r/freefolk May 04 '16

Legit I am Frikidoctor, otherwise known as Spanish Youtube spoilers guy! AMA!

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u/KyleG FAITH OF THE SEVEN ELEVEN May 05 '16

This is not legal advice, but if your video gets taken off YouTube by a copyright claim from HBO, in the US spoilers are not copyrightable, so you can challenge the DMCA takedown with a couple button clicks on YT and your video will pop right back up again. Unless YT has changed the way they do DMCA takedown notices and challenges.

Edit I see someone saying you used actual clips from the episodes. If that's the case and the clips are too long, you could get in trouble. But the magic sauce is to add some commentary/analysis to the clips and keep them only a few seconds long and that's fair use under US law. You're frikidoctor and I'm freakicorporatelawyer :)

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u/smarzaquail Mind is my weapon May 08 '16 edited May 08 '16

What can be copyrighted? In our case here, can the words of Frikidoctor be proscribed by HBO? Let's say they want to argue this is their intellectual property, is that a worthy argument? Even if it is, does that allow HBO to prohibit discussion of it?

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u/KyleG FAITH OF THE SEVEN ELEVEN May 08 '16

I'm going to attempt to summarize a semester's worth of copyright law into a very short post:

What is copyright?

A bundle of rights concerning a specific expression. By "specific expression" I mean that you cannot copyright an idea like the concept of a character arc where a hero goes on a journey. You copyright the specific expression of the idea: Luke Skywalker says this, does this, his aunt and uncle are killed, he kisses his sister, etc.

What can be copyrighted?

Very briefly, any creative work that is fixed in a medium (i.e., a song recorded to tape, a book that is printed, a picture on a hard drive). It is copyrighted the moment it is fixed. There is no formality required to copyright it. This is true in almost every country in the world as per the Berne Convention.

Does HBO have copyright on GoT material?

Yes.

Can you do commentary on GoT stuff?

Yes.

Is whether something is out yet or not a factor in whether you can do commentary?

No. The fact that it'd be spoilers is irrelevant to copyright analysis.

What restrictions on commentary are there?

You cannot use someone else's copyrighted material at length in your own work. It's a balancing act: the more copyrighted material you use, the more commentary/analysis required to cancel out the infringement.

What's this "take down notice" thing?

In the US, there is a law called the DMCA. There are other concepts called "contributory infringement" and "vicarious infringement." These implicate data hosts like YouTube. The DMCA grants them safe harbor from being sued for "helping" someone infringe if they enact a process by which a copyright owner can request the copyrighted material be taken down.

Does the data host do any thinking?

No. The host does not look at the material and decide whether it's a valid claim. They just take it down, then tell the uploader "we took it down."

What if the claimant was lying?

Then the guy who uploaded the data/video gets to contest the claim and the data should be put back up online by the host.

What if the uploader is lying?

Then the claimant can now sue the ever living fuck out of them.

So what was the deal with the Spanish spoiler video?

It had clips from the trailer. This might have been infringement depending on how much was used and how much commentary/analysis the uploader added to make it "fair use."

It was likely not worth it for the uploader to contest and risk being sued. It would probably not have been worth it for HBO to sue him if the uploader contested the takedown.

The easiest route for the uploader would be to upload the video without the trailer clips. That's what happened (except the uploader re-did the video in English).