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Andrew Masson is an IPilogue writer and 1L JD candidate at Osgoode Hall Law School.

YouTube content creators must be hyper-aware of copyright. In one of the strangest instances of a copyright takedown, Bungie, the developer of Destiny 2, was issued on their own YouTube page for content they created and held copyright in. In Bungie’s most recent (This Week At Bungie), they revealed that someone had impersonated CSC (the company Bungie partners with to protect their IP) to target Bungie and Destiny content creators with DMCA strikes.

The IPilogue published a piece on DMCA strikes. DMCA strikes are the mechanism by which content hosting websites can protect themselves from litigation by IP holders. The penalties for DMCA violation on YouTube are severe. After three strikes, a channel is . Thankfully for the targeted content creators, their videos were enabled and the fraudulent strikes removed.

The provided some rare insights into how Bungie handles its IP protection. Early speculation was that it was an algorithm error, but Bungie clarified that they do not use or authorize CSC to use algorithms on YouTube to issue takedowns. Another prominent rumor was that their recent had meant Sony Entertainment was instituting stronger IP protections. However, Bungie stated that all CSC actions are manually reviewed and authorized by Bungie, indicating Sony has no part in Bungie’s IP protection. It also would not have made sense for Sony to issue a DMCA strike against Bungie, the first indication that these DMCA strikes were a targeted attack.

that the targeted attacks occurred because of recently issued legitimate strikes against people publishing their OSTs (original soundtracks) on YouTube. It is believed that those individuals targeted Bungie and content creators as a result. The creators they targeted were publishing Destiny content but had not violated bungie’s . The creators and their communities were initially upset with Bungie over the strikes. However, Bungie and YouTube quickly resolved the issues with Google identifying the fraudulent accounts that originated the DMCA strikes and removing them.

Bungie has used to control the narrative concerning the attacks. It prides itself on being responsive to its community and encouraging . By handling all DMCA actions manually, Bungie is demonstrating that it wants to enforce DMCA strikes only against actual violations. People will be less fearful and more prone to creating with the Destiny IP. Additionally, Bungie has dedicated themselves to working with creators to publish more of their OSTs not currently available on their channels.

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Andrew Masson is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

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Popular Twitch streamer Jeremy “Disguised Toast” Wang has exposed a massive flaw in the live-streaming platform Twitch’s . For those unfamiliar, Twitch is a live-streaming platform where content creators (i.e., streamers) broadcast themselves to an audience doing almost anything including playing video games, cooking, making music, performing ASMR, walking around in public, debating politics, etc. Viewers can tune into Twitch streams for free, but streamers and Twitch make money through viewers subscribing or donating. Twitch has been featured on the IPilogue in the past (relating to , , and the ) but this case is unique as it involves a different form of copyrighted media: TV shows.

Twitch Popularity

Since the start of the pandemic, live-streaming services have seen a massive increase in viewership. Twitch specifically in 2020 compared to 2019, with viewers clocking over 17 billion hours on the platform. It also gained more mainstream appeal, with American politician in 2021. With the increase in viewership, there is more money to be made and more people who have started streaming; streamers must now compete to attract and maintain viewers by providing engaging content. In the last couple of weeks, this has led to the “”, where streamers broadcast copyrighted TV shows and react with their viewers. feature and took it to the extreme by streaming an entire season of the popular anime Death Note over two weeks.

DMCA and Twitch

Wang had a fellow streamer initiate takedown claims against his broadcasts under the (“DMCA”) but was still able to stream Death Note for two weeks before Twitch acted against him. In , the IPilogue questioned how the DMCA will impact video hosting platforms. The DMCA protects platforms that host user-generated content against litigation; however, to be eligible, the platform must investigate and take down allegedly infringing material. Accordingly, states that when they are contacted regarding copyright violations or receive a takedown notification under the DMCA, they verify the claim and then issue a “DMCA strike” (signifying a confirmed copyright infringement) and a temporary ban against the streamer. Twitch has a 3-strike system—once a streamer receives three DMCA strikes, their account will be permanently deleted. Wang previously had not received any DMCA strikes and stated that he broadcasted Death Note as a warning to other streamers against broadcasting copyrighted material.

Wang’s experiment may have failed to scare other streamers because it took so long for Twitch to take action, but he did expose a massive issue with Twitch’s ability to protect copyright holders' interests. Twitch is not the first streaming platform to face these issues; in 2007, and a billion dollar lawsuit. This led to the creation of YouTube’s “Content ID” system to monitor posted videos and livestreams for music and other copyrighted material. However, not all forms of copyrighted material will be taken down on Twitch or YouTube as video game developers and publishers do not necessarily issue DMCA takedowns for streaming their released games.

Given that Twitch started as a niche platform consisting almost exclusively of people live-streaming video games and playing music from 2011 to 2019, they rarely received DMCA takedown requests. According to Twitch, they received fewer than 50 takedown notices a year before 2020; however, as streaming became more popular, increased exposure caught the attention of the music industry who began issuing . This resulted in Twitch implementing tools to check vods (i.e., recorded streams or clips saved by streamers), delete any with copyrighted material, and warn streamers to stop playing copyrighted music during their streams.

Future of Twitch

As Wang demonstrated, Twitch’s ability to police copyrighted material on their platform is still far behind that of YouTube. They seem unequipped to handle their massive increase in popularity and evolution in types of material live-streamed. Apart from music, Twitch is in the same position that YouTube was many years ago; they need to improve their ability to protect IP or risk losing protection from liability under the DMCA. This is significant because one of the media giants whose IP is being used may decide to go after Twitch as a platform instead of individual streamers.

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Natalie Bravo is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

is an online free-to-play gaming platform where users can develop games and play online together. Its increasing popularity among teenagers and children, especially during the pandemic, has sparked multiple . Music has become a large component of Roblox, with artists like Lil Nas X hosting . Roblox even lets users upload songs for game-building, a feature that resulted in a copyright lawsuit.

Back in June 2021, The National Music Publishers’ Association (NMPA) Roblox for allowing users to upload copyrighted music without paying a licensing fee. The lawsuit was filed on behalf of various music publishers, including major players like Kobalt Music Publishing America and Universal Music Corporation. The in copyright damages, among other court orders to enhance control over in-game piracy on Roblox.

The Association “Roblox actively preys on its impressionable user base and their desire for popular music, teaching children that pirating music is perfectly acceptable.” Roblox actively encourages music uploads, charges users, and even sells virtual items to allow for in-game listening. The lawsuit further alleged that Roblox has established control and a moderation team to address content that is against policy but does not monitor music licensing in uploads.

Shortly after the lawsuit was filed, Roblox signed music partnerships with both and to license many popular songs. Along with these deals, Roblox expressed a commitment to monitoring DMCA complaints. On September 27, Roblox announced that they have their lawsuit with the NMPA, and further that the settlement “sets the foundation for future partnerships with global publishers that will unlock new creative and commercial opportunities on its platform.” The agreement encompasses an expansive licensing agreement between Roblox and the music publishing industry that allows individual publishers to opt-in or enter into individual negotiations.

The settlement is great news for the gaming company and its outlook after on the New 91��ɫ Stock Exchange earlier this year. While the deal does not explicitly cover licensing for all songs, it shows that Roblox has a lot more in store on the music front. Hopefully, this means more virtual concerts!

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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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Since the end of last year, the Copyright Office has accepted public submissions for the new batch of exemptions. Currently, 27 proposed classes of works are under consideration, and the finalized list of exemptions is set to be announced in the fall. ��Although many of the proposed classes have been either previously accepted or considered, there are several notable additions, including: “” and “”

While automotive repairs and modifications have been historically associated with patent disputes, the introduction of vehicle software creates a new ambit of protection for manufacturers under copyright law. Much debate between automotive industry insiders, aftermarket suppliers, independent repair shops and car enthusiasts has focused on alterations to the Engine Control Unit ("ECU"), a type of electronic control unit that manages functions of the car engine. ECUs are often modified by car owners and independent mechanics in order to alter performance of and customize vehicles. One example is the modified of The Fast and the Furious fame. Though the film's protagonists��may not exactly typify average car owners, those who want to have their cars fixed by independent mechanics or even personally tinker with them may be prevented from doing so under the current law.

of the vehicle software exemption have argued that modifications to ECU firmware fall squarely under fair use. Further, the use is non-infringing when car owners access, copy and modify vehicle firmware as outlined by of the Act. Conversely, have argued that an exemption would undermine the safety and regulatory standards of vehicles. An unscrupulous mechanic or unwary amateur may weaken vital mechanisms of a vehicle and not only diminish its performance but create additional liability for the manufacturer.

The other new proposed class exemption involves 3D printers. ��Currently, many manufacturers of 3D printers require their customers to purchase proprietary cartridges with approved feedstock; otherwise, the printer is prevented from functioning by technological protection measures ("TPMs"). has proposed that non-manufacturer-approved feedstock should be exempted from DMCA liability circumvention of TMPs that control access to the 3D printer’s software. The of this exemption have argued that it would negatively affect the market in at least 3 ways: “(1) it would threaten the value of a manufacturer’s 3D printers; (2) it would undermine security protections for intellectual property and confidential information embedded on printers; and (3) it would undermine growth in the overall market for 3D printers and 3D printed objects by placing at risk technological advances enabled by secure, fully-integrated 3D printing systems.” While the exemption sought does not considerably differ conceptually from unlocking a telephone or a tablet, it highlights the technological advances and improved accessibility of 3D printing.

It should be noted that in previous reviews exemptions have been granted to a handful of classes; in fact, the last review of 2012 was quite . Although the Library of Congress granted an exemption to permit the interoperability of “jailbreaking” application on wireless telephones, it omitted e-readers and tablets from the exemption. Moreover, the Copyright Office decided not to renew the exemption for unlocking wireless telephones through user self-service. The latter decision generated significant public outcry and led to the enactment of the which temporarily reinstated the old DMCA exemption. is up for review again this year.

Whether or not one thinks these exemptions are warranted, the sheer breadth of classes up for review this year cannot go unnoticed. More and more industries are becoming affected by electronic commerce and copyright law. It will be interesting to see how the various competing interests will be balanced this time around.

Anastassia Trifonova is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

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These exceptions were granted by the Library of Congress in accordance with DMCA��, which allows the Library to set exceptions for a period of three years.�� Although the exercise of the power is not unusual, the list of exceptions seems to be lacking an overall theory as to which digital protections the public should be allowed to circumvent.

The exception for “” are justified on compassionate grounds.�� This exception allows persons with disabilities to disable any measures that prevent an electronic literary work from being read aloud or otherwise assisted read.�� This section makes electronic books (eBooks) available to be read on devices which are used in assisted reading, in order to make eBooks more accessible to people who require the assistance.

The exception for “” appears arbitrarily limited.�� This exception allows users to use computer programs which allow wireless telephones to run software that it was previously unable to run.�� The same exception does not apply to tablets.�� Proponents of this exception argued that this “” of devices was within the US definition of��.�� The reason that the Library of Congress rejected the proposal that the exception should apply to tablet devices was because the class of devices “”.�� If that justification appears to be an odd reason to reject the application of this exception to tablets, I would suggest that Library of Congress may simply not have had enough data on tablets to feel comfortable extending the exception.

Those who advocated that the exception was justified by fair use suggested that the exception would have a negative impact on the sale of mobile telephones.�� The Library of Congress was able to reject that principle on the basis that the data on mobile phone sales since 2010, when the exception was originally enacted, did not appear to have been impacted by the DMCA exception.�� Perhaps tablet devices were simply too new in the market for the Library of Congress to draw the same conclusion.

But as confusing as the actual exceptions are, the reasoning behind the Library of Congress rejecting certain exceptions is even less principled.�� The Library of Congress rejected the exception for “time-shifting” of DVDs purchased legally for non-commercial personal use.�� “Time-shifting” refers to making digital copies of DVDs, specifically to allow these works to be viewed on devices which lack DVD drives.�� The Library of Congress said that “no court has held that 'space-shifting' is a fair use.” ��While I agree that the statement is technically true, the Library of Congress was presented with��.�� In that decision the court said:

“When these factors are all weighed in the "equitable rule of reason" balance, we must conclude that this record amply supports the District Court's conclusion that home time-shifting is fair use.”

Is time-shifting (recording) television shows really theoretically different from space-shifting?�� The Library of Congress appears to make a��,��but, in my opinion, missed the point.�� They have the legislative authority to create exceptions to digital management circumvention laws.�� If their power was only limited to codifying existing exceptions in law then their power is redundant.�� They appear to be unwilling to consider the fair use analysis presented to them by the proponents of this exception, and instead simply rely on whether or not courts have already made space-shifting an exception.

Canada is about to adopt its own section on����into its Copyright Act. ��Hopefully Canada’s exceptions to the law will be more principled and consistent than those in America.

Adam Stevenson is a JD Candidate of Western University, Faculty of Law.

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Intended to be released in September 2008, the RealDVD software provided users with a variety of functions, including the copy and storage of DVDs to a computer hard drive for safekeeping and later playback. ��The software would also act as DVD jukebox, allowing users to store up to 70 DVDs in their archives for organizing and playback of DVDs in a user friendly interface. However, with concerns of DVD pirating and a breach of licensing agreements, motion picture studios and DVD-CCA filed a lawsuit on September 20, 2008 asking for a temporary restraining order on RealDVD's release.

One of the main issues in the case was whether RealDVD complied with the Content Scramble System (CSS) Licensing requirements. CSS is a Digital Rights Management scheme licensed by DVD-CCA that incorporates encryption and authentication keys into DVD releases, drives and players. CSS schemes are able to prevent byte-for-byte copies of DVDs from being playable as the output is 'scrambled' without the proper decryption keys. CSS technology also requires that a DVD player authenticate itself to specific DVD drives. DVD playback is tied to the DVD itself in an authorized DVD drive. ��As such, playback of a DVD will fail if the physical DVD is not within the DVD drive. As many DVDs on the market incorporate CSS technology, most DVD players require a CSS decryption module.

RealNetworks obtained a CSS license from the DVD-CCA for its RealDVD product. Under the agreement, the licensee is to "provide reasonable security to the contents of DVD discs...and to provide protection for copyrighted content against unauthorized consumer copying". The licensee also agrees to prevent "digital-to-digital copying in a personal computer environment". However, the line of RealDVD products purposely enables users to make these digital-to-digital copies of DVDs. Real software engineers developed software that was able to circumvent the methods of CSS copy-protection and other anti-piracy technologies such as ARccOS and RipGuard in order to enable users to create their digital archives.

DVD-CCA claimed not only a breach of contract, but also a violation of the Digital Millenium Copyright Act (DMCA) which prohibits the circumvention of copy-protection schemes.

The DMCA's access-control provision under s.1201 (a) prohibits manufacturers and users from producing or using devices that circumvent technological measures that controls access to the copyrighted work. It also provides for specific exemptions (currently six issued by the Librarian of Congress) that excuse circumvention in cases ranging from educational use to certain obsolete computer programs.

DMCA also contains s.1201 (b) which prohibits using or selling devices that circumvent protection afforded by a technological measure that protects the rights of a copyright owner (e.g. copy-protection), that parallels the ban found in s.1201 (a). However, s.1201 (b) does not have the specific exemptions found in s.1201(a) and is only subject to s.1201(c) which provides for the possibility of the right of fair use.

According to the U.S. Copyright Office, the omission of the specifically tailored exemptions for s.1201 (b) was intentional so it could accommodate the copying of a work as fair use under certain circumstances. Released as a DMCA U.S. Copyright Office Summary, it stated that the omission was to ensure that "the public will have the continued ability to make fair use of copyrighted works. Since copying may be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumventing a technological measure that prevents copying."

As pointed out by Judge Patel, Congress did not intend to regulate users with authorized access to copyrighted works, and thus the DMCA implicitly recognizes a "user exemption" for fair use. Real has argued that this user exemption would include users who wish to copy DVDs for personal use. Patel, however, has declined to decide in this trial whether the "user exemption" would always include the making of personal copies.

Real also argued that DVDs are no different than CDs in the music industry. If users are able to make backup copies of their CDs or to transfer its contents to a computer or an iPod for personal use, a distinction should not be made for DVDs. The RealDVD platform had also relied upon a previous California ruling in DVD-CCA v. Kaleidescape that decided Kaleidescape's DVD jukebox software was not in violation of CSS Licensing agreement.

While Judge Patel appreciated Real's argument that a "user exemption" under the DMCA should include the making of personal copies of DVDs, Patel also ruled that Real is a manufacturer, which is not exempt from the DMCA's ban on trafficking devices that circumvent copy-protection technologies. Additionally, the DVD-CCA v. Kaleidescape ruling does not apply to Real's situation as the nature of the contract had changed. The Real CEO's belief that Kaleidescape's product was legal was a mistake and no evidence was shown that Real communicated to DVD-CCA that it intended to construe the Kaleidascape decision as authority to produce RealDVD.

Judge Patel's decision is not surprising given the current push for strengthening of anti-piracy legislation. Interestingly, this case brings attention to the issues that arise from Congress' attempts to provide fair use exemptions while weakening access to pirating technology.

But if I am allowed to make backup digital copies of DVDs for personal use, yet it is illegal for anyone to manufacture a device that allows me to make copies, I would essentially have no means of exercising my right of personal use in this manner. I may not have the technical expertise to create my own personal DVD copier, but would larger grassroots attempts in providing ways to copy DVDs also fall under DMCA's "user exemption" (e.g. release of open source software to the public on the internet)?

It seems that the attempt by Congress to legislate this balancing act has left many holes yet to be filled when the issues arise. As it stands, the "user exemption" for backing up DVDs under the DMCA is still largely non-existent - but we have stronger anti-piracy protection.

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