Everything breaks eventually.

It sounds bleak. But when it comes to the devices, machines, and tools we use every single day, it’s true. You’ll push down the lever on your toaster, but your bread won’t magically change into toast. Parts inside your car will wear out, even if you only do things the average driver does. The device you’re using to read this blog post likely has a battery or drive that will fail.

We’ve all encountered objects that stop functioning. When they do, we act, whether it’s getting the object serviced, fixing it ourselves, or even replacing the whole thing. But some manufacturers intentionally limit what people can do to get their stuff working again, even if you technically have the ability to try and repair your own things. Some manufacturers include . They might hoard proprietary parts and threaten third party part manufacturers. Some companies . Manufacturers can also make their devices without breaking them further. A right to repair can alleviate consumers of some of these restrictive practices and give them more options.

Manufacturers likely find it valuable to monopolize repairs. It’s questionable whether they are obligated to help anyone break into their products for repairs, considering that it might lead to piracy. Companies may arguably make higher-quality repairs on their own products, and worth the price. The device manufacturer should know how to diagnose and fix your device better than anyone. If a device cannot be fixed, manufacturers can even replace them.

However, it doesn’t make sense to restrict competition in the repair market just because a manufacturer can make quality repairs, or for fears of piracy. Even if we accept that third parties can’t meet the manufacturer standard, this fact will likely be reflected in the prices consumers pay third party repair choices. A lack of a right to repair isn’t preventing anyone from pirating either. Consumers should at least have the option to choose, and a right of repair could help them do so.

The US is taking steps towards giving consumers these options to anti circumvention exceptions in section 1201 of the Digital Millennium Copyright Act. Consumers in the US have been given extended to “break in” to consumer software-enabled devices for diagnostics, repair, and maintenance. Consumers will be able to use software tools or enable third parties to use tools to repair devices, where previously this access may have been. There are still limits, in that these , among others. The changes also cannot stop a company from sealing their device in such a way that makes it difficult to access for repair. But it does expand and get in. It’s a nice addition to a consumer’s right to repair their own things.

Canada should follow suit, potentially by adding “repairs” as a category to the Fair Dealing exceptions to copyright. Using software tools to repair a device might , which is prohibited in , likely due to piracy concerns. But, repair exemptions could benefit Canadians, and seems to already have . Additionally, codifying existing common law rights to repair one’s property sends a clear message that Canada is dedicated to protecting the rights of consumers.

A right to repair could help make our society less wasteful. It will give consumers more options to fix their stuff instead of going to the manufacturer to fix things. It could stoke competition in the repair market, which may lower prices. It may also convince more consumers to try the do-it-yourself route, saving costs on simple repairs, and allowing people to learn more about the devices they use every day. With all the potential a right to repair regime might bring, it would be unwise to ignore what the US has done and act on our end.

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This leaves authors of works which do not qualify for these categories to seek out alternative methods of enforcing their moral rights, such as through the use of contracts and state laws. [3] An indie video game studio has recently opted to use the Digital Rights Millennium Act (“DMCA”) to champion their moral rights claim. [4]

“Let’s Play” videos involve people prerecording or livestreaming themselves playing video games so that audiences can experience their reactions and commentary as they play. The occupation is both popular and highly lucrative, with its most popular streamer, Felix Kjellberg (known as “PewDiePie”), having over 57 million subscribers.[5] The videos are generally hosted on YouTube or Twitch.tv, a live-game streaming site, and can include hours of video game content being shown online. Sometimes this can feature the experience of playing an entire video game from beginning to end. It is not hard to imagine that if this same act was replicated on other forms of entertainment media—for example, the streaming of an entire movie with commentary—then it would quickly fall victim to a DMCA takedown. But video games have never operated the same way as movies or music.

There is a tacit understanding between Let’s Play video makers and video game developers; the owners of the copyrighted work ignore the potential infringement of their copyright in turn for the free publicity that the videos generate for their games. Camp Santo, for example, loved that “people stream and share their experiences in the game.” [6] They loved it, that is, until they requested a DMCA takedown for a video of PewDiePie playing their video game, Firewatch.

DMCA allows holders of intellectual property to request takedowns from service providers. [7] It is the hated, red-headed stepchild of the internet, especially in the gaming community,�� where�� it ��is�� seen�� as�� a ��mechanism�� for�� blocking ��out�� competition�� and ��censoring��criticism.[8] Camp Santo wasn’t attempting to curtail a negative review. They simply did not want their game featured on PewDiePie’s channel. Their problem with PewDiePie? His casual use of Nazi jokes and racial slurs.

A little while ago, the YouTuber paid Indian actors to hold up signs that read “Death to All the Jews”. The stunt cost him his partnership with Disney’s Maker Studio, YouTube and Google’s Preferred ads. [9] He followed that up with the use of the n-word in another one of his live-stream videos. Neither one of these offending videos featured Camp Santo’s work. Nevertheless, Camp Santo did not want their brand and their work associated with PewDiePie. Camp Santo believed that by allowing their content to be featured on PewDiePie’s channel they were implying a tacit endorsement of his behavior, thereby tarnishing their reputation. Under the Canadian Copyright Act [10], prejudice to Camp Santo’s reputation, as the author of a work associated with PewDiePie, would constitute infringement of Camp Santo’s moral rights. In the U.S. the ambit of moral rights protection is limited to selected works which do not include video games. Google, YouTube and Disney had partnerships they could terminate, and contracts they could fall back on. Camp Santo had only the DMCA to dissociate their work from PewDiePie.

The DMCA is not a panacea to moral rights problems for works existing online. A major problem with using DMCA is the issue of the fair use exception US law. [11] Let’s Play video makers insist that their commentary makes their work a product of fair use. Since the matter has never been taken to Court, it is an undetermined area of law. Here, once Camp Santo requested the takedown, PewDiePie removed the video and it was later deleted by Google. Therefore, it remains to be seen whether this novel way of protecting moral rights may have any further use in the realm of video games.

Tina Mirzaei��is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

[1] 17 USC § 106A.

[2] 17 USC § 101.

[3] Greg J Yonover, “The Precarious Balance: Moral Rights, Parody and Fair Use” (1996) 14:79 Cardozo Arts & Entert LJ 79 at 94.

[4] Jonathan Ore. “Is Playing Video Games on YouTube a Copyright Infringement? No One Wants to Find Out”, CBC News (October 7, 2017), online: < 1.4309312>

��5����Ibid, Note 4.

[6] Kyle Orland, “Firewatch Dev Uses DMCA Against PewDiePie After Streamed Racial Slur”, arsTECHNICA (September ��11, ��2017), ��online:���� ��<https://arstechnica.com/gaming/2017/09/firewatch-dev-uses-dmca-against-

pewdiepie-after-streamed-racial-slur/>

[7] 17 USC § 1201.

[8] Sebastian C Mejia, “Fair Play: Copyright Issues and Fair Use in YouTube’s ‘Let’s Play’ and Video Game Livestreams” (2013) 1 at 5. Online: <>

��9����Supra, Note 4.

[10] See section 28.2(1) of the Canada Copyright Act RSC 1985, c. C-42.

[11] See 17 USC § 107 and 1201(c)(1).

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In the case, the court disposed of the remaining issues left undecided from the April 5, 2012, New 91��ɫ Court of Appeal decision that had most of Viacom’s case. Viacom had brought the appeal following a , which was also decided by Judge Stanton (see ���Ի��� for our previous posts on this case). ��Viacom had alleged that hundreds of thousands of unauthorized clips of its programming, such as SpongeBob SquarePants��and The Daily Show, were readily accessible on YouTube, thereby infringing its copyright. In the most recent decision, the 2nd Circuit District Court considered: (1) Whether YouTube had knowledge of the infringing activity; (2) Whether YouTube was willfully blind to the infringing activity; (3) Whether YouTube had the “right and ability to control” the infringing activity; and (4) whether YouTube could claim protection under “safe harbor” pursuant to Section 512(c) of the (“DMCA”). ��In sum, Judge Stanton found no copyright infringement on the part of YouTube with regard to any of the remaining issues.

Issue 1: Did YouTube have knowledge or awareness of any specific infringement?

On this first issue, Viacom was challenged to bring forth evidence that YouTube had actual knowledge of the 63,060 infringing clips-in-suit. Put another way, Viacom had to demonstrate not only that YouTube had general knowledge of infringing activity on its website, but that YouTube knew exactly which clips were infringing Viacom’s copyright. On this point, Viacom conceded that it did not have evidence to support knowledge of specific infringement. Viacom argued, however, that this did not matter as the onus would be on the defendant to establish each element of its affirmative defence, including lack of knowledge or awareness, if it wished to apply the statutory "safe harbor" defence. ��As such, Viacom reasoned, it would be unlikely that YouTube could demonstrate it had no knowledge or awareness whatsoever of infringement, given the high volume of copyright-infringing material uploaded daily onto YouTube. ��On balance, the judge held that Viacom’s argument was “extravagant” and that per Congress, the DMCA was enacted specifically to protect service providers from the very burdensome task of monitoring for infringing material uploaded by users.�� Judge Stanton held that it was both fair and reasonable, under the DMCA, to place the burden of identifying infringing material on the copyright owners and that Viacom failed in establishing specific infringement by YouTube.

Issue 2: Was YouTube willfully blind to specific infringements?

On this second issue, the court explained that the threshold for willful blindness depended on the particular law governing the factual situation. Specifically, for cases under the DMCA, the threshold for willful blindness and subsequent disqualification from “safe harbor” is blindness to “specific and identifiable instances of infringement”.�� In the case at bar, the court did not find that Viacom provided specific locations of infringement, thus leaving YouTube to find the infringing clips on its own. ��Under these circumstances, it could not be��said that YouTube was willfully blind towards infringing activity, pursuant to the “safe harbor” provision of the DMCA. The holding on this issue is nicely summed up in a footnote of the decision: “Plaintiffs often suggest that YouTube can readily locate the infringements by using its own identification tools. [YouTube] has no duty to do so.”

Issue 3: Did YouTube have the “right and ability to control infringing activity” per ��of the DMCA?

On this third issue, the court defines the ability to “control infringing material” as requiring “'something more' than just the ordinary power over what appears on the provider’s website.” ��As such, the fact that a provider may be able to remove or block access to material posted is not sufficient to meet the threshold of control set out in of the DMCA. The governing principle on the “right and ability to control infringing activity” is set out as follows: “Clear knowledge of the prevalence of infringing activity, and welcoming it, does not itself forfeit "safe harbor". To forfeit that, the provider must influence or participate in the infringement.” ��Under this governing principle, the court held that YouTube did not meet the threshold for “influence” or “participation,” in contrast to - the only case to date in which a service provider was held to have met the required “something more” by strictly controlling user experience on its website and refusing access to users who failed to comply with its instructions.

Issue 4: Did YouTube syndicate the clips-in-suit to a third party, and if so, did such syndication occur “by reason of the storage at the direction of the user” within the meaning of ��of the��DMCA, so that YouTube may claim safe harbor?

On this fourth and last issue, the court quotes YouTube’s brief in reasoning that “syndication agreements merely give users alternate ways to view videos that users have stored on YouTube’s system.” ��As such, the court held that syndication merely provides access to material uploaded by users and does not imply that YouTube manually selected the infringing materials delivered over mobile and other systems, thus allowing the service provider to claim protection of "safe harbor".

Conclusion

Does the��DMCA��tend to favour the service provider over the copyright holder? ��In my opinion, this most recent decision reflects a broader, ongoing struggle to protect the commercial value of artistic production while allowing service providers like YouTube a certain amount of lee-way to develop their platforms for users. Enacted in 1998 under the Clinton Administration, the DMCA was drafted to comply with the�� and the . ��The "safe harbors" provision is, arguably, one of the aspects of the DMCA. ��On the one hand, as outlined in the discussion in Viacom v Youtube, it allows for service providers to develop their platforms for third-party users without the overhanging risk of copyright liability. ��In this manner, user-generated content is given the space to flourish, hosted by various online platforms. ��However, the "safe harbors" provision can also place a tremendous burden on copyright holders to monitor these service providers for potential infringement of their intellectual property. ��Short of having round-the-clock staff monitor sites such as YouTube, it is likely that copyright infringement would occur on a regular basis. ��Perhaps it is too early to take a side, but as it now stands, under the DMCA,��copyright holders must do much of the legwork in protecting their creative productions.

Recent amendments to the����under ��("CMA")��have propelled Canadian IP legislation into the twenty-first century, as the last modification occurred in 1997.���� that the "enabler provisions" of the amended legislation, along with increased tightening of the digital locks provisions, could potentially have led to a different outcome for Viacom, had it been a Canadian case. ��Under the CMA, the service provider is liable for copyright infringement merely if it��"enables" copyright infringement, which��is a less onerous burden to meet for the copyright holder than that of "specific knowledge" of copyright infringement under the��DMCA.����On the other hand, the "enabler provision" under the��CMA��is being for encouraging innovation in digital products from the copyright holder's perspective.����Barry Sookman argues that these new amendments, which are in line with WIPO Treaties standards, will allow Canada to become a bigger player in the twenty-first century by expanding legal protection for developers and copyright holders. ��Looking forward, as the digital and legal-scapes develop and expand, the Canadian Federal Court may find a homegrown��Viacom v Youtube��on its docket soon rather than later.

Ying Cheng is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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