Attacks from Old Media against popuar Youtube Content Creators

[AGreatWeight]

Unfortunately, your quote refers to a specific case... and you omitted the following -

 

"Fair use is a doctrine unique to the law of the United States that permits limited use of copyrighted material without having to first acquire permission from the copyright holder."

 

If we look at doctrine, we see the following -

 

"A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows for it to be equally applied to like cases. When enough judges make use of the process soon enough it becomes established as the de facto method of deciding like situations."

 

so disregarding the specific case you quote, based on the information provided above, fair use is not (by law) an actual right.

 

"U.S. fair use procedure and practice

 

The U.S. Supreme Court described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc.^[7] This means that in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement. Thus, fair use need not even be raised as a defense unless the plaintiff first shows (or the defendant concedes) a "prima facie" case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount, for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense. In addition, fair use is only one of many limitations, exceptions, and defenses to copyright infringement. Thus, a prima facie case can be defeated without relying on fair use. For instance, the Audio Home Recording Act establishes that it is legal, using certain technologies, to make copies of audio recordings for non-commercial personal use.^[20]

Some copyright owners claim infringement even in circumstances where the fair use defense would likely succeed, in hopes that the user will refrain from the use rather than spending resources in their defense. Strategic lawsuit against public participation (SLAPP) cases such as these—alleging copyright infringement, patent infringement, defamation, or libel—often come into conflict with the defendant's right to freedom of speech, and has prompted some jurisdictions to pass anti-SLAPP legislation which raises the plaintiff's burdens and risk.

Although fair use ostensibly permits certain uses without liability, many content creators and publishers try to avoid a potential court battle by seeking a legally unnecessary license from copyright owners for any use of non-public domain material, even in situations where a fair use defense would likely succeed. The simple reason is that the license terms negotiated with the copyright owner may be much less expensive than defending against a copyright suit, or having the mere possibility of a lawsuit threaten the publication of a work in which a publisher has invested significant resources.

Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use a non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or licence agreements may take precedence over fair use rights.^[21]

The practical effect of the fair use doctrine is that a number of conventional uses of copyrighted works are not considered infringing. For instance, quoting from a copyrighted work in order to criticize or comment upon it or teach students about it, is considered a fair use. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though they may sell their review commercially; but a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

Fair use is decided on a case by case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. Even repeating an identical act at a different time can make a difference due to changing social, technological, or other surrounding circumstances.^[8][22]"

 

also, when deciding on a case-by-case basic, various criteria have to be satisfied for a work to be consider 'fair use'

 

"U.S. fair use factors

17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a 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; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.^[4]"

 

Bottom line is neither of us are lawyers or even proficently knowledgeable in this field, so we could go on arguing about it indefinitely, especially as neither of us are going to budge.

What have we learned so far, you believe MXR did nothing wrong, I beg to differ. That's the gist of it. The ones who actually know, are Tarshana and MXR.

Edited April 4, 2017 by AGreatWeight

[Nilanius]

*shrug* well either way, I will never see any of Tarshana's mods now, or in the future. She's damaged her own name. I was actually avoiding mentioning her name till you brought it up. But regardless, many mod users that follow this story, pretty much have blacklisted her and any future mods she makes. She's damaged her own name in this. And not a single mod author except her has ever had issues with their mods being reviewed or showcased. MXR's reputation will be untarnished, because folks like myself, will continue being subscribers to his channel, will still find awesome mods through his channel amongst other similar channels. And mod authors like Tarshana, will only end up harming their own reputation by behaving as she did amongst mod users, and reviewers.

 

I still maintain, if someone doesn't want their mod reviewed, commented on, or criticized, then it's best to not release said mods to the public. Because everyone in the united states, and even many other countries, have a right to review someones work and make video commentaries on others works. Good, or bad, trying to silence criticism, will only harm the reputation ones trying to silence reviewers. That's just how things are. So I will just end this last post by me with what I been saying:

 

If you are a mod author, and you don't want your mod shown on any youtube video, or linked from any external site with commentary, criticism, or any kind of publicity, then just keep them to yourselves. And the mod using community also wont tolerate things like PULP either. We users don't agree with the whole mod theft thing, but we also don't agree with silencing critics or reviewers either. That's all I have to say and will be my final post in this topic.

[DoctorKaizeld]

 

Under fair use, every single person who downloads a mod from Nexus, has a right to review, criticize and comment on said mod.

this is true. you do not need permission to review or parody something. for example weird al yankovic dosnt need permission to make any of his songs but he does so simply out of respect and as a courtesy. if he was told no by the artist he can still make the parody anyways (though he wont). if you ask that someone doesnt gain monetary compensation for a mod this does not pass on to a review of said mod. the monetary gains for reviews are from the review itself and not the mod and does not conflict with the permissions.

[mick7508]

So.... I know that I may be coming in a little uninformed here, and I am in no way acting as a mouthpiece, spokesman, etc. for MxR, but it was my understanding that Tarshana did not give fair warning or make a cordial request in his case. Also, I want to see the terms listed on the mods page from before she modified it, since she has modified the page for that mod 13 times since MxR release his Episode 220, and 3 of those changes are listed as specifically to the permissions section of the page, as well as making 4 changes to the readme. I am not sure, but I would be willing to believe that the specific sections about reviews and youtube were not on the page when MxR downloaded it. Also, I wish I could read the article she wrote where she espoused her side of the argument, but it is missing from the nexus. This link ( http://www.nexusmods.com/skyrimspecialedition/articles/169/ ) is is supposed to go to an article entitled " Fair use and Copyright Use- what does it mean?", but the link is dead. Without that article and no way to contact this person, all I have to go on is the small snippets from MxR in his vids and the statements locked in the mod comments.

 

All in all, I don't know what to believe here, but I have been a fan of MxR for a while, especially since he was one of the best Fallout 4 mod reviewers when the game came out. Add to that that MxR and the other mod reviewers that touch CBBE, UNP-BBP, and similar body mesh based mods are under attack now with youtube and are seeing massively reduced profits, and I think that for now I will side with MxR on this one.

[hunterh98]

So.... I know that I may be coming in a little uninformed here, and I am in no way acting as a mouthpiece, spokesman, etc. for MxR, but it was my understanding that Tarshana did not give fair warning or make a cordial request in his case. Also, I want to see the terms listed on the mods page from before she modified it, since she has modified the page for that mod 13 times since MxR release his Episode 220, and 3 of those changes are listed as specifically to the permissions section of the page, as well as making 4 changes to the readme. I am not sure, but I would be willing to believe that the specific sections about reviews and youtube were not on the page when MxR downloaded it. Also, I wish I could read the article she wrote where she espoused her side of the argument, but it is missing from the nexus. This link ( http://www.nexusmods.com/skyrimspecialedition/articles/169/ ) is is supposed to go to an article entitled " Fair use and Copyright Use- what does it mean?", but the link is dead. Without that article and no way to contact this person, all I have to go on is the small snippets from MxR in his vids and the statements locked in the mod comments.

 

All in all, I don't know what to believe here, but I have been a fan of MxR for a while, especially since he was one of the best Fallout 4 mod reviewers when the game came out. Add to that that MxR and the other mod reviewers that touch CBBE, UNP-BBP, and similar body mesh based mods are under attack now with youtube and are seeing massively reduced profits, and I think that for now I will side with MxR on this one.

In all intents and purposes, it's almost impossible not to side with him. Tarshana has a huge lack of understanding of how the law, copyright, and fair use works, which is unfortunate seeing as she had the potential to be a pretty solid mod author in the community. Suffice to say this won't go well for her, and it already isn't. I'm hearing people popping up one after another going, "Yo you hear about this psycho? False copyright striking stuff, jesus", and the sorts.

 

And from what I've gathered, the mod in question that she filed a copyright strike on his video for isn't even majorly her original content(Something something she contributed 5% of the work), it's other people's content she simply ported over. The best we can hope for is that she at least got permission, or even at least gave credit pre-fiasco, so it would help her case a bit, but if it evidence ends up saying she failed to do both, then she's probly gonna get in a heap of trouble, be it by a community lynching, or the staff of the Nexus handling malignant users/modders.

 

As much as I'd want to try to lean moderately on this situation, I'm too much of a proprietor of the first amendment, so it's increasingly hard to find a defense for Tarshana that isn't just blatant lies or biased information. Her signature on the forums is awfully ironic, too, seeing how she tried to silence someone's idea with a copyright strike.

 

Like it or not, most folk, if not anyone, is at a right to criticize one another, be it their person or work, since criticism is the catalyst of change and improvement, especially if it's something being passed off as creative content. That is the very basis of the freedom of speech when in regards to critique and commentary.

 

I'm personally just hoping that this doesn't turn into a Digital Homicide-gone-human incident. She may have acted foolishly, but she in no way whatsoever deserves threats of physical violence. Anyone that's doing that to her is going way too far and frankly are even worse than what Tarshana has been demonized as. MxR is also foolish for not listening to wishes of mod authors when asked. As much good as he brings to the community in the way of showcasing new mods, and the occasional niche mod, he should know by now that his relationship between him and the modding community is a two-way-street, and he's gotta look both ways if he's gonna cross the road, but he doesn't deserve a false copyright strike that directly affects his income, his livelihood, and his upload ability, especially from someone who doesn't understand how copyright works.

Edited April 14, 2017 by hunterh98

[Deleted1205226User]

Everybody talks, nobody knows....

[hunterh98]

Everybody talks, nobody knows....

Welcome to literally the majority of life and applied sciences

Edited April 14, 2017 by hunterh98

[PoorlyAged]

Reading this thread has made me remember some of the garbage I had to deal with as a software developer. So let me share what struck me most.

 

1) Precious few individuals understand that copyright protections vary from one nation to the next. Watching folks from disparate nations discuss copyright law is entertaining. But ultimately they are all wrong. This inconsistency is why 'mod-chipping' X-box (an American Company) and Playstation (a Japanese Company) consoles is fine in Australia but is considered a copyright infringement in the EU and America.

 

2) Even fewer understand the ineffectiveness of International copyright law. For practical purposes there is no copyright protections in most of Asia, Africa and several of the former Soviet Union nations. A copyright is only as good as ones ability to enforce it. This is basically why some major software companies refuse to allow their software to be distributed in China, Vietnam and Thailand.

 

3) Far two many people think that the laws governing copyright are set in stone. But they are situational. A copyright can be lost if not consistently defended. As a consequence, a copyright holder must pursue everything they believe to be a violation of their copyright; regardless of how asinine or stupid it appears to the rest of us. This is why Bethesda aggressively attacks every game publisher who releases a game with the word "Fallout" in the title.

 

4) Most people who use software do not understand the proprietary rights associated with a copyright. They think that downloading a software product gives them certain privileges. In reality, downloading and installing a software product obligates the software user to an agreement with the software creator or owner. Called 'Terms of Service' or 'End Use Agreement' or 'License Agreement', these are contracts and have legal ramifications should the software user violate them. The software creator or owner gets to dictate what the software user can and cannot do with their software.

 

Personally, I like the idea that I own the copyright on the mods I create. It comes with a pride of ownership and a sense of accomplishment.

 

But alas my fellow Americans (everyone else can ignore this); according to American Court decisions, any game mod is a copyright infringement on the original game. But do not take my word. Read this article from the Michigan Telecommunications and Technology Law Review. According to this article, even Bethesda's proclaimed "You own the copyright" is subject to judicial scrutiny if Bethesda gets annoyed. From my perspective these court decisions are tantamount to finding training wheels to be an infringement on Schwinn's copyright. But then; what should I expect, the law is not based on logic or reason.

Edited April 16, 2017 by PoorlyAged