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PewDiePie Dives Into The Mark Fitzpatrick, Toei Animation Saga

Furnished content.


We had just been talking about how Mark Fitzpatrick, a YouTube personality who focuses on doing reviews and let's draws for anime properties, had been targeted by Toei Animation for the takedown of over a 150 of his videos over copyright claims. Toei is the animation house for several popular animes, including the Dragon Ball series. While Fitzpatrick's videos fall squarely in the category of fair use, as they are chiefly commentary and reviews that use snippets of the animes in question in order to illustrate points, because of the onerous way YouTube enforces such claims, his videos were taken down first and remain down at the time of this writing.Well, if Toei was hoping this would all fly under the radar, it most certainly is not. Fitzpatrick's own video complaining about how Toei is behaving itself has over 700k views. And now streaming icon Pewdiepie is inserting himself into all of this, squarely on on Fitzpatrick's side.

On December 9, PewDiePie uploaded a video reacting to Toei’s apparent mass copyright strike against Fitzpatrick, calling the studio a “big-shot company that couldn’t care less about some random anime YouTuber.”“Japan is so notoriously dumb when it comes to copyright,” he said. “Backwards thinking or just overall lacking in what most people agree is Fair Use and not. They just don’t care. They’re a big company. That’s it.”
Now, I'm not in love with Pewdiepie's phrasing in all of this, but he certainly is correct that the manner in which Japan has constructed its copyright laws is highly problematic. There is a reason that plenty of nations have built in fair use provisions into their copyright laws and they are for situations just like this. Nothing about the use in Fitzpatrick's videos in any way threatens the business of Toei Animation. There may certainly be some commentary in his videos that Toei doesn't like, but that's a different thing. Copyright laws in general weren't created in order to give content creators the ability to suppress commentary; they were supposed to be a method for protecting the business interests of creators. Instead, there are several carveouts in Japanese copyright law that were added specifically to grant more control over how content is used for the anime and manga industries.Pewdiepie is also no dummy on this stuff. It's his business, after all, and he knows enough about it to point to past examples of how badly this all works when it comes to properties coming out of Japan.
Kjellberg went on to compare Toei’s copyright claims to Nintendo’s failed creator program, which allowed creators to use game footage and music — provided they split their revenue.“I think it’s important that we call these things out, so that hopefully they can listen,” PewDiePie continued. “This, what happened to Mark, just really highlights a huge issue with YouTube.”
And he then turned his sights on YouTube in full, arguing that the manner in which the platform enforces copyright claims is extremely tilted against YouTube creators.
“Any day, your livelihood on YouTube could get removed, because some big company decided, out of the blue: ‘That, no. Stop that,'” he added.
To be fair to YouTube, as I stated in the previous post on Fitzpatrick's tribulations, this is not an easy problem to solve. But it is a problem and YouTube honestly doesn't seem to be doing much about it. If that continues, there's no reason why the struggles Twitch has had retaining its creative community couldn't happen to YouTube as well.

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posted at: 12:00am on 11-Dec-2021
path: /Policy | permalink | edit (requires password)

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Texas Says Its Unconstitutional Content Moderation Law Should Still Go Into Effect While We Wait For Appeal; Judge: 'No, That's Not How This Works'

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Last week, the district court Judge Robert Pitman wrote an excellent ruling tossing out Texas' silly content moderation law as clearly unconstitutional under the 1st Amendment. As was widely expected, Texas has appealed the ruling to the 5th Circuit (undeniably, the wackiest of the Circuits, so who knows what may happen). However, in the meantime, Texas Attorney General Ken Paxton also asked the lower court to have the law go into effect while waiting for the appeals court to rule!

A stay is also supported by the widely recognized principle that enjoining a state law inflictsirreparable harm on the state, and that the public's interest is aligned with the state's interest andharm. Plaintiffs, in contrast, will not be irreparably harmed if a stay is granted. This is evidenced by the fact that (1) their supportive members stated they either already comply with aspects of thelaw or could not explain how the law would be burdensome in practice; and (2) Plaintiffs' othermembers, filing as amici in opposition to the Preliminary Injunction, have demonstrated no harmwill occur by enforcement of H.B. 20. For all these reasons, as further set forth below, a temporarystay while the Fifth Circuit considers the merits of this Court's Preliminary Injunction iswarranted.
It is really incredible:
The Attorney General has also raised questions neverconsidered by the Fifth Circuit or the Supreme Court as to common carriage and the FirstAmendment. Correspondingly, the Attorney General has demonstrated a likelihood of success onthe merits regarding Plaintiffs' claims. While this Court may have rejected the Attorney General's arguments, it did so by relying on readily distinguishable First Amendment case law and givingdispositive weight to a novel fact: whether the entity screen[s] and sometimes moderate[s] orcurate[s] user generated content.Therefore, given the novel nature of Plaintiffs' claims and the substantial support for theAttorney General's arguments, the Court of Appeals should have an opportunity to consider theseissues before the injunction is implemented.
Basically, "even though we lost easily, we really made the better arguments, so therefore you should let the law go into effect." It's nonsense.Remember, the key reason that the judge blocked the law from going into effect was because it so obviously violates the 1st Amendment, so letting the law go into effect fundamentally would violate 1st Amendment rights. Texas' argument here that blocking the law from going into effect "inflicts irreparable harm on the state" is positively bizarre. "If we can't violate the 1st Amendment rights of websites, then we're irreparably harmed" is a dumb argument. The plaintiffs in the case, NetChoice and CCIA fired back with the proper "LOL, wut?" opposition brief, though most of that focused on Paxton wanting the other parts of the case to continue to move forward in the district court while the appeal is happening (and basically to get into the intrusive discovery process).The judge wasted little time in rejecting Paxton's nonsense:
The State largely rehashes the same arguments this Court rejected in its Order. The State'snew argumentthat the preliminary injunction is overbroadalso asserts, again, that HB 20 is notunconstitutional. (Id. at 13). However, the Court already found that Plaintiffs are likely to establishthat Sections 2 and 7 of HB 20 are unconstitutional and, as a result, fashioned a narrow, preliminaryinjunction. The Court is also not persuaded by the State's contention that preliminarily enjoining theenforcement of Section 2which contains disclosure requirementswas too broad a remedybecause one of Plaintiffs' members happens to already satisfy several disclosure requirements. (Id.at 13). Whether one of Plaintiffs' members makes a business decision to publish certain disclosures,even if a few of those disclosures align with Section 2's requirements, does not impact this Court'sdecision that the State cannot constitutionally enforce Section 2's many requirements imposed onsocial media platforms. Accordingly, the Court declines to stay its Order.
It also sides with NetChoice in staying the other parts of the case until after the appeal.
To preserve court resources and for judicial efficiency, whatever the posture of this casewhen it returns to this Court, the Court will exercise its discretion to stay this case and preserve itscurrent posture
In other words, no, Paxton, you're not likely to succeed, and if you do, we can take up the issue then...

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posted at: 12:00am on 11-Dec-2021
path: /Policy | permalink | edit (requires password)

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