Andrew Masson is an IPilogue Writer and 2L JD candidate at Osgoode Hall Law School.

DMCA (Digital Millennium Copyright Act) strikes and disputes are often thought about in the context of music and video, however, it can be for any copyrightable content. , an entire blog website of a crypto critic was consequently removed due to multiple DMCA strikes. However, these were fraudulent claims that utilized a back-dating technique to fake plagiarism.

Image Source:

Mike Burgersburg published multiple articles critical of cryptos on his blog hosted on . Then, a company called UNFT News copied those articles and published them on their website but post-dated them. So, it appeared that Bursgerburg had plagiarised their work. UNFT News then issued multiple DMCA claims against Bursgerburg using DMCA.com. Given it did this for multiple articles he was subject to Substack’s and missed the deadline to refute the claims. Therefore, he temporarily lost his blog by July 15, 2022. The blog was later reinstated and Burgersburg was able to respond to the claims . Yet the situation highlights the major flaws in the DMCA system.

DMCA perjury

The issue with the current format of DMCA is that it acts as a shield for larger hosting sites and a sword from any person regardless of the validity of their claim. Although submitting a false DMCA claim leaves someone open to perjury, it seems to rarely be enforced. Currently, there is mass abuse of the DMCA system.

is a project launched by the Berkman Klein Center for Internet & Society at Harvard University that was specifically designed to examine this problem. , they looked at DMCA notices provided to Google for articles and found that June 2019 and January 2022 there were 33,988 deliberate fraudulent attempts to misuse DMCA. 99.2% of these fraudulent attempts were unsuccessful, but there were still 300 successful fraudulent takedowns. Although Google's system is very good at identifying these fraudulent DMCA notices, just by the sheer number of attempts they have an impact on free speech on the internet. Additionally, there was no mention of any repercussions for the 99.2% of fraudulent DMCA notices.

Why DMCA abuse may have become more prevalent

It appears there are two motivations and scales of fraudulent DMCA claims. 1) Groups acting as large-scale . Lumen found that almost all the fraudulent DMCA notices examined were sent for articles relating to criminal allegations against . 2) DMCA claims were a small-scale targeted attack on a specific blog, like Burgersburg’s blog.

For the latter claims, there may be ignorance about the consequences and the perceived minimal risk due to the lack of enforcement that has stimulated that form of abuse in the system. However, there is probably more that can be said about the impact of perceived online anonymity and the remote nature of the internet that leads to people perjuring through false DMCA strikes. Currently,  DMCA’s penalties of damages and lawyers’ fees do not seem to be a strong deterrent to fraudulent claims. Many people are like Burgersburg, they get these DMCA strikes and fight to get their content back up. But those that commit perjury through the DMCA notice rarely face any consequences.

The post Weaponizing DMCA’s: How Copyright Systems are Being Abused to Restrict Speech appeared first on IPOsgoode.

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).

The post DMCA Used to Enforce Moral Rights in Video Games appeared first on IPOsgoode.

The US  (1998), in addition to increasing criminal penalties for infringement of copyright material, offers a mechanism of ‘Online Copyright Infringement Liability Limitation’ by which service providers may escape criminal penalties if they are compliant to copyright owners’ demands to remove infringing content. Such demands are made simple to file, but nothing short of immediate compliance is required.

So who qualifies? The act defines a service provider as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received”, thus ensuring a content-neutral stance must be adopted by the service provider in question. Further limitations are granted based upon the variety of service being provided (with the act enumerating a total of four categories of service provider). s.512(c) provides that, for services that direct information at users (websites being the most common example of this), the following three conditions must be met to qualify for limited liability:

1. The provider must not have the requisite level of knowledge of the infringing activity, as described below.
2. If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity.
3. Upon receiving proper notification of claimed infringement, the provider must expeditiously take down or block access to the material.

The website ‘Grooveshark’ is a  (UGC) site, in which music is uploaded to the service via its members. At issue in this case was the allegation from Universal Media Group that although the website was complying with requests to remove infringing material, it had not only express knowledge of infringing activity, but the company was built by encouraging employees to upload infringing material in order to build enough content to attract traffic to the site.

The court found Escape (Grooveshark) liable on three counts for copyright infringement: directly liable for direct infringement (volitional conduct by the directors and employees of the company), and secondarily liable for the actions of its users. Secondary infringement has no statutory basis for a finding of liability, although after  the common law in the US gives room to find a defendant liable if there is ‘just cause’. In the case of Grooveshark, this is easy enough to ascertain: the company was found to have directly encouraged users to upload violating material, and provided the means to do so. Furthermore, it was evident that Grooveshark was raising revenue from advertising on the site, which would also qualify a failure on the second point above.

Canada has its own Safe Harbour provision in the Copyright Act���ܲԻ�����, although in a much more simplistic form. It offers service providers an escape by deeming any person that only provides the means of telecommunication necessary for another person to communicate the work to the public to have not communicated the work to the public themselves (which would be the basis for infringement). Thankfully this has received , who reasoned that the service provider exception could only apply to participants in a telecommunication who only provide “the means of telecommunication necessary”, and remain strictly a conduit, in which case liability is avoided. This requires a strictly “content neutral” approach to hosting services, in which any knowledge of the actual content could provide the basis of liability. For the purposes of Grooveshark and other UGC websites, this offers similar grounds to the conditions of the DMCA “Safe Harbor”.

In a nutshell, although we don’t have a specific statutory scheme here in Canada, the failure to remove infringing content from a server or website can be taken as evidence of authorization, though it is not considered as determinative as in the US. While the US system operates on a “notice and takedown” basis (in which receipt of a notice can potentially provide the basis for liability), Canada divorces the liability from the remedy, so that  (see ss. 41.25 and 41.26). That’s not to say that Grooveshark would escape a finding of liability in Canada, but for service providers who operate in good faith, the threat of being found secondarily liable of infringement is not present. In an era where US sites are being subject to , one can argue that the Canadian playing field offers a good deal more stability for service providers than our neighbors to the South.

Andrew Hunter is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post Grooveshark Fails to Navigate DMCA Safe Harbor appeared first on IPOsgoode.