So gamer “HitmanNiko” modified Grand Theft Auto to add in a new weapon: A Samsung Galaxy Note 7, which can be thrown like a grenade. (It replaces a weapon called “the sticky bomb.”) Some folks uploaded videos of themselves using the new weapon, because hell, it’s funny.
And then Samsung used DMCA notices against these videos, in at least one case successfully.
Something like these videos – which combine parody with commentary on a major current news story – are obviously fair use. But a censorship-loving company like Samsung has no reason not to abuse copyright laws in this way. As EFF notes, there’s a possibility of that changing:
If it doesn’t have a viable copyright claim, why did Samsung send DMCA takedown notices? We asked Samsung’s counsel (the notices were sent on Samsung’s behalf by the 900-lawyer firm Paul Hastings LLP) but received no response. It appears that Samsung took the easy path to removing content it did not like by making a copyright claim where none existed. DMCA takedown notices are, by far, the quickest and easiest way to get speech removed from the Internet. That makes them irresistible for companies, individuals, and even governments eager to censor online speech.
DMCA abuse flourishes because, in practice, companies that send improper notices don’t face sufficiently serious consequences. This issue is currently before the Supreme Court in Lenz v. Universal. In that case, EFF represents Stephanie Lenz who posted a short video to YouTube showing her toddler son dancing to a Prince song. After Universal sent a takedown notice, Lenz sued arguing that the video was clearly fair use and the notice was sent in bad faith. Last year, the Ninth Circuit ruled that copyright holders must consider fair use before sending a takedown notice. Unfortunately, the appeals court also set a very high bar for enforcing that standard. It held that senders of false infringement notices could be excused so long as they subjectively believed that the material was infringing, no matter how unreasonable that belief. Lenz has asked the Supreme Court to review that aspect of the ruling.
In the next week or two, the Supreme Court will decide whether or not it will hear Lenz’s appeal.