Copyright As Censorship Again: Game Developer Takes Down Scathing YouTube Review

from the and-all-hell-breaks-loose dept

Mon, Oct 21st 2013 5:30am — Mike Masnick

All weekend long folks have been submitting variations on this story of how a company called Wild Games Studio had issued a copyright takedown on an apparently scathing review of one of its games, called Day One: Garry's Incident, done on YouTube by popular gaming reviewer TotalBiscuit (whose name is apparently John Bain in real life). A bunch of articles have been written about this, but the best, by far, is the video explanation Total Biscuit put up himself about the situation. It's about 14 minutes long (7 minutes if you use HTML 5 and speed things up), but well worth it: This video is great on so many levels. First, it explains the basics of the situation and why it's a pure abuse of copyright law. Second, it shows how the head of Wild Games Studio, named "Stephane," both gave him permission (giving him a code for the game, as well as stating publicly that people are free to "make YouTubes" of the game) and then lied about it all, by claiming the takedown was "because Total Biscuit has no right to make advertising revenues with our license."

That's legally wrong on so many levels. First of all, not only did Stephane pretty clearly give permission for all this to happen, fair use is pretty clear here as well. The use was for reporting and criticism. Furthermore, TotalBiscuit highlights a bunch of other monetized videos involving the same game that Wild Games Studio did not take down.

But, from there, TotalBiscuit's video gets even more impressive. He doesn't just Streisand Effect Wild Games Studio, calling more attention to the content that the company tried to censor, but he digs into a bunch of other shady practices by the company, including (badly) astroturfing reviews, and accusations that they tried to pump up their Kickstarter campaign (for the same game) by (1) having the CEO of the company pledge $10,000 upfront, and (2) having others pledge high amounts and withdraw them later (suggesting that it was just to make it look like there was momentum for the campaign).

TotalBiscuit doesn't stop there. Next up he calls out YouTube for having a system like this, where censorship can occur so easily based on wholly bogus copyright claims. He points out that YouTube needs to do more to not allow these kinds of things to happen. Of course, YouTube is in a tough spot, seeing as they're also getting slammed by the legacy entertainment industry for not making it even easier to block content on the site.

Finally, he promises that any ad revenue earned from both the video above and the original one that was taken down, will be donated to the EFF, because the EFF remains awesome and continues to fight against such abuse.

After all of this, Wild Games Studio's "Stephane" says that "after seeing all the negative impact today we decided to withdraw our complaint to YouTube." That's an incredibly weak response. It's the equivalent of "if you were offended, I apologize." It's not taking responsibility for the blatant censorship or other abusive behaviors.

And yet there are still some people out there who insist that copyright is never used to censor.

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Filed Under: censorship, copyright, fair use, review, streisand effect, totalbiscuit, youtube
Companies: wild games studio

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Rikuo (profile), 21 Oct 2013 @ 2:47am

People, grab your buckets of popcorn, even if, like me, you hate the stuff. The trolls will be all over the article.

Trolls, I suggest you don't even try on this one. There is not a single way you can take this article and spin it as a defense of copyright law or of the DMCA. A reviewer was given review code of a game deliberately by the game's developer, the game's developer said yes you can make videos on it, but then later went to take down just the one video.

I know you'll ignore this, I know you'll still feel compelled to slam Mike and us Techdirtians for some reason. I know you'll call us pirates and thieves, as you have done so many times in the past. I know you'll ignore the fact us pirates and thieves also spend a shit-ton of money on entertainment. So why bother? I've already predicted what you're going to say, so now there's no need for you to actually say it.
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Ninja (profile), 21 Oct 2013 @ 4:38am

What all these "anomalies" have in common? No punishment for the abuses. Expect it to greatly decrease if any penalties for abuses are introduced. In fact expect a great decrease in DMCA notices.
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That One Guy (profile), 21 Oct 2013 @ 4:43am

Of course, YouTube is in a tough spot, seeing as they're also getting slammed by the legacy entertainment industry for not making it even easier to block content on the site.

Here's an idea: Give them their 'easy fix', but at the same time equalize the penalties.

Currently it's a 'three strikes and you're out' for those accused of copyright violation, with no penalty at all(that I'm aware of) for filing clearly bogus claims. If the people putting up the vids have the threat of account termination hanging over their heads, I'd say it would be only fair to have the same punishment for obviously ridiculous copyright violation claims.

Perhaps something like the following:

0. Youtube puts together a list of 'allowed infringement' categories, to cover fair use, including parody, commentary, reviews, stuff like that. To be able to file takedown/copyright violation claims, a person/company must read the entire thing, and sign/agree that they have done so.

1. A company('Company A' for this example) files a claim against a video, claiming it's violating their copyright.

2. User who submitted the video has two options:
A) Remove the video in question, closing the matter, with no strikes on either side.
B) Contest the claim, sending it back to Company A, with an explanation as to why they believe it's not infringing and/or covered by fair use.

3. Company A now has two options:
A) Accept the user's claim, in which case the matter is dropped, with no strikes on either side.
B) File a declaration that states that they both still maintain that the video in question is infringing, and that their declaration is taking into consideration the 'fair use' rules of the site/law.

4. If option 3b is chosen, the matter goes into moderation(the only truly tricky part of the process, as deciding who pays for the people to review the matter would be tricky). If the moderator decides that the video is indeed in violation, it's taken down and the user gets a strike to their account. On the other hand, if the moderator feels that the video is not in violation, according to the fair use rules that were agreed upon, Company A instead receives the strike, and the video stays up.

5. Should either User, or Company A receive enough 'strikes' in a certain period of time, the penalty kicks in. For the user, their account is locked(removed for repeat offenders), for the company, their ability to post content of their own is also locked, and they are unable to file claims of infringement(so no more 'easy way', either go to court with the matter, or drop it), with again, both privileges removed entirely for repeat offenses.
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That One Guy (profile), 21 Oct 2013 @ 4:53am

Re:
I'd say the bigger problem isn't that there is no punishment(supposedly a bogus DMCA claim is considered perjury, and to be treated as such), it's that there is no enforcement of the current punishments.

If companies/individuals started getting slammed with perjury charges for obviously bogus DMCA claims, then I agree, the number of DMCA claims filed would drop like a rock overnight.
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That Anonymous Coward (profile), 21 Oct 2013 @ 5:45am

He who has the gold makes the laws, and enough gold means you aren't subject to them.

The weasel words that they merely need to THINK it might be infringing needs to be removed, and then the lawsuits against them can flow and the entire DMCA process will get better or thrown out.
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Anonymous Coward, 21 Oct 2013 @ 5:48am

Wild Games Studio is just following the example of their betters. Politicians stamp all over everything that criticises, going as far as to call critics traitors.
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That Anonymous Coward (profile), 21 Oct 2013 @ 6:06am

Huh is it just me or can anyone else not find a copyright issued to Wild Games Studio?
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Anonymous Coward, 21 Oct 2013 @ 6:09am

Re:
"People, grab your buckets of popcorn, even if, like me, you hate the stuff. The trolls will be all over the article."

Once upon a time, Techdirt was relevant enough to attract enough people to have a lively debate on copyright.

Now you're lucky if you get an ootb or the milky man.

And besides, the company already said that they'll drop the copyright complaint, so there is really nothing more to discuss here. Nothing that hasn't been beaten to death anyway...
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dennis deems (profile), 21 Oct 2013 @ 6:26am

"He doesn't just Streisand Effect Wild Games Studio..."
Mike, I really must object to the use of "Streisand Effect" as a verb.
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PaulT (profile), 21 Oct 2013 @ 6:35am

Re: Re:
"Once upon a time, Techdirt was relevant enough to attract enough people to have a lively debate on copyright."

Oh, those debates still happen occasionally. The problem is that most of the issues are clear cut and the real points debated at length. Here, the system is being abused at the expense of free speech on the pretense that one company's attempt to make a profit trumps all other speech - there's no other way to read this.

Unless there's some honest counterpoints I've not read on these kinds of issues, the only opposing arguments require wilful ignorance and strawmen.

"the company already said that they'll drop the copyright complaint"

Frankly irrelevant to the point of the article. They used copyright tools to censor. That they backtracked once their abuse of the system was publicised doesn't change the fact that they did this, and that the system they used is still available for others to abuse.

"there is really nothing more to discuss here"

Like that's ever stopped any of them before. The article mentions a Google company, the EFF and was written by Mike Masnick. That alone is enough to set some of them off on a barely sane rant.
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Anonymous Coward, 21 Oct 2013 @ 6:53am

Re:
"3. Company A now has two options:
A) Accept the user's claim, in which case the matter is dropped, with no strikes on either side."

This will still be open to abuse as a company claiming the copyright violation could send notices to everything it wants censored (even if no copyright infringement has been made) and should a counter claim be made then drop the claim and say sorry.

Some kind of penalty should be made to the company when they drop a certain amount of claims thus to avoid deliberately on purpose sending notices to everything it doesn't like that is not copyright infringement.
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Nomis, 21 Oct 2013 @ 6:54am

TotalTroll may not deserve the censorship but he does deserve being knocked down a peg or two.
Explainging why you don't like a game and cannot recommend it is one thing but he takes it to the nth degree as part of his 'persona'. If the KKK were making mainstream videos they'd be copying TotalBiscuit's MO.

Let's not forget he has a monetary investment in a current trending topic, and what does he like with his biscuits?
Milk, of course.
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Anonymous Coward, 21 Oct 2013 @ 6:54am

Re: Re:
"Now you're lucky if you get an ootb or the milky man."

Wouldn't it be lucky not to get an ootb posting?
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Anonymous Coward, 21 Oct 2013 @ 7:01am

Re: Re: Re:
NOOOO, anything but the Milk Man!
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Anonymous Coward, 21 Oct 2013 @ 7:06am

Re:
Consider doing it as a percentage, rather than an absolute amount, and set the bar high - maybe 99% valid disputes. If a company submits, say, 100 complaints, and one gets disputed and resolved in the user's favor, that may be OK. If they submit 100 and 95 are resolved in the user's favor, that's something else. So if they consistently use complaints to take down copyrighted material legitimately, they can afford to have a few slip-ups without penalty, just like users get a couple of strikes without penalty. But if they repeatedly submit bad complaints, then it should come back to haunt them.
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Anonymous Coward, 21 Oct 2013 @ 7:16am

Re:
Speaking of trolls...
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That Anonymous Coward (profile), 21 Oct 2013 @ 7:17am

Re:
And there we have Wild Games Studio's take on the matter.

Attack the person speaking trying to drum up as much dislike as they can for him, ignoring the absolute crap game that was put out and panned.

Any comment on the studio fluffing their own Kickstarter for this horrendous pile of crap?
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Anonymous Coward, 21 Oct 2013 @ 7:18am

NOOOO, anything but the Milk Man!

Don't worry. I don't post much anymore. Mike has locked me out of my account, so I can't log in, and he's going to great, great efforts to keep me from posting. None of that does anything to stop me, obviously, but I have decided that Mike's a lost cause. He has no interest in backing up anything he says, and he can't stand criticism. He's just not an honest person, and he cares not about truth. It's a shame. He's just too far gone. You guys gobble it up, though! Good for him. His ego really needs that.
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Drew, 21 Oct 2013 @ 7:22am

Re:
Nope, but we can still troll the makers of the game.

Watch and learn.

Now, off to download a copy of that shitty game so I can delete it and do it again!
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Nomis, 21 Oct 2013 @ 7:36am

Re: Re:
So, why do other reviewers (that didn't score the game well at all) still have their videos up?
TB is a potty mouthed diva who likes to play his viewers.
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Anonymous Coward, 21 Oct 2013 @ 7:40am

Re:
That is honest. Thank you! Now stay away and let the rest of us use his posts to find actual sources. Finding a journalist using that kind of heresy is hard these days!
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jupiterkansas (profile), 21 Oct 2013 @ 7:45am

Re:
The window's still wide open here to bash Google for Youtube's lousy automated system.
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Anonymous Coward, 21 Oct 2013 @ 7:47am

That is honest. Thank you! Now stay away and let the rest of us use his posts to find actual sources. Finding a journalist using that kind of heresy is hard these days!

Haha!You're right. The fact is, I myself download and read many of the documents Mike posts. I didn't say the site had no value. The articles are always biased and often baseless, the second-stringers don't write anything worth reading, and it sucks that Mike's so secretive and sensitive about his own beliefs, but there's still value here.
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Richard (profile), 21 Oct 2013 @ 8:08am

Monday Blues
If nothing else seem comment-worthy, I think it's notable (while chuckling) that it's only Monday morning, and the Streisanding has snowballed. There are already negative (for WSG) articles and/or threads on (at least):

torrentfreak.com, cinemablend.com, escapistmagazine.com, steamcommunity.com, kotaku.com, indiestatik.com, linustechtips.com, everyjoe.com, metacritic.com, twodashstash.com, leagueofmediocregamers.wordpress.com, sportsgamer.com, gamerspective.net, gameranx.com, diabloglical.com, incgamers.com, lorrie28-mothergamer.blogspot.com, gamingfurever.com, screwattack.com, forum.yugiohcardmaker.net, r2.reddit.com, mt-gaming.com, us.battle.net/wow/en/forum/topic/10261777159, and (Swedish...already?!?) sweclockers.com.

I may not be able to define justice, but I know it when I see it.
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Chronno S. Trigger (profile), 21 Oct 2013 @ 8:35am

Re: Re: Re:
"So, why do other reviewers (that didn't score the game well at all) still have their videos up?"

They aren't the number one search result when searching for the game. And the guy who is now doesn't have any game play at all so there is no way they could get away with a claim.

"TB is a potty mouthed diva who likes to play his viewers."

I've just started watching TotalBiscuit, can you point me to one of his videos where he's a potty mouth and plays to his viewers? I've only watched about half a dozen and so far he seems vary level and fair. And I don't think I've heard him swear once.
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Jay (profile), 21 Oct 2013 @ 8:52am

Re: Re: Re: Re:
TB has drama from his time on Reddit. He can be quite controversial and opinionated and has done things like get his fans to massively downvote people that disagree with him. That's changed since he stayed off Reddit (he has a Starcraft team that he is taking care of which he doesn't want to catch his flack) so it essentially worked out for him to stay away from some drama.
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Anonymous Coward, 21 Oct 2013 @ 8:54am

Re:
Yeah, posting an opinionated game review video on youtube is EXACTLY LIKE the KKK.
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Anonymous Coward, 21 Oct 2013 @ 8:55am

Re: Re: Re:
That makes it even less justified...
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Anonymous Coward, 21 Oct 2013 @ 9:11am

Re: Re: Re:
I'm sorry if I came across as a bit trollish myself, but what I was trying to say is that this story is pretty much done and done. It is just another drop on the "copyright as censorship" bucket, and the "company quickly retracts dumb decision once people (rightfully) make a lot of noise" bucket, both of which are already overflowing.

It is unlikely that this story will spark any further debate beyond what has already been said: In a week, the impact of the censorship will be lost, and "nobody" will remember this. This article does little to change that: it just reiterates what the linked articles have already said, with a bit of opinion (unsupported by facts, other than the implied "trust me, I know this stuff") tacked on.

Mike fancies himself a journalist (some times). Maybe he could write an in-depth article about "copyright as censorship", with some facts and figures, (Or do a monthly "Look who's been censored" list?) to drive the point home, instead of just nearly copy-pasting what others have already said.
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John Fenderson (profile), 21 Oct 2013 @ 9:17am

Re: Re: Re: Re:
t is unlikely that this story will spark any further debate beyond what has already been said

Not everything has to spark debate to be useful, interesting, or relevant. There is a value in just being informed about stuff that's happening. If there weren't, then there would be no use for things like crime reporting.
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John Fenderson (profile), 21 Oct 2013 @ 9:22am

Re:
TotalTroll may not deserve the censorship but he does deserve being knocked down a peg or two.

Maybe, maybe not. I don't know. But if the developer is thinking of this as a kind of street fight and he needs to knock the reviewer down a peg or two, fine. He can do that using the same right of free speech that the reviewer used.

There is no excuse for abusing the law just because the reviewer is an asshat or they're pissed at him.
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saulgoode (profile), 21 Oct 2013 @ 9:43am

Re: "He doesn't just Streisand Effect Wild Games Studio..."
All nouns can be verbed.
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Anonymous Coward, 21 Oct 2013 @ 9:50am

Re:
average_joe greatly dislikes the enforcement of due process.
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S. T. Stone, 21 Oct 2013 @ 10:14am

Re: Re: "He doesn't just Streisand Effect Wild Games Studio..."
We�ll call it �nouning�.
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Anonymous Coward, 21 Oct 2013 @ 10:52am

Re:
If THINKING that something might be infringing is enough to get it take down, then THINKING that it might not be should also be a defense against infringement. It should go both ways.
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Jonathan, 21 Oct 2013 @ 11:31am

Re: Re:
Citizens in the US have almost no standing to prosecute any public harm, and very little to seek restitution for collateral damage to their interests.

Contrary to the marketing campaigns, the USA's main focus has and always will be to preserve and expand the privileges of the aristocracy.
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That Anonymous Coward (profile), 21 Oct 2013 @ 11:42am

Re: Re:
but little people can't have any rights involving copyright.
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Jasmine Charter, 21 Oct 2013 @ 11:48am

Better solution
Here's a good solution.

For each takedown notice, the person must swear that they've there is no legal basic, including fair use, for the video to be up. They then put up a bond of $500.

If no one disputes the claim, then the $500 is returned. If someone does, it goes to mitigation and if the filing was deemed inappropriate, then $500 is awarded to the person whose video was take down.

In addition, the person whose video was taken down may go after the illegal filer for appropriate damages - ie. advertising, etc.

THEN let's see how many robot DMCAs get filed!
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jupiterkansas (profile), 21 Oct 2013 @ 12:08pm

Re: Re: Re: "He doesn't just Streisand Effect Wild Games Studio..."
"verbing" would be more accurate.
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Anonymous Coward, 21 Oct 2013 @ 12:35pm

Re: Re:
And besides, the company already said that they'll drop the copyright complaint, so there is really nothing more to discuss here. Nothing that hasn't been beaten to death anyway...

I respectfully disagree. I think there is no reason to stop the conversation just because the bad actor has decided to reverse their decision. So they backed off. So what? Did that magically remove the ability of others to do what this company did in the first place?

Make no mistake, I'm not suggesting we bash this company any more than they've already been flattened, but the core issue remains. It has to be kept in the open if there is ever to be any headway in having this sort of thing stop.
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Anonymous Coward, 21 Oct 2013 @ 1:22pm

Re:
Of course not, the corporations who purchased the DMCA made sure they'd never be held responsible for abusing it. Money well spent.
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Anonymous Coward, 21 Oct 2013 @ 1:30pm

When will these game reviewers learn that part of the deal of being granted the esteemed privilege of playing new releases before everyone else is that they have to kiss the company's ass?
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Anonymous Coward, 21 Oct 2013 @ 1:37pm

Re: Monday Blues
I have a feeling that Stephane of Wild Games Studio by now knows what the "Streisand Effect" is.
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Anonymous Coward, 21 Oct 2013 @ 3:32pm

Response to: Anonymous Coward on Oct 21st, 2013 @ 1:30pm
As far as I know, they just have to obey restrictions on when they put up content prerelease.

Your turn.
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That One Guy (profile), 21 Oct 2013 @ 8:26pm

Re: Response to: Anonymous Coward on Oct 21st, 2013 @ 1:30pm
You need to get your sarcasm meter checked, it seems to be dead.
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Anonymous Coward, 22 Oct 2013 @ 1:10am

Program generated content
AFAIK, if someone write program which generates content and someone use it to generate content, the program writer do not own the generated content, but the one who used it to generate the content.
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Ninja (profile), 22 Oct 2013 @ 4:03am

Re:
Even with moderation and even with the company maintaining that it is infringing the final step should be up to the uploader of the video. If the person wishes they can choose to take the matter to the court by refusing to take down the content. The only way a truly automated takedown should occur is when there's no manifestation from the uploader. Other than that it should never occur. If in any of the steps the uploader agree that it's not worth fighting or it's indeed infringing then he/she should be the one to accept the claim and allow the video to be taken down. Other than that it should be up to the courts, not some private moderator.
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That One Guy (profile), 22 Oct 2013 @ 6:14pm

Re: Re:
It would be a bit of a hassle sending counter notices, if a lot were received in a short time period, but with the system I suggest the video stays up until either the user him/herself pulls it, or the moderator does after determining that it's infringing.

Until one of those two things happen, the video stays up, to avoid the possibility you point out, that of a company sending notices around to censor stuff they don't like.
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Anonymous Coward, 24 Oct 2013 @ 4:03am

Re: Re: Re: Re: "He doesn't just Streisand Effect Wild Games Studio..."
na nu na nu shazbot
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MARVIN MARTIAN, 21 Nov 2013 @ 12:41pm

REMOVE DMCA REMOVE FIOA REMOVE ETRUST
REMOVE ALL SAFE HARBOURS REMOVE ALL EVIL FEDERATIONS REMOVE ALL ONLINE POLICIES
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