydephil's channel? Zander490 4/20/10 8:39 AM
 
U.S. Copyright Office

Fair Use

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

    1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
    2. The nature of the copyrighted work
    3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
    4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.

Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work.

The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

FL-102, Revised May 2009

How much of someone else's work can I use without getting permission?
Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See FL 102, Fair Use, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians.

From http://www.copyright.gov/title17/circ92.pdf

(This is the only section I could find about public performance of a video game.)

Notwithstanding the provisions of sections 106(4) and 106(5), in the case of an electronic audiovisual game intended for use in coin-operated equipment, the owner of a particular copy of such a game lawfully made under this title, is entitled, without the authority of the copyright owner of the game, to publicly perform or display that game in coin-operated equipment, except that this subsection shall not apply to any work of authorship embodied in the audiovisual game if the copyright owner of the electronic audiovisual game is not also the copyright owner of the work of authorship.