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Content Moderation Case Study: Electric Truck Company Uses Copyright Claims To Hide Criticism (2020)

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Summary: There are many content moderation challenges that companies face, but complications arise when users or companies try to make use of copyright law as a tool to block criticism. In the US, the laws around content that allegedly infringes on a copyright holder’s rights are different than most other types of content, and that creates some interesting challenges in the content moderation space.Specifically, under Section 512 of the Digital Millennium Copyright Act (DMCA), online service providers who do not wish to be held liable for user-posted material that infringes copyright need to take a few steps to be free of liability. Key among those steps is having a “notice-and-takedown” process, in which a copyright holder can notify the website of allegedly infringing material; and if the website removes access to the work, it cannot be held liable for the infringement.This process creates a strong incentive for websites to remove content upon receiving a takedown notice, as doing so automatically protects the site. However, this strong incentive for the removal of content has also created a different kind of incentive: those who wish to have content removed from the internet can submit takedown notices claiming copyright infringement, even if the work does not infringe on copyright. This creates an interesting challenge for companies hosting content: determining when a copyright takedown notice has been submitted for illegitimate purposes.

In September of 2020, news was released that Nikola, an alternative energy truck company’s promotional video showing its new hydrogen fuel cell truck driving along a highway was false. A report by a research firm criticized the company, saying that the truck did not move under its own propulsion. As it turned out, the truck did not actually have a hydrogen fuel cell and was instead filmed rolling downhill; Nikola admitted that it had faked its promotional video. In Nikola’s response, it admits that the truck did not move on its own, but it still claimed that the original report was “false and defamatory.” While the response from Nikola does highlight areas where it disagrees with the way in which the research firm wrote about the company’s efforts, it does not identify any actual “false” statements of fact.Soon after this, many YouTube creators who made videos about the situation discovered that their videos about the incident were being removed due to copyright claims from Nikola. While video creators did use some of the footage of the faked promotional video in their YouTube videos, they also noted that it was clearly fair use, as they were reporting on the controversy and just using a short snippet of Nikola’s faked promotional video, often presenting it in much longer videos with commentary.When asked about the situation, Nikola and YouTube spokespeople seemed to give very different responses. Ars Technica’s Jon Brodkin posted the comments from each side by side:
"YouTube regularly identifies copyright violations of Nikola content and shares the lists of videos with us," a Nikola spokesperson told Ars. "Based on YouTube's information, our initial action was to submit takedown requests to remove the content that was used without our permission. We will continue to evaluate flagged videos on a case-by-case basis."YouTube offered a different description, saying that Nikola simply took advantage of the Copyright Match Tool that's available to people in the YouTube Partner Program."Nikola has access to our copyright match tool, which does not automatically remove any videos," YouTube told the [Financial Times]. "Users must fill out a copyright removal request form, and when doing so we remind them to consider exceptions to copyright law. Anyone who believes their reuse of a video or segment is protected by fair use can file a counter-notice."
Company Considerations:
  • Given the potential liability from not taking down an infringing video, how much should YouTube investigate whether or not a copyright claim is legitimate?
  • Is there a scalable process that will allow the company to review copyright takedowns to determine whether or not they are seeking to take down content for unrelated reasons?
  • What kind of review process should be put in place to handle situations, like what happened with Nikola, where a set of videos are reported as copyright violations and are taken down because those videos featured the copyrighted material as news or commentary, and the copyright infringement takedown requests were improper?
  • Improper takedowns can reflect poorly on the internet platform that removes the content, but often make sense to avoid potential liability. Are there better ways to balance these two competing pressures?
Issue Considerations:
  • Copyright is one of the few laws in the US that can be used to pressure a website to take down content. Given that the incentives support both overblocking and false reporting, are there better approaches that might protect speech, while giving companies more ability to investigate the legitimacy of infringement claims?
  • Under the current DMCA 512 structure, users can file a counternotice with the website, but the copyright holder is also informed of this and given 10 days to file a lawsuit. The threat of a lawsuit often disincentivizes counternotices. Are there better systems enabling those who feel wrongfully targeted to express their concerns about a copyright claim?
Resolution: After the press picked up on the story of these questionable takedown notices, many of the YouTube creators found that the takedown demands had been dropped by Nikola.In July of 2021, nine months after the news broke of the faked videos, Nikola’s founder Trevor Milton was charged with securities fraud by the SEC for the faked videos.Originally posted to the Trust & Safety Foundation website.

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posted at: 12:00am on 11-Nov-2021
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Denuvo Games Once Again Broken For Paying Customers Thanks To DRM Mishap

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It's been a while since we've mentioned Denuvo, the once-vaunted anti-piracy video game DRM that subsequently became an industry punchline. Once touted as "uncrackable", Denuvo went from there to becoming indeed crackable, then crackable shortly after release of games, to then being crackable the same day, to then being cracked in some cases hours after a game's release. As a result, plenty of publishers have taken to patching Denuvo out of their games, while Denuvo did a mini-pivot to create anti-cheat software for online games. While all that was going on, plenty of paying customers of games protected by Denuvo complained about various issues: authentication issues intermittently preventing the customer from playing the game they bought, performance issues that are linked back to how Denuvo runs and behaves, or Denuvo simply breaking games.In other words, Denuvo is a case study in real world DRM: no real protection from piracy, but plenty of headaches for paying customers. If that sounds like a recipe for disaster, well, yeah. But, it's an ongoing disaster, it appears. A whole bunch of PC video games suddenly became unplayable this past week, such as Marvel's Guardians of the Galaxy.

The problem seemed to appear after players updated the game, leading some to believe that code may have broken the game. However, as more and more complaints came in, another potential problem was identified. It was so simple as to be almost unthinkable but so devastating that it rendered games completely useless.
Once the same reports of games failing to load came in about several other titles, Twitter lit up about the topic. From there, the internet did its sleuthing thing and the one commonality uncovered was Denuvo DRM software. One Twitter denizen poked around and appears to have figured it out: someone at Denuvo forgot to renew a domain.
“@PlanetZooGame @shadowofwargame your DRM provider has let their domain name lapse, and it’s killed your game startup… along with multiple other games I imagine,” he wrote.Buckland identified the domain ‘codefusion.technology’ as the culprit and offered a screenshot of its WHOIS records, which clearly shows that the domain expired on September 24, 2021, and had not been renewed. Following the failure to renew, the domain then went into a grace period but when that expired too, it appears to have been removed from DNS records. This meant that the domain would not resolve to an IP address, effectively breaking the system.
Now, that domain has now been renewed, so the problem for those gamers and games is fixed. But that cannot be the end of the story. For starters, TorrentFreak reached out to its regular contacts at Denuvo to get their take on all of this, but got undeliverable bounceback messages. Why that would occur is not currently known, but it's all just messy. In addition, the lack of communication or accountability from Denuvo or its parent company, Irdeto, is infuriating.
In the meantime, someone has now renewed the codefusion.technology domain, which appears to have solved players’ problems. It’s now set to expire on September 24, 2022, meaning just a single year was added to the bank. Hopefully next year doesn’t bring similar problems.
And by problems we apparently mean paying customers unable to play the games for which they paid, all because someone on Denuvo's side couldn't be bothered to keep its own domain up and running.And that's the story of DRM. Again, anyone who pirated these games is not having a single problem. Only those that forked over cash to play are impacted. How that isn't the end of DRM adoption by the gaming companies is completely beyond me.

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posted at: 12:00am on 11-Nov-2021
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