librarypunk - 117 - Copyright and Trademark Takedowns

Episode Date: January 12, 2024

We’re covering the Chuck Tingle thing. Also the damned mouse. Do we need DMCA for Trademarks? Who knows!   Join the Discord: https://discord.gg/QTr6Tn6YMk  UPDATE on Tingle story at TLA: https://www.lgbtqnation.com/2024/01/book-event-disinvites-queer-author-because-his-disability-aid-makes-others-uncomfortable/ Media Mentioned https://boxreceiver.medium.com/a-case-for-library-archives-boycott-and-divestment-exlibris-493737a911c5. Chuck Tingle post: https://www.tumblr.com/drchucktingle/739065274126499840/the-texas-library-association-tells-chuck-tingle?source=share  https://mashable.com/article/youtube-demontizes-public-domain-steamboat-willie-disney-copyright-claim  Even 2023. Keeping the Good Faith: YouTube, Fair Use, and the DMCA Meyer n.d. https://theholmesfirm.com/takedown-notices-why-trademarks-and-copyrights-are-so-valuable-but-can-lead-to-damages-for-infringers/ Percival 2020. Social Networks, Counterfeit, and Contributory Trademark Infringement: Are Social Media Giants Still Protected Ten Years After Tiffany? https://scholarlycommons.pacific.edu/cgi/viewcontent.cgi?article=1355&context=uoplawreview  Dong 2022.  https://jbipl.pubpub.org/pub/fzs4ru5v/release/2 Balancing the Interests of Trademark Owners and E-Commerce Platforms during the Internet Age  

Am I talking about the Tectingle thing, I guess? You are the Texan of the group. I suppose it's my responsibility. Okay. I'm Justin. I was called Com Library, and my pronouns are he and they. I'm Sadie. I work IT at a public library, and my pronouns are they them.

And I'm Jay. I'm a music library director, and my pronouns are he, him. And then here's a damn-ass fucking gay, you damn-ass rock. What the hell was that? No, did I say something about a gay-ass rock? And then here's a damn-ass fucking gay, damn-ass rock. I don't understand.

I heard gay ass. It's like two skateboarding eight-year-olds, and one kid wipes out, and the other kid grabs the rock. It's like, here's why he wiped out, bro. It's just, it's because of this. And here's a damn-ass fucking gay, damn-ass rock. I feel like I'm having a stroke. It's the fourth mic. A gay-ass stroke.

Yeah. U-woo. It's a good video. I'm so mad you made a drop of me saying U-woo. Yeah. That'll happen. Stop being quotable then. Mm-hmm.

Did I get rid of the other one? All right. We're going to start off with, I guess, news. Is it me first or you first? You first. Okay. I didn't know if this was news more so. I can't, hey, let's talk about it.

A case for library archives, boycott, and divestment, X Libris. Yeah, a thing I've been annoyingly tweeting about for months. Mm-hmm. So there's this really great write-up by David's day. I apologize, David, for not knowing him pronounce your last name. And this is actually taken from a panel he did, or they did, he did. My apologies if I've gotten your pronouns wrong in 2022 for the Society of American Archivists. And basically it sort of goes over the history of sort of professional boycotts, like, of

organizations, like participating in like BDS-type stuff in libraries and archives, right? And it was really interesting. I learned a lot, like, especially SAA, like, they actually worked on a boycott for states that didn't ratify the Equal Rights Amendment. They even moved meeting sites in the early 80s, like, to Boston. Yeah, like, staying in like an ERA state, which I thought was pretty cool. And then it kind of goes over, like, you know, there's a precedent here of different organizations being like, hey, we're not going to fund travel to specific states based on X, Y, Z reasons. right? However, we start seeing that like once BDS as a concept starts getting involved, that all of a sudden, oh, Sadie. What is that? It wasn't? BDS? Yeah. It was not explained in the article. Right. So BDS stands for boycott, divestment, and sanctions. And it was officially, like, it's sort of inspired by like the boycotting of apartheid South Africa as a way to put pressure on that government. meant to fucking cut it out. Like, the only way to make them stop was money, right? And so BDS is a Palestinian movement and it's asking people outside of Palestine, particularly like the organizations, but also people like boycott certain companies if you can. And then organizations should divest from investments or whatever. And sometimes they will do more targeted boycotts like we

have been seeing now with things like Starbucks, like don't or like Elbit, right? You You don't buy Sabra hummus, folks. Don't eat that shit. There's better hummus. But stuff like that. It's both an individual thing, but also organizations. And several states, I believe it 30-something states, maybe less than that, I don't know, have made it illegal for, like, in a workplace, I think specifically for workers to do BDS stuff saying that it is anti-Semitic to do so. You can't contract with a company that is doing BDS in Texas. Yeah. So if you contract with, say, like, a food vendor and that food vendor says, I support Palestinians, like, that could be enough to cancel a contract in Texas, which I think is like a real case that happened. Yeah.

It's fucking wild. And you can also, like, demand your money back, too, I think. Mm-hmm. Yeah. So, like, you know, look and see what state you live in because you as a worker might get in trouble for doing BDS stuff because it legally in your state is seen as anti-Semitic under like the law that like you are you're bullying the state of Israel basically it's fucking bullshit but there have been a lot actually in various professional organizations that have

supported it so for example the Association of Asian American Studies endorsed BDS in 2013 and was the first organization to do so American Studies Association then did so in 2013 with more than 60% of its membership in favor. But it only, sometimes when this happens, it will only be like to prohibit, quote, formal collaboration with Israel. But like, if you travel to Israel,

then that's fine. But you can't like be sponsored by an Israeli university or something, right? And it's like non-binding on members because these are bourgeois organizations. So they have like this whole individualism thing. that like radical organization, like the IWW is like, if you fit these criteria, you cannot be a member. Like, you're out. It doesn't matter.

You're like, our organization isn't for you anymore. Yeah. So there are several professional organizations that endorse Palestinian, like the Palestinian BDS movement in some form or fashion, but they're kind of, again, non-binding to members. They're kind of wishy-washy. ALA sucks around this predictably. Of course.

Except that, you know, cert, the social responsibilities roundtable, which historically has been one of the only good things about ALA consistently, right? CERT had the very first queer professional organization in it, by the way, the task force on gay liberation. That was in CERT. And so they keep passing resolutions about Palestine, like, since, you know, like the one quoted here was in. 2022, when ALA passed the resolution on the destruction of Palestinian libraries, archives, and other

cultural institutions. And cert has gotten the council to pass several of these resolutions. But the thing in this write-up that gave me a little chuckle was, counsel again acted in 2009 passing a resolution for the, quote, protection of libraries and archives in Gaza and Israel, and urging, quote, the U.S. government to support the United States Committee of the Blue Shield in upholding the 1954 Hague Convention for the Protection of Cultural Property and the Event of Armed Conflict. CERT notes that the resolution was, quote, amended to the point of uselessness. I'm like, yep, cert is good at calling out people's bullshit.

This shouts out to CERT. Can we get some CERT people on the pod? They're cool. So in 2015, a resolution on the destruction of libraries and schools in Gaza was defeated in ALA Council. So withdrew other resolutions on divestment. In 2021, ALA's International Relations Committee defeated another resolution. However, a resolution on destruction of schools and libraries in Ukraine, oh, overwhelmingly approved. That was fine. I think that was the same year. Yeah, that's the same exact year.

It's like, fuck Palestine, we guess. But Ukraine is, you know. And then in 2022, just a year later, a resolution upholding the right of librarians to gauge in boycotts. And this doesn't say specifically BDS boycotts, just boycotts, period, not even related to Palestine. Maybe it was different than resolution. I didn't go that far because I'm a bad podcaster. But it says that it was defeated in counsel overwhelmingly. So, ALA doesn't even support the right for librarians to boycott for any reason, let alone BDS.

So it's like, we passed, like, ALA has passed all these for Ukraine, but hasn't passed them for Palestine. Or if it has, they've been watered down to be useless. They're basically lib nonsense at that point, right? And so what the point of this article is, going over that precedent, is sort of going, okay, so like, what do we do? Right. So often it's like these organizations are probably not likely to endorse BDS because they have to balance stakeholder activism with actual like financial responsibility. This person notes that that this approach led them to keep the 2011 conference inside a boycotted hotel. Because like sometimes, you know, if you're going to cancel something, it's going to cost you a million dollars or something and you just can't do that at that point. If you've already booked it, we book things years in advance. And, in this profession, right? And that's the only way to get things booked. So what does actual like corporate engagement look like and like what does librarian engagement like look like? And basically what they're saying is that so like what we as librarians and archivists and library

workers can do. So if we aren't going to rely on our professional organizations to do the right thing here, which we really can't rely on them to do that depending on where they are, is to sort of think about like what we can do individually and this article lasers in, lasers in on ex-Liebris products, right? That's related to libraries. And it is something that like we can actually talk about and actually like ha some pushback with. I mean, Sam Popovich, who we've had on the Pa before, Friend of the Pod, shouts out, wrote

about this already saying that like it's going to be hard to convince. The real thing here is to convince library leadership and university admin and more importantly the university of lawyers that the proper course of action here is BDS, even if it's just, hey, let's get rid of Alma Primo, right, to say fuck out, ex Libris. So this person walks through like a hypothetical scenario and I don't necessarily agree with them all the way, but I think I maybe need to think through it more. So obviously, educate your workforce and your workplace. That's what we're trying to do here as well. But also there's the librarians and archivists with Palestine. They've got a lot of great resources.

talk with your coworkers about this, et cetera. They obviously also talk about like, hey, maybe don't use X Libras. Maybe use something else. Cool, great. But the one that I like, I'm not sure. Like, I see what they're trying to say, but I'm still not sure if it's the right approach. And I don't know. Maybe I'm like, it's like the capitalism fear creeping in is doing a slow work slash work

to rule with Alma libraries. And so what this would look like, so we couldn't like boycott Alma. using libraries, like ex-Liebers libraries, but to sort of like not reply to emails very quickly, or to maybe not work on committees, like not join committees with like people who work for Alma libraries, for example, respond to ILL requests late, don't do inter-institutional collaborations, still do the job, but add a layer of friction. And like I see what they're trying to do because if you are a library, say you're Harvard, which you use. is alma prima, right? It's a, it's an ex Libris library system. And you are, you know, a Harvard

colleague emails you or you get an interlibrary loan request from Harvard, maybe wait until the very last day to respond to the ILL. You know, and it's like, say enough people start doing that, then that might put pressure on Harvard to switch to a different product. And I, and I understand that, but what I think is likely to happen is that like, that would need to be way more. organized, like, to actually have that pressure work. It was just individual workers. Those workers are going to be the ones that get in trouble. And, like, we should be putting stuff on the line for this, I would argue. Like, let's have some integrity here. But also, it might be putting the people who work at those libraries. Like, if they need you to respond to your, to that email or

something, like, and you're not, if you are fucking up their job, it's not the university admin that's going to get hurt there. It's that worker. So, like, I like this approach, but I feel like it needs way more organization and solidarity behind it. There's a reason why you don't just do Wildcat strikes out of nowhere, and it's because you need to plan these things and support them. So you have strike funds so that, like, you know, things are directed, like, people are supported. Like, yes, strikes are supposed to be inconvenient and they are supposed to be disruptive. Boycotts are supposed to be disruptive. Work to rule is supposed to be disruptive. But there's a way to do it that has as much protection for the workers as possible.

I don't want to fuck over other workers here just because they happen to work for a place that uses Alma Primo. But that's my own thoughts here. I also might be like misreading the situation wrong and I might be missing something. But that's my kind of thoughts here. I agree with you on that just because like how are they supposed to know that that's why they're not responding to your ILL requests or email? else. Like, are they supposed to infer that because they're on an on an alma system or whatever it is, but or are they supposed to, or maybe they just think that you're lazy and unreliable as a library. Which is true for me, but. I'm one person.

Yeah. I get your ILLL late. It seems to disorganize to really work in long run unless you're like this person and have declared that that's exactly what you're doing. Yeah. I agree with you, Jay. Yeah. It has to be known. Yeah.

I think it's the whole thing about a boycott is people need to know you're doing it. Yeah, like there needs to be like those in power need to be hurt by it. But they have to know why they're being hurt by it. They can't just be hurt because if they're just hurt and they go, we don't know why this is happening. Then that doesn't do anything besides hurt them, which is still good. Yeah. I mean, be lazy at work. That's also fine.

Yeah, you should just also be lazy at work. It's fine. Yeah. You should always be doing work to roll. If you got time to clean, you've got time to lean. Your job's not that important. You should always be doing work to rule. Never do what's not in your job description.

Thank you for coming to my TED Talk. All right. One news. Chuck Tingle was disinvited from the Texas Library Association. I guess that's fucking my fault. So I've got to talk about it. So Chuck Tingle was invited to talk at a panel or I believe maybe No, it was a featured speaker at Texas Library Association Annual Conference, which is coming up pretty soon. I know some people who are already planning to go, so it's like only a few months away. After accepting it, he got a request. The TLA asks the publisher if Chuck would be okay with not wearing the mask, the bag that he wears on his head, to which the publicist publisher said, what are you talking about? That's how Chuck presents himself. The bag is.

is part of his autistic boundaries, and it allows him to express himself and relieves his chronic pain from neurotipically masking, and has his private identity a sacred thing. So he can present, but when he's Chuck Tingle, he requires the back. He also quotes TLA's official stance on disability issues and some other people being masked at the TLA in the past. An email was sent from TLA saying he could come and wear his mask in the exhibition halls in smaller panels, but not on any of the big paid panels, like the one he was supposed to participate in. I wonder if something got misread here because all the panels are paid for. But I guess like if he's being paid, they get to make more bullshit rules for him, which is, again, not in line with their disability issues. And also they had already invited him. There was no actual policy about not covering face. There was an update on Twitter, which is probably what really happened, which is Texas Library Association, are being pressured by the state government to cut ties with ALA. And I've probably, someone probably just got a phone call. I don't know anyone on the steering committee for TLA, although maybe I, hmm. I mean, Chuck Tingle does write a lot of butt fucking books famously.

So I'm wondering if that has something to do with it. I mean, they have other queer people at TLA. They're going to have George TK though this year. Yeah, but just George D.K. Wright pounded it in the ass by my hot Bigfoot boyfriend. Well, and I think that I was actually, after I read this, I was actually reading through Chuck Tingle's Tumblr because I found it weirdly interesting. But he's promoting not one of those books right now. Yeah. So, like, the book that he's promoting isn't one of the, like, pounded in the ass by my Bigfoot boyfriend sort of books.

It's like a gay misconduct. mystery, but one update to this is another gay author who writes romance novels. Probably don't have pounded in the butt in the title, but probably just as explicit, withdrew from the same paid panels as him in protest, basically taking the financial hit and solidarity. Solidarity, T.J. Clune, I think. Yeah, that's the author's name. Go buy their books. Go buy his books, too. Yeah, have your library buy them, solidarity. Yeah. So it's probably that TLA wanted to invite Chuck. Chuck has in the original post a lot of like speculation about like why it happened.

Maybe he wasn't being taken seriously. I really don't think that was it. I think most librarians in Texas are pretty left liberal because I work with a lot of them. And I know that, you know, most of them are actually quite better than the average Democrat, honestly, that you see. So because they have to be because like you're going to be a Democrat in Texas. You might as well go all the way with it. Like, there's no point pussy footing around doing half measures, you know. So they tend to be, like, pretty progressive people, you know.

So I think someone just from the top said, we're not doing this. We can't do this because Senator, state center, so-and-so called me and made a threat and some shit. It's most likely what happened. It's interesting to see if the TLA responds. They won't. I looked at their Twitter just in case they, like, even mentioned it. Or if they had previously promoted him. If they had, they've deleted it.

I'm not saying they had, but I was looking to see if they had said, like, Jack Dingle's going to be here. If they did, they deleted it or they just hadn't finalized him. I don't know. But anyway, Chuck, come on the pod. You can wear the bag. You can turn your camera off. We won't even look at you at all. We'll turn our cameras off too.

Come on the pod, Chuck. No one will look at each other. No one will look at each other. So if you know Chuck, tell him, go on library punk. They're cool. We think he's cool. Yeah, and they think you're cool. All right, that was news.

All right. We want to talk about something Justin's interested in. Great. So we're going to talk about trademark and automated takedowns. Why we're on a. on this. There was a matchable piece that was doing numbers about YouTube demonetizing

Steamboat Willie after January 1st where someone had done a monetized video. So this is like a YouTuber who has like over a million subscribers. So any video is immediately going to be monetizable. It has the short in its whole, you know, going up there.

I would say this is almost fair use anyway. But he's doing his own like voiceovers and sound effects through the cartoon. But he uses the whole thing. And shortly after uploading the clip, YouTube demonetized the video, which does a lot. You can't get money off of it. It can't embed in third-party sites. There's all kinds of bullshit that happens. It's limited in the algorithm. All stuff that a YouTuber needs to actually do their thing. So it has a lot of things besides just being demonetized and not being able to get ads. But it shouldn't have happened because

Steamboat Will is in the public domain. So that got me thinking, did Disney misfile a DMCA because Steamboat Willie is trademarked? Like that image. of Steamboat Willie is trademarked as well. Because that was some of the discussion happening about, like, well, Mickey Mouse is coming into the public domain, but you've seen, like, the logos and everything before Disney movies. They now have that Steamboat Willie, like, right before, I'm doing the whole Steamboat Willie motions.

You can't see it because this is a podcast. But they have him kind of like in a little seal, and, you know, it's trademark. It is literally like, this comes from Disney. And I use the cartoon itself, which is fucked up. They could just use a drawing, but instead they use the animation. Yeah. So the animation is like the trade. mark two. It's like a recognizable mark. This comes from Disney, right? So anyway, an update on this,

which people might not have seen, was within about a day. YouTube had, so immediately the creator, Brock Baker, I don't know if you should go see his stuff. It could be a Nazi for all I fucking know, but had disputed it, which is risky. And I don't know if we're really going to get into it, But YouTube, part of the YouTube takedown system is you can only contest three things at a time. And if you get three strikes against you, your account can be deleted. So most people don't even contest. They just take it down because that way, if you can test it and you lose, then that's like a strike. Whereas if you just take it down, it's not a strike.

Weird system. So he disputed it, which is risky because you might get a strike. And also what can happen is an entity can do like 20 copyright takedown notices. you can only contest three, and if you lose on all three, there goes your channel. So obviously, like, the balance of power is really bad, and that's what we're going to talk about. But this happened very quickly, probably because of the press. Disney released their claim. Reportedly, they did this on other copyright-striked videos that had Steamboat Willie because everyone was playing around with it,

you know, brand-new toy after January 1st. And with Content ID, it has to be a copyright claim. So what people are suspecting has happened, Disney hasn't said, is that this taked out. was automated. The content ID tool was not updated January 1st for everything that came into the public domain because why would you? There's nothing. What happened to YouTube and what they said was, and I've got it. I've got the quote right here. According to YouTube, the responsibility to release claims on content that has fallen into the public domain is with the content ID user, who in this case is Disney. So it's on them to go into content ID and remove things from 1928. But if they

don't, who fucking cares? Like, they're not going to get super. sued, right, because they're Disney and no one's going to bother suing them. So there's no real penalties for false takedowns. The game is highly favorable to copyright holders. I said the big ones, but also pretty much anyone, if you do a copyright takedown, the assumption is that it's just going to get taken down. So I wanted to talk about, you know, when I was thinking about this, I was thinking, did they use the trademark aspect of it? And they probably didn't. It was probably just that They didn't change content ID. They didn't update it to say that this is now in the public domain.

But it got me thinking, what do people do for trademark takedowns? And what will this mean going forward since, you know, the mouse is still under trademark? Like, what happens when trademarks are violated on a platform? Like, I've never really thought about it. I keep as far away from the types of intellectual property I don't have to know about for my job. So trademarks and patents, I really don't know all that much. I don't know the major laws. I don't know the major cases.

And with Steamboat Willie, it's like, you're allowed to use Steamboat Willie, including the cartoon. But like the trademark thing is that like, it has to be clear that it is not something made by Disney. Yeah. If there's even the, if any consumer, because theoretically copyright protects creators and trademark protects consumers. I'm putting big, dumb air quotes around all of those words. But if a consumer would be confused about whether or not. not this use of Steam but Willie is by Disney, like if they think it is and it's not, then you can be sued even if it's like fair use or public domain bullshit otherwise,

but if you do not make it clear that it's not from Disney, then you are technically then violating their trademark. Even if you're not using, whoop I hit my mic, sorry, future Justin editing this, even if you're not using like the little animated bit that they specifically put in front of like movies and shit now,

if there's no TM on it or anything. It's like if you put like a Nike swoosh in something, like you can't do that. Yeah. And trademark can last forever. Indefinitely, yes. So trademark. So like copyright exists as soon as something is created. It doesn't have to be registered and, you know, obviously has limits on it and doesn't

actually have to be in commerce. It doesn't have to be sold or anything. Trademark has to be commercial to be viable and exist. as long as it is used in a commercial fashion. So the Nike swoosh could outlast the heat death of the universe if it's still being used commercially, right? I learned all this because I signed up for Nebula and watched Legal Eagles video course on copyright, trademarks, and patents for content creators for this, because I was curious if they talked about content ID. And a very helpful overview of the difference between copyrights, trademarks, and patents as far as what each is supposed to do. It's pretty interesting.

I highly recommend it if you have Nebula. Or if you have your boyfriend's password to Nebula. So I'm going to start off talking about DMCA because it makes like surprise returns in this episode. Yeah, fuck you prince. So here's basically how the DMCA take down process works and is currently like legally standing. So as of the Ninth Circuit ruling, there's a subjective.

Subjective is important here. Good faith requirement that should. incorporate consideration of fair use, it doesn't have to because it's a subjective requirement. We'll get into that. But obviously, the take down procedures in place don't really care about fair use. So how is that allowed to happen? So this is a quote from Evan EVE-E-N-203. It's going to be in the notes. The subjective good faith-belief standard allows for copyright holders to claim a good-faith belief, even if completely erroneous. In other words, almost any resemblance of a review process, no matter how misguided or nefarious, will meet

the court's good faith requirements. So it's not a high bar to clear. Every time I hear the word erroneous, I think, of the musical Chicago. Continue. So basically, just to make sure. So basically, it's saying if the, oh, God, where did it? All the law's vibes based. Yeah. Like, so the copyright holder can just say that they're doing it in good faith. Even if they have the stupidest claim ever. We promise. We promise we're doing that in good faith. To prove it's not in good faith, you have to prove malice, which is the exact same problem with, like, a libel case, which is why liable cases that will go forward. You have to prove they are acting maliciously, which a smart company is never going to do. Yeah.

But we'll get more into that because thanks to a couple dumb YouTubers, we do have precedent on this. Too dumb YouTubers suing each other. Didn't H. Bomber guy talk about this? Maybe a long time ago. Hasn't H. Bomber guy talked about everything eventually? This is true. Yeah. Let's get him on.

That'll be fun. I don't think he's, I know that his friends can't reach him. Like, I don't think we've got a shot. H-bom, come on the pod. He lives in, like, a forest in Wales. I think he might be a fay. Like, no one knows when he's going to show up to parties or anything. That's probably for the best.

Yeah. I was a famous YouTuber. I also lived in the ones to pretend to be a fay. Also, he got fucking hot when he lost his hair and started growing a beard. Yeah. So the manual notice and take-down system from the DMC is Section 512C. So after receiving notice from a rights holder, an online service provider must investigate and

take down allegedly infringing content. The accused may file a counter notice based upon the belief that the content was removed in error in order to force the OSP to replace the content. The DMCA also requires OSPs to adopt a policy for terminating accounts for repeat offenders. So that's where you get the three strikes thing. It doesn't have to be three, but YouTube made it on rules. Importantly, OSPs do not have an affirmative duty. to seek, detect, or prevent infringement.

So even if they generally knew that, like, YouTube knows infringement happens on its platform. But that's general knowledge. Until they are made aware of a specific case, they are off the hook. And also DMCA creates a safe harbor, which will come up again. Meaning, if you have the takedown in place, you're allowed to claim protection under safe harbor. I think that's like one of the one good things about DMCA is that it's like, yeah, we know all this bullshit's happening. Because otherwise we just wouldn't be able to, I mean, well, intellectual property is

bad, we shouldn't have it. But like, while we do have it, I feel like that's like the one good thing about the DMCA is that like we wouldn't be able to have like online content because people are always going to be infringing things either accidentally or on purpose, right? And I read a lot about trademark and counterfeit today. And it's like, wow, we are never stopping counterfeiting. That is an insolvable problem. Good.

Be gay, do counterfeiting. Be gay, do crimes. I read a story about some lady who bought something on Facebook marketplace and it, like, glued, it super glued her lips together. It was like off-brand makeup. That is the bad part of counterfeiting is like. That is the bad part. In and on your body. It's like, go do that.

That's the bad. Be gay. Do crimes. Yeah. Buy makeup from like Target or Walmart or whatever. Yeah, that's fine. Just like buy. Just do that.

Buy fake Chanel bags, though, or whomstever is for good bags. I don't know. Or steal them. Or steal them. That's even better. Even cheaper. So YouTube, I think YouTube started 2002, 2003. They got a 2007 case with Viacom that even though they won put so much pressure on them that they started to create content ID to placate rights holders.

This is where we start to see the confluence because we're always hearing like old media versus tech companies, tech companies versus copyright holders. But now that tech companies like Google and Facebook are so big, they have a confluence of interests now. They're all in the same club. Yeah, Corey Doctor talks a lot about this in, like, this has talked about in a Chuck Point capitalism quite a bit, like the whole content ID system and fair use, if I'm remembering correctly. Yeah. Yeah, remember. So this led to licensing deals, fewer lawsuits. You know, they don't want to be suing each other.

YouTube doesn't want to be sued. They want to be in the old boys club. They want to give high fives at the country club. So, you know, they've got a confluence of interests happening. So content ID is really to placate rights holders. It's not really to protect the crew. creators that actually make the value for YouTube, right? Objective analysis is used, and this is, I'm going to use the word objective a couple

times. This is not the main one to pay attention to. Objective analysis is used in copyright law regarding unreasonable and frivolous claims. So Hughes v. Benjamin 2020 awarded attorney's fees to the defendant. Hughes was suing Benjamin, which is Sargon of Akad, Carl of Akad. He's a right wing asshole that H. Bomber guy has made fun of a lot. He calls him Carl of a CAD, which I think is very funny. He also ran for like a nationalist seat in the UK and lost because he's a big fat loser. His loserness is his fatness. He has a fat amount of loserness not his body. So in this case, Benjamin, Carl of Akad had used something from Hughes to critique it. So he copied, you know, something clearly fair use, like clearly fair use. He was doing commentary. He was mocking it. He was,

you know, doing what YouTubers do. The claimant was clearly trying to silence critique and they had to pay his attorney fees. So, uh, Carl Lovacad was a defendant in this case. Um, Hughes was suing for copyright violation. The problem is that even though in this case, the defendant won, the person who was using the copyrighted content, the subjective good faith belief standard isn't good enough. Um, because in this case, Hughes was bragging on Twitter that they were intentionally trying to shut Sargon down, which then, gives you what you need to say this was in bad faith under the current system. A company wouldn't be so stupid, but luckily, YouTubers are. So this YouTuber said, I'm going to shut him down. I'm

going to get his ass. I'm going to take his money. I'm going to make him stop making fun of me. And they brought this up in court and went, yeah, this is a malicious takedown. Obviously, this is an unreasonable claim. So you can use unreasonableness. And the subjective good faith standard didn't apply, it did apply, but it was outmatched by this was an unreasonable takedown. What Evan 20203 is arguing is there should be an objectively reasonable. This is the time objectively reasonable you should pay attention to. It should be the new standard. The problem with fair use, and if you know anything about copyright, you know that fair use can only be determined in a court. So someone comes to me and they say, can I make fair use of this? And I say, here's what you

want to do. Fair use, last resort. Can we license it? Can we do it some other way? through the library, can we get it for you? Fair use is our last resort because the only one who can determine when fair use happens is not me, it's not you, it is a judge. You don't want to get that far because now you're being sued. You don't want to get sued.

I mean, there are cases that are more clear cut than others. I don't want to fear longer people out of doing fair use. It is your legal right in United States copyright law that fair use is a thing. It's just that judges are idiots. Also, you don't want to get sued. And what I've

said is determine how big a target you are. If you are a small target, fucking straight up do piracy. If you are a medium target, do good fair use. If you're a large target, do really, really good fair use if you have to. If not, probably you should be licensing because you probably have the money. Yeah. You probably have the money. Give it up. Yeah. So objectively reasonable is like a specific legal term. It's used by cops to shoot people. But in this context, objectively reasonable would mean that objective viewer would reasonably assume something to be fair use or not a copyright violation. This is not the current standard in the law. The current standard in the law is a subjective good faith belief, which is you can submit this crappy thing and, you know, it's assumed to be in good faith.

An objective reasonable standard would mean objective viewer would reasonably look at this and go, is that fair use? Yeah, probably. So this puts the onus away from the content maker who's using the copyrighted material. It put the onus back on the person making the claim because the person making the claim now can't make a shitty claim. They have to say a reasonable observer would assume that this is copyright violation. So objectively reasonable analysis would simply require regular person's view that's fair use, such as audio playing in the background of a video that was incidental, right? So there was that one case of like the baby dancing around and Prince was playing in the background, and that was copyright violation because of the way the fair use standard.

But anyone would be able to go, this is clearly incidental use, this is clearly fair use. So currently, you don't have to put fair use in your DMC take-downs. If there was an objectively reasonable standard in the law, which this does require the law to change, then you would be able to say, no, that's not an objectively reasonable case of copyright infringement. And it doesn't have to go to a judge to make the fair use determination, because now you've got this other standard objectively reasonable, and that's much quicker. So it saves a lot of time. And also, if you have to go to court, the court has more

ruling to say, an objectively reasonable person would say that this is fair use. We don't have to do the whole fair use analysis. We can just say, yeah, it seems close enough. So it gives like, it rebalances the power. The problem, any questions so far? No. Okay. So the problem with the DMCA is that it's created for copyright, not trademark. And when I started this episode, I wanted to know about, like, what happens with the trademark. So I started looking around. I found this, like, this law firm that had a few, you know, had information on rightsholders.

So this is for rights holders, you know, what's going on. So CrossFit Incorporated owns the CrossFit trademark. Several years ago, a blog was started on Facebook called CrossFit Mamas. CrossFit was not pleased. Sent a DMCA takedown to Facebook, which, of course, was initially. successful because DMCA is always balanced in the interests of the rightsholder. CrossFit ultimately had to file a lawsuit against the infringer claiming trademark infringement because DMCA is a copyright act.

Trademark is different. The blog launcher filed counterclaims that CrossFit made material misrepresentations in the DMCA take down notice it sent to Facebook because it was trademark, not copyright. The U.S. District Court for Northern District of California agreed and ruled against CrossFit because CrossFit had attempted to use DMCA take down to process a trademark. So it has to be for copyright. It can't be for trademark. You can't use DMCA to do that.

But DMCA is going to come up yet again. Most companies are creating similar systems for trademark violations to font an ID. So whatever they have for their DMCA, they're creating a parallel process for trademark. So this is from Meyer, Indy. This is, I think, the same blog, the same legal blog. And this is a quote, most social media and internet. companies have processes and procedures in place for trademark owners that mirror DMCA take down notice for process for copyright owners. Mozilla has trademark notices using the same submission and information

process because not, but be careful, and this is them talking to the rights holder. Be careful because not all internet and online providers are like Mozilla. And Google announced in June, I don't know what date this was, but I think it's relatively recently, that it will support registered trademark owners and process through removal of unsponsored links on Google search, not just paid advertising or downloadable apps from Google Play. So I read a little bit more about this. I'll bring up YouTube again when I'm talking about infringement. But the question I had then is why create a trademark DMCA process when the law doesn't

force you to? So the main reason, obviously, is the shared interest between companies and tech, especially as tech grows into a new establishment. I mean, that's the real reason. That's the real material reason. But there's no requirement in the Lanham Act, which is our trademark and in Counterfeit Act. About secondary liability.

It's illegal to counterfeit something, but if you're at a market, like a flea market where things are being sold, who's liable? Like, is the flea market liable? Maybe. And in some cases, they were. Once this got to,

and like with DMCA, platforms do not have to verify something is not violating trademark or is counterfeit. They have no positive duty to do that. Secondary liability is a court-created concept based on common law standards of torts. So this is not in the Lanham Act. So secondary liability, there's two types.

Vicarious and contributory. Vicarious is really hard to prove because it has a high standard. No point in explaining why it's boring legal shit. Contributory is the one that is more common. So in 1982, Supreme Court decision on Inwood, this is kind of the test that they created in that case. If a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows has reason or has reason to know, is engaging in trademark infringement.

The manufacturer or distributor is contributorially responsible for any harm done as a result of the deceit. So that's why contributory is more common. It's easier to prove. I like the word deceit. Like it's so like scheming. You deceiver. So this is some like medieval Game of Thrones bullshit. Very conspiratorial.

So then my next question was, is YouTube slash Google slash alphabet afraid of contributory infringement? And so I went to Google, I just Googled like YouTube, trademark, take down. And here's what the support thing for Google for YouTube has to say. If you think your trademark is being infringed, keep in mind that YouTube doesn't mediate trademark disputes between creators and trademark owners. As a result, we strongly encourage trademark owners to speak directly with the creator who posted the content in the question. Contacting the uploader may fix the problem faster in a way that benefits everyone.

If you can't reach a resolution with the account holder, submit a trademark complaint to our trademark complaint form. YouTube is willing to perform a limited review of reasonable complaints. It will remove content, will remove content in clear cases of infringement. So they don't really seem to give a shit. I thought that was kind of strange because contributory seems pretty easy to prove. But unlike flea markets and other things, when it came to e-commerce, the courts decided to be very, very hands-off. So Tiffany versus eBay 2012, e-commerce platforms basically have to know exactly what is counterfeit,

giving them a generalized knowledge excuse to say they don't know what is being sold on their site. So they might know generally that same way with copyright that trademark infringement and counterfeits are happening. But if they don't know the specific instance and they can't be held liable as contributory. So e-commerce platforms have this huge like swath of protection because you have to prove that they knew something. And there are cases like for smaller domains. Like if you're a domain hoster and someone registers like Tiffany jules.biz, you're hosting their website, you're giving them an IP address, you know, and Tiffany, the company sends you his thing and says, this is not us. Yeah, if you don't take that down, you are in trouble. Yep, domain names are protected

through trademark law. Well, not just that, but it's, it's that Tiffany is saying, we didn't buy this domain name, but they're using our brand. So it's like clearly not us. And that's, that goes from general knowledge to actual knowledge. And actual knowledge is what you need to prove it. So Percival 2020 argues that since these companies are all data brokers, their data on the sales should count as actual knowledge. But I think that's kind of a problem. And Percival knows this too. Because when you buy something, you have the right to resell it. Like that's for sale. A library buys a book and sell a book and do whatever you want with it. You buy Tiffany products. You have the right to sell it. How would Facebook know that it's counterfeit from a photo? Unless the store name

was like Tiffany official. Then you could be like, okay, Tiffany sent me a thing and said, that's not our official Facebook marketplace seller. Obviously, you have to take them down. But there's so many counterfeiters, there's no way of stopping this. And counterfeiting is like a huge federal crime. Like you can get fined like $15 million for counterfeiting. Like it's crazy, but obviously it doesn't stop anyone. The actual knowledge thing is tough. So through all these articles that I read, there were some solutions, some fixes, some ideas. Evan, 2023, wants the objectively reasonable practice to defend against DMCA complaints. There's no incentives currently for rights holders to check for fair use. Content ID doesn't check for fair use. Very little recourse outside of costly

lawsuits. Revised the DMCA to add the objectively reasonable belief. It would then require a DMCA take I notice he contain a statement that the complaining party has an objectively reasonable belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and that would include things like Fair Use that currently doesn't have. Percival wants to amend the Lanham Act to give a DMCA-style safe harbor for online service providers, even if they have the required knowledge to be liable. If you have the required knowledge, by creating a safe harbor for trademarks, you're saying, okay, you have the required knowledge. But if you have the takedown process and the takedowns are timely, then even if you had the knowledge that would prove liability for like secondary trademark infringement, you are shielded from that because you have a process in place.

Same thing as a safe harbor for copyright. You're protected as long as you're doing something. And you only get that as long as you are doing the notice and takedown and you're doing. doing it quickly. So that's their idea is they want to make a DMCA for trademark. So for the future of the mouse, will Disney support a trademark DMCA? I'm kind of ending this on a lot of questions. Like, it could give them a lot of control they currently don't have because they could just send out those takedown notices whenever they're like, oh, this looks too much like it's coming from Disney. It's at least more granular than the power that they have now. In trademark class forever.

Yeah. On the other hand, the rules would be clearer. And if this trademark DMCA, included that objectively reasonable standard, then it could be even, it can make the take down a notice process more fair to creators. So I think if we combine these two ideas, if you had a DMCA for trademarks and you made it more balanced from the get-go between the rights holders and the creators, you could have something that at least everyone understood the fucking rules about this. Even if the rules are, you know, secondary law, they don't have to do with trademark or copyright, but they have to do with DMCA and DMCA for trademarks. At least everyone knows what's going on because you really don't want to get hit with

a trademark lawsuit because that could be jail time. Every state has trademark laws. There are federal trademark laws. You can get in a lot of trouble for violating trademark and copyright and counterfeiting. I always want to listen to run DMC when we talk about the DMCA. Yeah. Solutions. Step one, abolition of intellectual property.

Step two, abolition of capital. Step three, Dexie's Midnight Runners playing free daily in the university library. Hell yeah. Those are our demands. Also, Chuck Tingle come on the pod. Free Palestine, fuck Israel. Yeah. Get stop using ex-Libus products.

Do you assist a migration? Tell them, no, thank you. Get something else. You don't need ex Libris. You're not that big of a library, I promise. I'm just thinking of how you would phrase that on like a request for proposal, like the check marks that you have to go through to like rate. Because I don't know if this is true for universities,

but for public libraries, when you're going out for like a new ILS, you have to do a request for proposal and you have to have like a rubric. A lot of the time anyways, it depends, but you have to have the rubric on how like you rate the different things. I'm just thinking, is this an ex-libris product? Yes or no? If it's a yes, it just automatically removes it from the pool of proposals. Yeah, I mean, you can make the argument that like, that like ex-libris is a pro-quest thing and so therefore it's not vendor neutral and especially maybe if you're a place, that mainly uses Epsco stuff or you want something that's been under neutral. You can make the argument that it's just like too big and complex for what your system needs. There's a lot of

reasons why you might not want to use X Libris products, even beyond the BDS thing. But like, sure, does it make sense for like really large systems to use XLebris products? Like, sure, that's like who it's made for is like really big libraries. You, but like, it's really bulky. It's like really hard to run if you don't have a large staff. And yeah, it's because it's ProQuest, it makes it really hard to work with EPSCO products.

And vice versa, if you use EPSCO stuff, it makes it hard to work with ProQuest. There aren't very many vendor neutral systems out there, but we should be steering more towards them unless you are a place that uses a specific vendor more than others. Like, my library

only has EPSCO stuff because we have a database, because it's a school of 300 people, you know. So it's like, our only database is EPSCO and we have EBSCO eBooks. I don't need any ProQuest anything, right? So those are, those are some reasons. It's just, you know, it's bulky and it requires a lot of specialized knowledge. Like to have Primo, you need someone who knows JavaScript. Do you know Java, like, yeah, if you want to do customizations on Primo, you need to know like JavaScript and CSS and HTML. I taught myself Angular JavaScript when I, when I worked on Prima V, largely with very out-of-date, like, documentation provided by

X Libris, because their documentation is incorrect and out-of-date. Yes. And I went to the international global X-Librous conference and did a presentation about how bad their documentation is and how I had to largely, like, teach myself and why leaving documentation is good. So, yeah. So even without Israel's sucking, X-Librous is just bulky and bad. and if you don't have a dedicated, like, tech services staff of, like, 50 people,

it's probably not worth your time. And Chuck Tingle, come on the pod. Chuck Tingle, come on the pod. Chuck Tingle, come on the pod. I love reading about getting pounded to the butt. It's great. Yeah, getting pounded in the butt by my library card. It writes itself.

Should exist. Why does that not exist? I want to get pounding on the butt by my library card. It's like a great time. All right. It's all good night.