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  1. A class-action lawsuit, filed against YouTube by Grammy award-winning musician Maria Schneider and Pirate Monitor Ltd, has taken an unexpected turn. According to YouTube, Pirate Monitor first used bogus accounts to upload its own videos. It then filed DMCA notices to have the same content removed in a ploy to gain fraudulent access to Content ID management tools. Early July, Grammy award-winning musician Maria Schneider teamed up with Virgin Islands-based Pirate Monitor Ltd in a class action lawsuit targeting YouTube. Filed in a California court, the complaint centered on YouTube’s alleged copyright failures, including the company’s refusal to allow “ordinary creators” to have access to its copyright management tools known as Content ID. “Denied Any Meaningful Opportunity” to Prevent Infringement Painting YouTube as a platform designed from the ground up to attract and monetize piracy, the action contained a barrage of additional accusations, including that the mere existence of Content ID, through which creators can be compensated for otherwise infringing uploads, means that most infringement is shielded from YouTube’s repeat infringer policy. Schneider informed the court that a number of her songs had been posted to YouTube without her permission, noting that she had twice been refused access to Content ID and the “automatic and preemptive blocking” mechanisms that are available to larger rightsholders. For its part, Pirate Monitor Ltd claimed that its content, including the movie Immigrants – Jóska menni Amerika, was illegally uploaded to YouTube hundreds of times. The company said that while YouTube responded to takedown notices, they often took too long to process. Access to YouTube’s Content ID system was denied, Pirate Monitor added. YouTube Responds to Complaint, Files Counterclaims Much like the beginning of the complaint itself, YouTube and owner Google’s response begins in familiar fashion. The company denies that it encourages infringement, instead noting that it goes “far above and beyond” its legal obligations when assisting copyright holders to protect their rights, including by investing more than $100m in Content ID. Of course, this complaint largely revolves around YouTube denying the plaintiffs’ access to Content ID but to that allegation, the company has a set of simple and apparently devastating response points. Firstly, Pirate Monitor Ltd cannot be trusted since it has already engaged in fraudulent behavior in respect of Content ID. As for Schneider, not only is she suing YouTube over copyrighted music that she and her agents have already granted YouTube a license to use, her own agent has also used Content ID to generate revenue from those works on her behalf. Pirate Monitor Uploaded its Own Content Using Bogus Accounts While the claim that Schneider licensed her content to YouTube and made money through Content ID is surprising, that pales into insignificance when compared to the allegations against Pirate Monitor Ltd. During the fall of 2019, YouTube says that Pirate Monitor through its authorized agents created a series of accounts on YouTube using bogus account registration information to hide the relationship between the account creators and Pirate Monitor. These accounts were subsequently used to upload “hundreds of videos” to YouTube. These included clips from exactly the same works that Pirate Monitor accuses YouTube of infringing in its complaint – the films Csak szex és más semi and Zimmer Feri. “Each time these videos were uploaded, Pirate Monitor was representing and warranting that the video did not infringe anyone’s copyrights, and it expressly granted YouTube a license to display, reproduce, and otherwise use the videos in connection with the service. Pirate Monitor also represented that it owned or had the rights to upload and license the material contained in the videos,” YouTube’s answer reads. Shortly after, YouTube notes, Pirate Monitor followed up by sending “hundreds” of DMCA takedown notices targeting many of the videos it had uploaded through the disguised accounts. “In those notices, Pirate Monitor represented that the videos that were the subject of the notices — videos that it had uploaded — infringed its copyrights or the copyrights of a party whom Pirate Monitor was authorized to represent. YouTube processed the substantial volume of DMCA takedown requests and removed the videos,” YouTube adds. YouTube Backs Pirate Monitor Into a Corner As noted in YouTube’s answer, Pirate Monitor’s representations over the status of these videos cannot be correct in both instances. At the point of upload the company told YouTube that it had the right to upload the videos since they infringed nobody’s rights. If those declarations were untrue, the company breached the ToS agreement and “perpetrated a fraud on YouTube” by uploading infringing content. On the other hand, if it did have permission to upload the content, then Pirate Monitor knowingly made false statements to YouTube when it submitted DMCA takedown notices clearly stating that the uploads were infringing. The big question, then, is why Pirate Monitor engaged in this alleged conduct at all. YouTube: Pirate Monitor Wanted Access to Content ID According to YouTube, Pirate Monitor had previously applied for access to the Content ID program. However, the company was denied on the basis that it was required to demonstrate a valid need and have a “track record” of properly using the DMCA takedown process. YouTube believes that since Pirate Monitor was lacking these qualities, it cooked up a scheme to convince the video platform that it fulfilled the criteria. “Pirate Monitor believed that it could demonstrate both the need for access, and a track record of valid DMCA takedown requests, by surreptitiously uploading a substantial volume of content through accounts seemingly unconnected to it, and then sending DMCA takedown requests for that same content,” YouTube says. “Instead of showing that it could properly use YouTube’s tools, Pirate Monitor’s deceptive and unlawful tactics established that it could not be trusted, and that YouTube was right in rejecting its request for access.” YouTube’s Counterclaims As a result of Pirate Monitor’s actions, YouTube says that there has been a breach of contract. The company and its agents failed to provide accurate information during the account creation process and seems to have uploaded videos to YouTube that infringed third-party copyrights. All of this cost YouTube time and money, including investigating and processing Pirate Monitor’s claims that the content was infringing. Furthermore, YouTube notes that in its agreement with Pirate Monitor, the company is obliged to “indemnify YouTube for claims rising out of or relating to its use of the YouTube service. “In seeking defense costs and any potential liability in this action as damages for Pirate Monitor’s contract breaches, YouTube expressly preserves its separate entitlement to contractual indemnity and will amend its counterclaims to add a claim for that indemnity if Pirate Monitor refuses to honor its indemnity obligation,” the video platform writes. YouTube further alleges fraud in respect of more than a dozen accounts Pirate Monitor created for the purposes of uploading around 2,000 videos. Taking the statements in the subsequent DMCA takedown notices sent by the company as accurate, YouTube says that Pirate Monitor agreed not to upload infringing content but did anyway, each time declaring that it had the necessary rights to the content being uploaded. As an alternative, YouTube offers similar counterclaims in the event that Pirate Monitor actually had permission to upload the videos but abused the DMCA by issuing fraudulent takedown notices instead. Request for Injunction and Damages In addition to requesting damages to compensate for the harm caused by Pirate Monitor’s actions, YouTube demands a punitive damages award to compensate for its “fraudulent conduct”. The video platform also seeks an injunction barring Pirate Monitor and its agents from submitting any further DMCA notices that wrongfully claim that material on the YouTube service infringes copyrights held (or are claimed to be held) by Pirate Monitor or anyone it claims to represent. YouTube and Google’s Answer and Counterclaims can be found here (pdf) Source: TorrentFreak
  2. During the summer, Grammy award-winning musician Maria Schneider and Pirate Monitor sued YouTube in an attempt to gain access to its Content ID tools. YouTube then fought back, claiming that Pirate Monitor had already proved itself untrustworthy. However, in a motion to dismiss, Pirate Monitor now says that YouTube has provided zero evidence to back up its claims. During the summer, Grammy award-winning musician Maria Schneider and Virgin Islands-based Pirate Monitor Ltd teamed up to file a class-action lawsuit targeting YouTube. The complaint centered on allegations that YouTube’s copyright infringement mechanisms are deficient, claiming that the company refuses to grant “ordinary creators” access to its sophisticated copyright management tools known as Content ID. During September, YouTube fought back stating that it already goes above and beyond its obligations under the law when dealing with infringing content. The sting in the tail came in the form of additional claims, from YouTube and its owner Google, that Pirate Monitor could not be trusted to use Content ID. According to YouTube, Pirate Monitor deployed “authorized agents” to create bogus YouTube accounts that uploaded hundreds of videos which it later took down using copyright complaints. The alleged goal was to create the impression of mass infringement in support of the class action. Pirate Monitor Fights Back In a motion to dismiss YouTube and Google’s counterclaims, filed on Friday, Pirate Monitor states that YouTube provided no evidence to back up the general claims that the uploaders of the videos in question had anything to do with Pirate Monitor. “The counterclaims contain no factual allegations indicating whether the unidentified individuals were, for example, employees, officers, agents, or independent contractors of Pirate Monitor, or the scope of their authority to purportedly act on Pirate Monitor’s behalf,” the motion reads. “As a result, the Court should disregard Defendants’ conclusory allegation that the unidentified individuals were ‘authorized agents’ of Pirate Monitor as well as their improper references to the unidentified individuals as ‘Pirate Monitor’.” Based on the allegation that the uploaders were “authorized agents” of Pirate Monitor, YouTube previously said that declarations made to the company at the point of upload (that the content was not infringing) amounted to fraud since they breached YouTube’s Terms of Service. Pirate Monitor believes that such serious claims need to be backed up by hard evidence. “A claim of fraud must satisfy the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure, and will be dismissed unless it ‘specif[ies] such facts as the times, dates, places, benefits received, and other details of the alleged fraudulent activity’,” the company writes, adding that information relating to “who, what, when, where and how” must be provided to the court. “Because Defendants fail to offer any well-pleaded facts plausibly showing that the unidentified individuals are agents of Pirate Monitor; and were acting in the course of and within the scope of that agency relationship when they engaged in the conduct alleged in Defendants’ three counterclaims, those counterclaims fail as a matter of law and should be dismissed,” Pirate Monitor adds. Counterclaims For Fraud & DMCA Abuse Should be Dismissed Pirate Monitor takes a similar position on YouTube’s claims that the DMCA notices that took down allegedly-infringing content were also submitted fraudulently. At no point does Pirate Monitor deny that YouTube’s claims are untrue but simply states that platform has failed to meet the standards required for such claims to be considered. Noting that “justifiable reliance” is a necessary part of any fraud claim under California law, Pirate Monitor insists that supporting facts must be sufficiently specific. The absence of such information in its pleadings is “fatal” to YouTube’s counterclaim, Pirate Monitor adds, noting that the video platform has not “alleged any facts showing they were justified in relying on the representations of individuals they cannot identify to this day, let alone the particularized facts necessary to avoid dismissal..” YouTube’s Demands For an Injunction Should Be Dismissed In its counterclaim, YouTube demanded damages to compensate for Pirate Monitor’s actions and also requested a punitive damages award to compensate for the company’s “fraudulent conduct”. The video platform further sought an injunction to prevent Pirate Monitor and its agents from submitting any additional DMCA notices with YouTube that wrongfully claim that content on the YouTube service infringes copyrights held by Pirate Monitor or anyone it claims to represent. According to Pirate Monitor, these requests should all be dismissed as YouTube lacks Article III standing. Again, this centers around YouTube’s failure to provide evidence, with Pirate Monitor pointing out that the request for injunctive relief is based on past wrongs, including the allegedly-fraudulent DMCA takedown notices for which YouTube has failed to support with “even a single fact showing a real and immediate threat that Pirate Monitor will commit those alleged wrongs in the future.” Given that it seems unlikely that YouTube simply pulled the serious allegations in its counterclaims out of thin air, at some point the supporting evidence against Pirate Monitor and/or its “agents” will probably be revealed at some point and could even prove pivotal to the case. Schneider/Pirate Monitor’s Motion to Dismiss Counterclaims can be found here (pdf) Source: TorrentFreak
  3. An IT researcher who hacked the recently released Nintendo Game & Watch allowing it to play additional games is feeling the corporate presence of the Japanese gaming giant on YouTube. After publishing a hacking video on the platform, someone working for Nintendo issued a curious and relatively rare manual Content ID copyright claim to have it taken down. Using any amount of copyrighted content in a YouTube video can result in a claim by a copyright holder, even when fair use exceptions should be applicable. This type of action is often taken through YouTube’s Content ID system after being detected by an algorithm. However, there is another option available to rightsholders that requires action from real-life people which, perhaps counter-intuitively, can mean claims are sometimes more controversial. Nintendo Game & Watch Hacker ‘stacksmashing’ As previously reported by Gizmodo, last November and a day before its official release, Nintendo’s Game & Watch console was hacked by IT researcher ‘stacksmashing‘ in order to play new games. Of course, this type of activity is always frowned upon by Nintendo. The Game & Watch released with Super Mario Bros. and the gaming giant would’ve preferred it to stay that way. But with Doom, Pokémon, The Legend of Zelda, Super Mario Bros. 3 and even Contra playable on the new machine, there’s now more variety, whether Nintendo likes it or not. Surprise: Nintendo Doesn’t Like It Nintendo can put pressure on hackers in all kinds of ways but an action taken against at least one of stacksmashing’s videos on YouTube reveals the company isn’t averse to playing some games of its own. As revealed by the hacker on Twitter, Nintendo has filed an interesting copyright complaint against one of his videos. As the above shows, Nintendo says that the video infringes its copyrights relating to Game & Watch: Super Mario Bros. However, the important information relates to what supposedly infringing content stacksmashing used in his video and in what context. According to the hacker, not much at all and not for very long either. The Claim From Nintendo “It’s a claim with time stamps – the beginning of the time stamp is a terminal window.. and then just the device being on and Mario running for a couple of seconds,” he explains. From the explanation and assuming that the terminal window didn’t infringe any of Nintendo’s rights, that leaves the few seconds of gameplay footage as a potential Nintendo irritant. While that could conceivably get caught up in an automatic Content ID claim, that wasn’t the case here. Fairly unusually, an actual human being made a manual claim against stacksmashing’s video, within Content ID. “This was actually a manual match, so someone at the big N put in the time to do this,” he notes on Twitter. So how exactly do manual Content ID claims work? The Parameters As Per YouTube “A manual claim is sent to you when a copyright owner identifies that their content has been used without their permission. Copyright owners use the manual claiming tool to claim your video, which sends you a manual claim,” YouTube explains. In a nutshell, Content ID’s algorithms didn’t flag the video as infringing but someone acting on Nintendo’s behalf watched the video and determined that it did. They then took time out to tell YouTube that Nintendo’s copyrights had been infringed so it should be taken down. “The manual claiming tool is used by copyright owners who demonstrate advanced knowledge of our Content ID system. The tool gives copyright owners a way to manually claim videos not matched by the Content ID system. Manual claims must include accurate timestamps to show exactly where the claimed content is in your video,” YouTube adds. While stacksmashing hasn’t revealed the exact timestamps, the progress bar on the screenshot shows that Nintendo claimed a very small part of the video. Furthermore, the requirement for an accurate set of stamps doesn’t appear to have been strictly adhered to, if indeed the only problem was a few seconds of Super Mario Bros. gameplay footage. Taking that to its logical conclusion, another question raises its head: Why are there so many other videos on YouTube showing Game & Watch gameplay that haven’t received a copyright complaint? Stacksmashing is Reportedly Editing, Filing Disputes With Gizmodo reporting that stacksmashing has had two of his videos targeted in this way, the hacker is reportedly editing them in an effort to get them back on YouTube without further issues. On top, he’s also filing disputes against Nintendo’s claims of copyright infringement. While having any kind of copyright claim against a video is an irritant, in this case a manual Content ID claim does not immediately mean copyright ‘strikes’ for stacksmashing. However, there is an option for a copyright holder to send an actual takedown notice (rather than a Content ID claim) and if this is deemed accurate, a damaging ‘strike’ can be applied to an account. Since the hacker is reportedly prepared to trim out the contentious few seconds of video, his YouTube account will remain in good standing. On the other hand, if Nintendo is found to be “improperly claiming content that they don’t own the rights to” this could result in “penalties including legal liability and partnership termination,” as per YouTube. This, of course, is highly unlikely. Source: TorrentFreak
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