HBO Abuses The DMCA Process In The Name Of Game Of Thrones Spoilers

from the winter-is-[redacted] dept

Wed, May 11th 2016 8:30am — Timothy Geigner

We've talked in the past about how HBO has jealously protected its Game of Thrones property. The show, wildly popular to the point of being proclaimed as the most pirated show over certain time spans, has enjoyed success due in part to that piracy, according to the show's director, who made sure to add how much he hated that piracy that helps his show. Add to that HBO's insisting that certain fan gatherings and events centered around the show be shut down and we have a picture of a company and property very much at odds with anyone looking to share it in a way outside of their control.

As a parallel, the topic of spoilers often centers on this show. I happen to hate this topic with the fire of a thousand suns, but there is no doubt that some folks out there see unbidden spoilers as the great scourge of our generation. And perhaps that made some people pause when it came out that HBO had issued a DMCA takedown on a YouTube video that discussed such spoilers.

Besides from actual copies of episodes, HBO also appears to have an eye on those who talk about what may happen during the rest of the season. The Internet is littered with spoilers which HBO doesn't like, including those posted in Spanish by YouTube user Frikidoctor. Unlike many others, Frikidoctor is remarkably accurate with his predictions, and claims to have a source close to the fire who feeds him information. HBO doesn't like this and has pulled several of his videos, arguing that they are infringing their copyrights. This also happened to the video featuring several episode three spoilers which was uploaded a few days ago.

"I uploaded the video and two hours later HBO decided to take it down on YouTube [claiming] copyright infringement," Frikidoctor says, responding to the surprise takedown.

Again, perhaps there are some who have the instinct to cheer this on over a dislike for spoilers. Sadly for them, the law is not even remotely on HBO's side here. The claim of copyright on this specific video, in which episode three predictions are discussed, is as bullshit as it gets. While many of these kinds of videos will use actual episode footage to provide evidence of specific predictions or spoilers, Frikidoctor used zero footagein this video. In fact, the only content on the video altogether was the author appearing in it and discussing the upcoming episode. That's it.

Frikidoctor admits that he used snippets of trailers and other promotional material in earlier videos that were removed, but says that the video with the episode three "predictions" didn't include any HBO audio or video.

"In the last two videos they took down I had some frames from teasers and trailers they decided to share with everyone for promotional purposes. This time the video did not have a single frame or sound that belongs to HBO," he says.

Instead, the video was just him dressed up in a Mexican wrestler costume, discussing what would happen in the upcoming episode.

"So, they think that me dressed as a Mexican wrestler talking about predictions for episode three of Game of Thrones is their property. That it’s copyrighted material that belongs to them," Frikidoctor notes. "Isn't that misuse of the DMCA?" he adds.

Very much so, yes. As annoyed at spoilers as HBO might be -- though why they would be is beyond me -- there is nothing about someone dressed in Mexican wrestling garb discussing predictions for an upcoming episode of a show that could be remotely seen as copyright infringement. The claim behind the takedown is so far from reality that it might as well serve as a chief example of the way the DMCA takedown system is abused.

Fortunately, Frikidoctor has appealed the takedown with YouTube, and has even gone as far as to consult a lawyer as to what his next steps will be. Here's hoping he finds a way to punch back at the bully.

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Filed Under: censorship, copyright, dmca, dmca abuse, frikidoctor, game of thrones, spoilers
Companies: hbo, youtube

51 Comments

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crade (profile), 11 May 2016 @ 8:45am

The awesome thing about abusing the DMCA is that there is often only a short time where you really want to silence someone's speech anyway, and the way our system works you can just silence whoever you want for that short time. As long as you have the magic "I'm a big company" get out of accountability free badge of course.
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That Anonymous Coward (profile), 11 May 2016 @ 8:45am

Until there is an actual punishment for misuse, its going to continue. Giving corporations magical powers that let them do whatever they want because copyright is not how things should work.
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Matthew Cline (profile), 11 May 2016 @ 8:55am

Novels = spoilers?
If HBO's reasoning is legally sound, couldn't they also issue DMCA notices over discussions of the novels, since the TV series is based on the novels? Or has the TV series diverged enough from the novels for this to not matter? (I don't follow Game of Thrones at all, so I have no idea)
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wereisjessicahyde (profile), 11 May 2016 @ 9:16am

Re: Novels = spoilers?
At this point, the new season is ahead of the novels because it seems to take George RR Martin about a 1000 years to write the damn things.
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Anonymous Coward, 11 May 2016 @ 9:32am

LOL. "Abuses" aka protects their intellectual property by from people using it without permission. God this site and author is stupid.
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Anonymous Coward, 11 May 2016 @ 9:38am

Re: What was infringing?
What part of a video that uses nothing but original whatsoever was infringing? This rhetoric sounds just like Sega when they went on a mass delisting of Shining Force III videos of people merely talking about the game.

So please explain how merely talking about Game of Thrones hurts HBO's intellectual property?
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Anonymous Coward, 11 May 2016 @ 9:38am

Response to: Anonymous Coward on May 11th, 2016 @ 9:32am
0/10 obviosly didn't read the article.
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Dark Helmet (profile), 11 May 2016 @ 9:41am

Re:
Which part of their IP was HBO protecting, exactly?
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Anonymous Coward, 11 May 2016 @ 9:48am

Re: Re: What was infringing?
You realise that "Game of Thrones" is intellectual property, right? HBO is well within their rights and I support them.
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Anonymous Coward, 11 May 2016 @ 9:50am

Re: Re: Re: What was infringing?
I see you are discussing Game of Thrones. You may want to cease and desist as you do not own the copyright for that property.
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Anonymous Coward, 11 May 2016 @ 9:54am

Re: Re: Re: Re: What was infringing?
Derp. Am I making a Youtube video that results in ad revenue? No. Good god Techdirters are dumb.
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Anonymous Coward, 11 May 2016 @ 9:57am

Re: Re: Re: Re: Re: What was infringing?
You are making a comment on an ad-supported website that generates revenue from the ads it serves alongside articles discussing topics such as the one you are currently engaged in. Please cease and desist all further discussion about the property to which you have no ownership of.
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Anonymous Coward, 11 May 2016 @ 10:01am

Re: Re: Re: Re: Re: Re: What was infringing?
I can see I'm not having a conversation with an intelligent person capable of rational thought over here. Keep on trolling and missing the point, Techdirters. I guess if whining baselessly over inconsequential things makes you happy.....
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Anonymous Coward, 11 May 2016 @ 10:10am

Re: Re: Re: Re: Re: Re: Re: What was infringing?
"You win."

Thank you. I'm glad you finally saw the errors of your ways.
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Anonymous Coward, 11 May 2016 @ 10:15am

Re:
The law has not yet removed fair use, despite what the publishers want, and are abusing the DMCA to eliminate as much as possible.
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Anonymous Coward, 11 May 2016 @ 10:18am

Re: Re: Re: Re: Re: Re: Re: Re: What was infringing?
LOL, if you say so. I don't think you won anything since all you were doing is babbling nonsensical ramblings that weren't even remotely related to the topic but whatever makes you happy I guess?
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Anonymous Coward, 11 May 2016 @ 10:19am

Re: Re:
"Fair Use" is a misnomer and does not excuse you from using somebody else's intellectual property without proper compensation.
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Anonymous Coward, 11 May 2016 @ 10:21am

it's not as if HBO is the only one that does this! thanks to Congress being bought by the entertainment industries, they are all doing it and not a one is pulled up about it, let alone had a legal repercussion executed on them! and as long as Congress carries on being 'enhanced' by the industries, there will be no stop to the number of ties this sort of thing happens. funny how when Google, that doesn't necessarily do anything wrong at all and Congress is all over it like a fucking rash!!
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Matthew Cline (profile), 11 May 2016 @ 10:27am

Speculation = infringement?
So speculating on copyrighted work is copyright infringement if you make a profit off of it?
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Anonymous Coward, 11 May 2016 @ 10:27am

Re: Re: Re:
How much have to paid to use the name "Game of Thrones", or is your use permitted by fair use laws?
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crade (profile), 11 May 2016 @ 10:27am

Re: Re: Re:
There isn't any "Use" at all in this case, fair or not. This guy is talking *about* game of thrones, apparently not even using it in his video in any way at all.
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crade (profile), 11 May 2016 @ 10:27am

Re: Re: Re:
There isn't any "Use" at all in this case, fair or not. This guy is talking *about* game of thrones, apparently not even using it in his video in any way at all.
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Anonymous Coward, 11 May 2016 @ 10:30am

Old saying
They used to say about the police: "You can beat the rap but you can never beat the ride."
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Larry Zerner (profile), 11 May 2016 @ 10:45am

Spoilers don't hurt
The crazy thing is the idea that spoilers will hurt viewership. Three of the biggest movie series of all time are Harry Potter, Lord of the Rings, and Hunger Games. All of these movies were "spoiled" in that most people knew everything that was going to happen because they already read the books. Yet it was because of that, that the movies were so successful. GOT became the most successful show of all time even though until now, a large chunk of viewers knew everything that was going to happen. Even now, people can see that the R+L=J is true. Does that mean that we won't watch the show. Of course not. HBO's actions, on top of being wrong in a legal sense, are pointless because they have no effect on the viewership of GOT. If people want to know spoilers, they will seek them out. If they don't, they won't. But, in either case, they will keep watching.
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Leigh Beadon (profile), 11 May 2016 @ 10:46am

Re: Re: Re: Re: Re: Re: Re: What was infringing?
Let's all calm down, and find out if you're actually seeking "a conversation with an intelligent person capable of rational thought" or if you're just a troll.

I'm sorry, but you do seem to have fundamentally misunderstood some aspects of this story, and/or some aspects of copyright law. Please consider these points:

- Owning the copyright on a work, like a show or a book or a song or anything else, does not mean you can stop other people from discussing it or referring to it by name. That is not even close to any of the enumerated legal rights that constitute copyright. To discuss Game of Thrones, to review Game of Thrones, even to spoil Game of Thrones, is in no way copyright infringement all by itself. That's not debatable, that's a fact.

- The question of whether something makes money is largely irrelevant here. The definition of copyright infringement is not dependent on whether the potentially infringing work makes money or not. The question of making money can be a factor in a Fair Use determination, but that is also irrelevant in this case: the video did not use any material from Game of Thrones, and as such is not even potentially infringing, so there's no fair use question here. There is no "use" that has to be determined to be "fair" or not, because there's no "use" at all.

So, please, instead of continuing your "i'm a genius and everyone here is an idiot" rant, dig into this situation a bit and explain your position. No footage was used, no copyrighted material of any kind was used, there was absolutely nothing in the video that constitutes even potential copyright infringement - not from a legal perspective, not from a philosophical perspective, not from any perspective. What rights are you alleging were violated? Can you please explain?
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Kumouri (profile), 11 May 2016 @ 10:47am

Perfect case for 512(f)?
Is it just me or is this not the perfect case to get 512(f) damages?

I mean there is 0 way HBO could have actually thought anything in the video was infringing.
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Anonymous Coward, 11 May 2016 @ 10:57am

Re: Re: Re:
"Fair Use" is a misnomer and does not excuse you from using somebody else's intellectual property without proper compensation.

I'm not sure I understand what you mean by this. What about fair use is a "misnomer"? And what point are you trying to make about "compensation" exactly? Presumably you do know that copyright law has little to do with compensation, and is in fact about permission (with the exception of mechanical royalties in music). Neither the fair use doctrine nor any rulings that invoke it or deny it make any mention of "compensation" - so it's unclear to me why you're bringing it up here.
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Anonymous Coward, 11 May 2016 @ 11:04am

Re: Old saying
New saying: "You can beat the rap, so I'll just shoot you in the face. No, wait. Scratch that 'beat the rap' bit and replace it with something about you reaching for your waistband. OK, good deal."
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Anonymous Coward, 11 May 2016 @ 11:04am

Re: Spoilers don't hurt
are pointless because they have no effect on the viewership of GOT.

Not true, the actions have convinced me NOT to buy the DVD sets.
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Anonymous Coward, 11 May 2016 @ 11:12am

there is nothing about someone dressed in Mexican wrestling garb discussing predictions for an upcoming episode of a show that could be remotely seen as copyright infringement.
Five years ago, I would've doubted that the above statement could be used as anything except an absurdist non sequitur punchline.
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That One Guy (profile), 11 May 2016 @ 12:06pm

Re:
Welcome to the madness that is copyright law, specifically the lengths some will go to to abuse it.
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Anonymous Coward, 11 May 2016 @ 12:06pm

Re: Re: Re: Re: Re: Re: Re: Re: What was infringing?
Leigh, you are obviously not an intelligent person, as you clearly failed to realize the troll, er poster, wasn't talking about "copyright", he/she/it was talking about INTELLECTUAL PROPERTY!!! (You, know thing that DOESN'T EXIST IN LAW, which justifies the "content creator", usually a corporation that didn't actually create anything, demanding anything of anyone who did anything even remotely connected to their "property"). This obviously intelligent and rational (...) argument shows that HBO was fully justified in doing anything, up to and including assassinating anyone they don't like who even mentioned the show without their permission. Just like it would be fully reasonable for the owners of "March of the Penguins" to send "cease and desist" notices to butlers for dressing like their star players.
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Anonymous Coward, 11 May 2016 @ 12:09pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: What was infringing?
I have three little suggestions that will massively improve your life:

If you want intelligent conversation, don't talk to yourself.
If you want to see a true idiot, look in the mirror.
If you want to insult other peoples' intelligence publicly, don't start by proving yourself a moron.
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Anonymous Coward, 11 May 2016 @ 12:34pm

Re: Re:
Well, it wasn't copyright - none of their copyrighted material was used. It wasn't patents because even nowadays with all the "improvements" in patent law since it was sane you can't patent a TV show. It can't have been trade mark, because the video wasn't competing with the TV show, not could the review have been confused with the show. Must have been trade secrets. The only problem there being that the DMCA doesn't cover trade secrets and can't (on pain of being not punished in any way) use the DMCA to protect trade secrets. I guess you got me. Not that I expect the original poster to understand... because "INTELLECTUAL PROPERTY"!!!
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Anonymous Coward, 11 May 2016 @ 12:37pm

Re: Re: Re: Re:
He (or she) is bringing it up for one of three reasons:

1) He (or she) is a troll.

2) He (or she) is a moronic idiot with no understanding whatsoever of the subject he (or she) is prattling on about.

3) (My favourite). Both 1) and 2).
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Leigh Beadon (profile), 11 May 2016 @ 12:40pm

Re: Re: Re:
The only problem there being that the DMCA doesn't cover trade secrets

I know you're just kidding around, but that's far from the only problem with that idea :)
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Almost Anonymous (profile), 11 May 2016 @ 12:44pm

Re: Re: Novels = spoilers?
Yes and no. The wall portion is beyond the novels, but the Iron Islands are way behind. One of my (many) gripes with the show is how much it has screwed up the timeline of things.
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Almost Anonymous (profile), 11 May 2016 @ 12:48pm

Re: Perfect case for 512(f)?
No one has successfully won damages on a false DMCA claim yet. At this point, it is doubtful it will ever happen.
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Kumouri (profile), 11 May 2016 @ 1:04pm

Re: Re: Perfect case for 512(f)?
That's why I think this one is perfect. Because it is so obvious that none of their copyrighted material is used. Other cases often have some fair use element or something else that made the use non-infringing, this one there wasn't even USE to begin with.

But I definitely wouldn't blame him for not suing because 512(f) definitely seems to be nothing at this point.
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That One Guy (profile), 11 May 2016 @ 1:09pm

'My bot did it.'
You might think so, but no, the bar's been set impossibly high such that it's effectively impossible to trigger damages for filing a bogus DMCA claim.

For example despite the theoretical requirement for the one filing a DMCA claim to swear under penalty of perjury that they attest to the accuracy of the claims made courts have seen nothing wrong in use of bots, which cannot swear under penalty or analyze fair use or anything beyond 'Does content X show up here?'(and even then their accuracy can be rubbish), in clear violation of the requirement.

If a company gets caught sending bogus claims and taken to court? 'Not our fault, it's a problem with our bot, and we're looking into the matter'. No punishment, rarely even a warning, just 'Everyone makes mistakes, and it's not like anything important was harmed by your false claim, so case dismissed.'

At this point I'm pretty sure the one sending the claims would have to admit, in court, that they knew for a fact that the DMCA claim they were about to file was fraudulent and so knowing sent it anyway, and even then I imagine the judge would let them off with a "Don't get caught doing it again" slap on the wrist at worst.
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Leigh Beadon (profile), 11 May 2016 @ 1:19pm

Re: 'My bot did it.'
despite the theoretical requirement for the one filing a DMCA claim to swear under penalty of perjury that they attest to the accuracy of the claims made

I've said it before and I'll say it again: the deviously worded DMCA does not in fact require that, theoretically or otherwise. The "penalty of perjury" portion only applies to the statement that the notice-sender is (or represents) the copyright holder of the work that is allegedly infringed upon. The remainder of a DMCA notice requires only a "good faith belief". This is not only true of the template notice text, but true of the requirements as set out in 512(c)(3):

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Frankly, I have to tip my hat to the people who devised that wording. Nearly everybody, when discussing DMCA notices, assumes that a penalty of perjury technically applies to the entire thing - but that's simply not the case, thanks to the subtle positioning of those words mid-sentence in point (vi) -- after the requirement of a statement that the information is accurate.
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Anonymous Coward, 11 May 2016 @ 2:21pm

Re:
And yet you cared enough to comment....
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Anonymous Coward, 11 May 2016 @ 2:25pm

Re: Re: Re: Re: Re: Re: Re: What was infringing?
You projecting like a drive through theater.
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Anonymous Coward, 11 May 2016 @ 2:51pm

Re: Re: 'My bot did it.'
Something popped into my head while reading this -- besides the fact that, yes, I'm one of those who always forgets about the weaselly perjury-wording thing. When it comes to 'good faith' exceptions (which I usually think of in reference to LEO behavior), my usual response is that 'looking stupid' is the best way to exploit it: the less you seem know, the more believable it is that you didn't know you were violating a rule/law.

But in the context of corporate persons, I thought of a variation on that ploy: instead of looking dumb, it helps make 'good faith' seem reasonable if one appears to be a self-centered, narcissistic jerk with an extremely inflated ego. If you can't imagine ever making a mistake, you obviously can have no doubt that your every action is valid and legal.

Put 'em together, and suddenly the whole world makes sense: 'good faith exceptions' explain why everything seems to be run by idiots or egocentric psychopaths.
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Espryon (profile), 11 May 2016 @ 2:59pm

Re:
If they're this worried about having their spoilers censored, I don't understand why they just don't post them on I2P and/or TOR like everyone else. It seems like we're headed in that direction anyway, especially if Hillary Clinton gets elected and she builds her "Manhattan Project to undermine encryption", the fifth amendment is already dead in the sense that US law enforcement either local, state, or federal can imprison you for not giving them encryption keys. Imagine when encryption is truly undermined by what HRC has hinted at hoping to accomplish.
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Espryon (profile), 11 May 2016 @ 3:09pm

Re:
Welcome to America! Corporations don't even have to have accountability as far as paying taxes, take a look at the Panama Papers. https://en.wikipedia.org/wiki/Panama_Papers
As far as Google giving anyone who has any type of copyright, trademark, etc over an entity irregardless of date, they determine what constitutes fair use, what is not copyrighted, etc. Try uploading something that no longer has a copyright to youtube and see what happens, guaranteed if there is a later work; your video will be taken down and/or the company claiming the copyright will be able to monetize your work.
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crade (profile), 11 May 2016 @ 3:23pm

Re: Re:
You should elect Trump instead. He will build you a wall to keep out encryption that will work way better than any Manhattan Project!
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Kronomex, 11 May 2016 @ 4:07pm

I gave up watching watching the television series at the end of the second series and the books are gathering dust on my shelves. HBO is pathetic if they have to sink as low as using fraudulent DMCA take downs on people who have guessed and figured out how a piece of FICTION is going to end, "Oh no, we might lose $10.00 in profit so we must crush this upstart."
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That One Guy (profile), 11 May 2016 @ 4:23pm

Re: Re: 'My bot did it.'
Good catch.

I guess I as well as many others assume that the entire claim is under penalty of perjury, which would make sense given you're talking about something that will remove speech and/or content posted by someone else, rather than just the assertion that the one making the claim is who they say they are.

As you say it's an incredibly devious and sleazy bit of wording, and one that has people thinking one thing while the law says another.
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Anonymous Coward, 11 May 2016 @ 6:52pm

Anonymous64 just hates it when due process is enforced.
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crade (profile), 11 May 2016 @ 10:17pm

Re:
How are they supposed to lose 10$ profit? Is someone somewhere going to cancel their HBO because of this prediction? Who is to say people won't sign up for HBO because of his predictions? It's all control and regulatory capture. Copyright lawsuits are playing the long game.
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