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Green Stuff World Bogus Copyright Claims


Doug Sundseth
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13 minutes ago, Dr.Bedlam said:

Now, if I start a YouTube channel reviewing Reaper product (for example,) the Fair Use Doctrine YouTube permits me to show brief clips of the product, to talk about the product, to show the product's packaging, demonstrate the product's use, and so on, for review and public discussion purposes.

 

Their platform; Their channel. Their rules. Their rule is not "Fair Use Doctrine" it is: YouTube is never sued.

 

Hence the instant takedown operating procedure.

(Which I am only re-explaining but in no way defending. (see Doug's earlier... initial? ...post))

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19 minutes ago, TGP said:

 

Their platform; Their channel. Their rules. Their rule is not "Fair Use Doctrine" it is: YouTube is never sued.

 

Hence the instant takedown operating procedure.

(Which I am only re-explaining but in no way defending. (see Doug's earlier... initial? ...post))

 

You're right as a legal and perhaps equitable matter. But there are several big problems:

  • YouTube is notoriously difficult to actually talk to unless you have a huge channel. You can send questions and protests off into the ether, but getting a real response is very difficult. (One of the minor miracles here was that YouTube was actually a bit responsive.)
  • YouTube set up a business model for themselves and hundreds (?) of thousands of content creators in which there's a lot of money on the line. In many cases, this is the primary or sole income stream for content creators (thought I don't think that was the case here). This can arguably result in a "detrimental reliance" cause of action.
  • Neither of those would be all that important, but there's no real competitor to YouTube. If you don't like their rules, you can't really find another playground that is in any way competitive. (This probably activates certain anti-trust provisions, btw, but I don't think they've really been used in litigation, though other parts of the Google empire have certainly been hit by them.)

Everything that happened when the strike was filed was entirely predictable, since it's what always happens when a notice and take-down is filed with YouTube. Here, a more legally savvy YouTuber might have filed a counter-notice, which essentially says that the poster is aware of and disputes the claims and allows the service provider protection in case of a lawsuit. But I suspect that as painful as this was for the YouTuber, the result will be overwhelmingly positive, since she is now far better known than she was before the kerfuffle.

 

But I really wish there were a meaningful competitor to YouTube. (Twitch is probably the closest, but its focus is very different.)

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1 hour ago, Dr.Bedlam said:

GSW didn't have to do it that way. They could have contacted the woman, explained the issue, and offered solutions. Instead, they went impersonal and lawyery, to the little guy's detriment. 

It really looks to me like they got some bad legal advice or misapplied good advice they had previously received.  

If it was bad advice, was it due to the competency of the lawyer, or due to differences in Spanish law vs EU and/or international law?

Or, was it something like the lawyer that helped them file the trademark told them "Now, remember, you have to vigorously defend this TM" and they saw this and simply jumped to an incorrect conclusion based on that previous advice and took action? 

 

17 hours ago, Doug Sundseth said:

My unbacked suspicion is that Vallejo just wasn't interested in the hassle so they changed their product's name.

There is a good chance that's the case.  And changing the name may not have been just because of the lawsuit - the new name may be more defensive as a trademark of their own. 

The company I used to work for got hit with a cease & desist letter for selling a product that we imported from a manufacturer in Canada because the name of that product was the same as the name of the guy's business, and he had trademarked his business name with the state of Colorado.  The Canadian manufacturer had been making it and we had been importing it for years before the guy started his business. Had the case gone to court, the manufacturer clearly could have won the case, even though they had never formally registered or claimed a trademark on it. (Yes, the business and product were in the same industry).

The new owners of the manufacturer were not interested in fighting an international trademark case, so they simply changed the name and trademarked the new name, while admitting no fault.  They sent a letter to the business owner that basically told him they were letting him have his win this time, but that he really had no trademark case because of their prior use. 

He turned around a few months later and sued another business in another state (AL I believe) for violating his trademark, and eventually lost his case because the other business stood their ground and brought up the prior usage of the Canadian manufacturer.  Wouldn't have known about that case, except for the other company's lawyers contacted us about the product we used to import, and they got filled in on the whole drama with the Canadian manufacturer. They were most appreciative.
 

23 minutes ago, Doug Sundseth said:

But I really wish there were a meaningful competitor to YouTube. (Twitch is probably the closest, but its focus is very different.)

 

Agreed. 

 

 

 

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Note that YouTube isn't subject to Fair Use; they word their contracts so they can yank your content for pretty much any reason or no reason with no liability to themselves. I'm just saying that the lady in question wasn't actually doing anything WRONG.

GSW followed sound legal doctrine. Legally their actions are unassailable. As far as decency (and PR) goes, it was a very bad idea.

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3 minutes ago, Dr.Bedlam said:

GSW followed sound legal doctrine.

 

Disagree categorically.

 

There is no sane theory on which they owned the copyright to anything in the original video. They said they did under penalty of perjury. And if they did have legal advice, their legal advisor was not competent and should be sanctioned.

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1 hour ago, Dr.Bedlam said:

Note that YouTube isn't subject to Fair Use; they word their contracts so they can yank your content for pretty much any reason or no reason with no liability to themselves. I'm just saying that the lady in question wasn't actually doing anything WRONG.

GSW followed sound legal doctrine. Legally their actions are unassailable. As far as decency (and PR) goes, it was a very bad idea.

I agree with @Doug Sundseth here - GSW filed the claim under copyright provisions, which is completely inappropriate in the case of a trademark dispute.

It would be interesting to see what would happen if GSW tried to file suit in the US against Plaid or any of the other manufacturers that use 'color shift' as a paint term, especially as Plaid holds that trademark in the US, and has done so for longer than GSW has been around.

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2 hours ago, Doug Sundseth said:

 

Disagree categorically.

 

There is no sane theory on which they owned the copyright to anything in the original video. They said they did under penalty of perjury. And if they did have legal advice, their legal advisor was not competent and should be sanctioned.

 

Not quite. 

While your statement is completely accurate, they are acting to defend a trademark they claim they have... specifically, the "colorshift" thingy. The "colorshift" thingy was in the video.

Vallejo released product that had their trademark on the bottle.

A reviewer on a public venue showed the bottle in her video.

Now, the way this trademark thing WORKS, if I claim a trademark, and someone else uses that trademark, I am responsible for challenging their use of that trademark. If I FAIL to challenge that trademark,  then anyone who is willing to stand up in court and argue that I could have but didn't can ask the court to invalidate the trademark in a variety of ways that weakens my control over it or eradicates that control altogether. Legally speaking, if I want to exert control over a given phrase, I must demonstrate PROVABLY that I went after anyone who used it inappropriately or without permission like a swarm of rabid piranha bats.

So in the specific cold hard legal sense, GSW, in the defense of their trademark, had to challenge what they saw as an "inappropriate use." They could have let it slide, probably with no consequence -- the YouTuber in question wasn't challenging their trademark or selling anything -- but I can see why a particularly rabid trademark lawyer would have said, "This must be challenged in a recordable and provable way." They took the simplest option and complained to YouTube.

Do I agree with the reasoning? Hell, no. Do I think it was the right way to handle this? Hell, no. They could have saved themselves a hell of a lot of headache with an email exchange with the lady in the video; it's equally provable in court and completely documentable, assuming she was willing to cooperate; I sure would be, rather than deal with a Cease And Desist or having YouTube come down on me.

I'm just saying I understand why they did what they did. It has basis in legal precedent and trademark law. That doesn't make it "The Right Thing To Do."

Disney's had things like this happening for years. A while back, they went after a day care center for showing "The Lion King" to their toddlers, since the video was private property legally purchased, BUT since the day care charged fees for the caretaking of toddlers, it could be interpreted that this included charging admission to see a Disney film, a thing that's not supposed to happen without the payment of royalties and the signing of contracts and the jumping through of legal hoops; technically, if I show a Disney at my house and charge you all a buck a pop for couch space, I'm breaking laws, even if I legally purchased the DVD.

Does Disney give a rat? No. They aren't concerned with losing the dollars from my couch, and less so with hassling day care centers. But anyone wishing to attack Disney's trademarks and copyrights can  use this sort of thing as a weapon in court. So Disney's gotten into the habit of being hardnosed about it. And copyright and trademark attorneys are trained to be hardnosed about it.

And considering how spurious their claim to the phrase "colorshift" is, I can see why they're being hardnosed about it. I personally think they'd have done better to come up with a more unique term to trademark, but nobody asked me.

All that being said, I must still state that GSW made a hash out of this business, and I am disinclined to do business with them because of that.

 

Edited by Dr.Bedlam
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15 minutes ago, buglips*the*goblin said:

GSW retracted their claim, publicly apologized, and the video has been reinstated.  

 

 

That is true, however I think it is safe to say that damage has been done to their brand through their ill-advised actions throughout the whole process.

 

Can they recover from the damage - probably - however if they take similar action in future then they may not recover from a second bout of this type of behaviour (and a few things that I've seen that have come up as a result of this situation make me question their business ethics more broadly)

 

Luckily for me their product is almost impossible to get here so I don't have the make the decision on whether to support them or not

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55 minutes ago, Dr.Bedlam said:

Now, the way this trademark thing WORKS, if I claim a trademark, and someone else uses that trademark, I am responsible for challenging their use of that trademark. If I FAIL to challenge that trademark,  then anyone who is willing to stand up in court and argue that I could have but didn't can ask the court to invalidate the trademark in a variety of ways that weakens my control over it or eradicates that control altogether. Legally speaking, if I want to exert control over a given phrase, I must demonstrate PROVABLY that I went after anyone who used it inappropriately or without permission like a swarm of rabid piranha bats.

 

You have to challenge anyone using your trademark. None of that happened here. No competent lawyer could possibly claim that had happened here. And you don't get to break the law to "defend your trademark". If I saw someone with an unauthorized T-shirt that had my registered mark, I would not be within my rights to go up to him, punch him in the face, rip the T-shirt off his torso and use, "I was defending my trademark" as a defense.

 

According to what they said, GSW consulted an attorney, then lied in a DMCA notice and takedown filing. That's illegal, not just unkind.

 

55 minutes ago, Dr.Bedlam said:

Disney's had things like this happening for years. A while back, they went after a day care center for showing "The Lion King" to their toddlers, since the video was private property legally purchased, BUT since the day care charged fees for the caretaking of toddlers, it could be interpreted that this included charging admission to see a Disney film, a thing that's not supposed to happen without the payment of royalties and the signing of contracts and the jumping through of legal hoops; technically, if I show a Disney at my house and charge you all a buck a pop for couch space, I'm breaking laws, even if I legally purchased the DVD.

 

 

Unlike trademarks, copyright doesn't lapse because it isn't defended and that's a purely copyright issue. The C&D is also entirely within their rights (if possibly ill-advised), since "public performance" is one of the rights specifically guaranteed in copyright law.

 

While I would consider that to be an inappropriate lawsuit, that's on the writers of the law, not Disney.

 

25 minutes ago, kristof65 said:

There are a lot of people who don't understand the difference. 

 

True enough. I literally cannot count the number of times I've tried to explain the differences between the four types of intellectual property. And if GSW hadn't claimed to have consulted an attorney, I'd be annoyed, but I'd have a bit more sympathy.

 

21 minutes ago, buglips*the*goblin said:

GSW retracted their claim, publicly apologized, and the video has been reinstated.  

 

Yes they have. But if they will lie in a legal filing (from the available evidence, I'm convinced that they have, though others could see that differently), I think it's reasonable to assume that they will lie in other parts of their business lives as well. We'll see what else shows up in the next few years; perhaps after a time I'll be more willing to countenance dealing with them.

 

2 minutes ago, ratsmitglied said:

That is true, however I think it is safe to say that damage has been done to their brand through their ill-advised actions throughout the whole process.

 

Can they recover from the damage - probably - however if they take similar action in future then they may not recover from a second bout of this type of behaviour (and a few things that I've seen that have come up as a result of this situation make me question their business ethics more broadly)

 

Memories are short and [ stuff ] Acquisition Syndrome is eternal. :poke: You might well be right about their chances for recovery. But their flurry of cease and desist letters doesn't raise my hopes much.

 

2 minutes ago, ratsmitglied said:

Luckily for me their product is almost impossible to get here so I don't have the make the decision on whether to support them or not

 

Part of the reason that I've been so vocal is that I've been very close to ordering some of their texture rollers for some time. They're a nice product and could be useful, especially with the demise of Happy Seppuku. I won't be doing that in the near future at least.

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8 minutes ago, Doug Sundseth said:

If I saw someone with an unauthorized T-shirt that had my registered mark, I would not be within my rights to go up to him, punch him in the face, rip the T-shirt off his torso and use, "I was defending my trademark" as a defense.

 

It might not hold up in court, but I'd pay real money to see that.  

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10 minutes ago, Doug Sundseth said:

They're a nice product and could be useful, especially with the demise of Happy Seppuku. I won't be doing that in the near future at least.

 

Maybe the thing to do is help HS get back into the stamping business, or convince help him to license his Happy Seppuku stamp designs to someone else. 

 

I heard/read/was told that his other business (forget what it was) was going gangbusters making lots of $$$$$$$ and it made sense to devote all hours in the day to that. 

Edited by TGP
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