The Orchard Music vs FFSTV

October 22, 2014 in Vlog by

We have just made our first APPEAL via the YouTube copyright system, which opens us up to legal proceedings all thanks to the flagrant claims made by The Orchard Music in bad faith.

The Orchard Music is by FAR the worst perpetrator (in our experience) of bad faith copyright claims on YouTube. The following videos have had matches applied to them, which we have disputed and the claims have been subsequently REINSTATED:

Skylanders Trap Team Trailer:

Electronic Arts E3 2014 Press Conference:

Destiny Launch Trailer:

We have appeals ONE of the THREE bad faith reinstatements because appealing all three at once would give The Orchard Music the ability to apply three strikes to our account, effectively shutting it down. Considering their behaviour thus far, it is easy to see that as a possible scenario.

Here is an article that lists some of the worst copyright trolls including The Orchard Music:

16 responses to The Orchard Music vs FFSTV

  1. This reminds me of something I have wondered for a while: why not continue to hedge your bet with Blip?

    As a viewer, even though it means using Flash, I typically prefer it since things like their search actually work (for some reason, YouTube search seems to be useless).

    It would probably be helpful (for both you, and the rest of the internet) to avoid strengthening the content distribution monopoly represented by YouTube by continuing to diversify in such a way.

    • I’ve been thinking the same thing. The more these copyright stories come out the less I want anything to do with YouTube… yet everything I watch is available through them only. :/

    • I suspect the Blip has far less traffic than youtube and even youtube heavyweights have hard time transferring the traffic from youtube to another place (most of them have most of their content on their own website with it frequently few days in advance but even so the most of the traffic and ad revenue is still coming from Youtube).

      Having the team leaving YT to wherever will have us follow for sure (I mean … we already did) but the person that knows them only through youtube and look at VGA video because they appear in their queue will probably be lost. We reached this critical mass where for archived video (not live) YT is as close to a monopoly as you can get that ,makes the opposition not relevant or attractive anymore expect for ring situations (more lenient on certain rules such as moral censorship being probably the most prevalent so far).

      Anyway I hope the best for Fraser & Becky and sur hope that this situation will resolve for the best.

  2. This content ID system really shit the bed.

    Would it be possible to buy/rent some servers and hosts everything yourself? Could this pay itself with google adds or something?

    I think Blip is not going too well but maybe you could partner with someone else? A lot of youtubers including teamfourstar, normalboots and twobestfriends are with Screenwave Media. Not sure how that works but I don’t think it could be worse than Youtube right now.

  3. I propose all future Vlogs are added to the VGA page like this! love being able to see them on the site.

    and keep fighting the undeserved power of the copy ID system Fraser.

  4. I hope everything works out for the best Fraser. For what it’s worth I think its a load of bologna that your getting hit with all this nonsense and I hope its resolved as soon as it can be.

  5. It’s not a good thing that it has come to this point, but you picked (what I think is) the right course of action. Good luck standing up to Orchard and keep playing it smart and holding up your principles.

  6. What I don’t understand is, why hasn’t there been a class action lawsuit against YouTube about this whole debacle? Yes, they are a service provider, but they’re the ones responsible for giving money to the wrong copyright holder when a false claim occurs and penalizing producers that are rightfully contesting them. When the claim is lifted, the producer doesn’t get his money back. When a DCMA takedown notice occurs, YouTube may also refuse to comply to counter-notices and even shut down the producer’s account at its discretion because of its Terms of Service. How can any of that be legal?

    Same comment about abusive corporations in the music industry. Why hasn’t there been a class action lawsuit against some major copyright troll abusing the YouTube system?

    If it’s because nobody had the guts to do it yet, this needs to change and fast.

    • but they provide an appeals process which is a reasonable notification system i would say. Fraser states in the video that many of his appeals succeed so you would have to prove some material damage was caused by YT to a lot of people, and perhaps the only damage is the loss of earnings during the flagged period. If the YT terms and conditions explicitly mention this possibility (and I am sure they do) then you have agreed to that working contract anyway so you cannot sue for what you have signed up for.

      as for copyright trolls, their actions may be annoying but if they have legal license then the law protects them. those who do not have a fair claim and know they do not are relatively rare I get the sense of from the vlog.

      • I don’t really know if I would agree that the appeals process is “reasonable”. Based on the stuff that Frash has said in this and previous videos it seems like a real hassle and the companies making claims have far more control over the flow of these legal battles than youtube producers. Case in point, the fact that they can get your account taken down simply by issuing three strikes really limits a producer’s ability to fight back even when the law is totally on their side. It’s a messy system to say the least.

        • yes its reasonable because those companies have more protection in law and YT/Google know this. i am not trying to defend them but you have to understand their view point to understand how to live alongside them as Fraser mentions he does try to do.

          i see very little evidence beyond the fair use claim that the law is on any side but the copyright holders. the fair use test requires you to consider:

          • the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
          • the nature of the copyrighted work;
          • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
          • the effect of the use upon the potential market for or value of the copyrighted work.

          In the first instance, banners on LPs are commercialisation, and that is what is most often claimed by the strike.

          The nature of the copyrighted work is the experience of the played game – spoiled by an LP it potentially removes the reason to play the game yourself, especially on release day LPs.

          The amount of play time, especially of 100% play throughs could clearly exceed fair use.

          The last one is difficult to determine but I would suggest can be claimed if the first three are substantiated.

          • Also to claim fair use is very complicated to say the least. It very much is a case by case situation, and really there is no way Youtube can protect every single user claiming fair use, especially considering how big they are and how many video are put up on a daily basis. This has little to nothing to do with YouTube but how the law works. YouTube is protecting itself and as a company they need to. Ever since the Youtube vs. Viacom lawsuit, Youtube decided they have to protect themselves. Content ID is part of that. Sadly you will get people who abuse this and find loopholes or ways to get around the law to make a quick dollar.

            What needs to happen is the law needs to change.

            • I wasn’t even thinking about the subjective interpretation of fair use. The situation Fraser has described has been caused by an incorrect Contend ID match and an institution that doesn’t listen to disputes.

              Here’s a typical situation that has already occurred multiple times so far:
              – Megacorp uploads a piece of media to YouTube’s Content ID system
              – YouTube matches a video with this piece of media (correctly or not) and claims the video for Megacorp
              – Producer disputes claim for legitimate reasons
              – Megacorp reinstates claim
              – Producer appeals
              – Megacorp sends a DMCA takedown notice to YouTube
              – YouTube complies, plus adds a copyright strike to the producer’s account
              – Producer sends a counter-notice to YouTube
              – YouTube does not comply, claiming contractual reasons

              At this point, it’s very likely that not a single person from Megacorp or YouTube has taken the time to verify if the claim was valid in the first place. This situation forces the producer to do one of the following:
              – Sue Megacorp to prove in court that they have not infringed Megacorp’s copyright, and hope YouTube will restore the video if successful
              – Sue YouTube to prove in court that they violated the DMCA
              – Give up

              If this is not punishing the innocent before being proven guilty, I don’t know what is. As for cressk’s argument, I believe it is incorrect as beliefs in good faith and contractual obligations do not supersede the law. And I only talked about the diffusion of the video itself – I’m not even talking about where the ad revenue goes while its status is in limbo. (Hint: it’s not the producer.)

              Right now, I believe suing YouTube is the correct course of action, which is why I’m surprised it hasn’t been done already.

              • i agree the specific case of Orchard is clearly outside the bounds of a usual claim, but you did talk about a class action against YouTube which widened the debate to those making valid claims.

                Contracts can only be contracts if they are within the law so I was not suggesting they supersede the law, but the presumption has to be that YT has done its legal research before publishing their contract terms.

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