We've freed Cookie's Bustle from copyright hell
gamehistory.orgDetailed story, very helpful. You nerd baited me, so I went ahead and read 17 U.S.C. § 512(f).
(f) Misrepresentations.—Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Generally automated take down services are not my favorite business - the DMCA has strong penalties for infringement baked in, and one reason those penalties exist is that there is a strong enforcement clause that the takedown notices are made in good faith. There is no way these were made in good faith based on the facts described.
The word "knowingly" makes getting even with takedown trolls almost impossible because you have to prove their intent.
Knowingly isn’t intent. It’s knowledge. Both the sender (this UK service company) and the troll fit knowingly for almost any definition I can imagine in this story. The UK sender triggered it on a second notice, after the museum had responded. The troll knows they do not own the copyright.
I think bringing this in a jurisdiction with sensible judges - Northern Cal, SDNY, Delaware, does not look impossible to me. And, it only takes one win to radically change the economics of these trolls — it seems worth doing, is all I’m saying!
You still have to prove it in court, and it's already hard enough to prove seemingly obvious things, such as that a seller didn't deliver a product.
Missing detail about DMCA here is that you can file a counter-notice. You can reply and say "this is fair use" or "I own this", and the service provider will 1) forward the notice, 2) restore the content unless the claimed copyright owner sues.
It's not perfect, and the system can still be abused. But a DMCA takedown isn't necessarily an impossible burden that requires the recipient to do sleuthing to determine the real copyright owner. If they own it, they are good. If it's reasonably fair use, say so. Sending a DMCA takedown is easy, but you can flip it back just as easily. The hard/expensive part is filing/defending a lawsuit, which the complainant must initiate, which then reveals their identity, establishes liability for false claims, and carries a burden of proof.
The counter-notice requires you to provide your details to the filer.
The process is often abused just to gain this information, with the complainant dropping the whole thing after receiving these details.
> The counter-notice requires you to provide your details to the filer.
I didn't have to do this when I received a bogus takedown notice for a YouTube video.
But I'm not in the US and I don't know if YouTube's process varies by jurisdiction.
> It’s the safest option, because at a certain scale, it is impractical for large platforms to evaluate the validity of every single takedown request they receive.
It has long seemed crazy to me that, as a society, we’ve allowed large companies to argue that they can’t do basic things that their smaller competitors have to. Provide customer support. Assess legal challenges. Et cetera. Should we not rather say: you have the resources, use them! This is a cost of getting big. You have economies of scale in other areas, don’t try to evade responsibility here.
> Assess legal challenges.
There will be nothing but pain and frustration if you ask corporations to try and supplant the courts. Copyright law is old and does not make provisions for the modern era.
You get a copyright when you create a work and it does not require any kind of registration. Establishing who has a copyright, if the work is copyrightable in the first place, or if an alleged infringement is fair use or not are thorny questions where two reasonable people might disagree.
That's why the law requires platforms to preemptively take down media if someone complains. It's because copyright, in the US and most of the world, is actually impossible to determine for private parties and minor works. You need a court and two sets of lawyers to figure out who actually did what. As the article says:
> The status of RODIK and the ownership of its rights are currently unclear. This makes it likely that Cookie’s Bustle is an “orphan work”, a copyrighted work where the owner is either unknown or cannot be located.
Copyright reforms requiring registration could fix this, but I don't think things are going to be calm enough to allow it for decades. I get that it's trendy to complain about big companies getting this wrong, but it's stupid to blame them for trying to survive under the current rules.
Copyright is a special privilege that usually monopolizes certain information.
It has been recognized by early Georgists as monopolistic and thus problematic.
That's why you see rent seeking behaviors and abuses. It's not new.
Amen to that. Larger companies should face more requirements than small ones. And if they can't meet them, great! That just means they can't be large. Companies should be smaller on average than they currently are.
There is nothing that large companies want more than a straightforward, procedural list of requirements on how to comply with copyright law.
(ok maybe there are several thousand things, but you get what I mean)
None of this would have happened if there were any real world consequences to sending fraudulent DMCA takedowns.
So no one has discovered the motivation of this person? They must have spent a lot of money to engage in this behavior.
Personally I believe that whoever is doing the copyright abuse either is the original developer of the game or has some sort of relationship with them. Even though the "international copyright registration" site has no real authority, the documents they submitted include high-res 3D renders of models from the game, design documents, and source code commented in Japanese, none of which were publicly available prior to the copyright "submission". I don't think it's just some random crazy person. It's true that they're behaving in a strange way and utilizing shady overseas institutions, but the owner of Rodik is listed in the Panama Papers as having an offshore company in the Cayman Islands ( https://offshoreleaks.icij.org/nodes/74594 ) so that fits his MO.
As for motivation, in Japan there's much less of a cultural norm around sharing information publicly compared to the West. It's much more "if I have this thing and you don't, and I don't know you, why should I give it to you?" Some people will even get annoyed with you if you follow them on Twitter and you don't know them, or if you link to their website without asking them first. With that context, I don't think there needs to be much of a motivation beyond "people are posting videos and copies of my game online and I don't want them to".
Of course whoever is doing this doesn't seem to want to make themselves known publicly besides all the takedown notices, so I doubt we'll ever conclusively find out who they are. Much of what was being taken down is valid fair use, so even if it is someone associated with the original developer I don't really feel sorry for them getting their automated takedown request powers taken away.
>Personally I believe that whoever is doing the copyright abuse either is the original developer of the game or has some sort of relationship with them. Even though the "international copyright registration" site has no real authority, the documents they submitted include high-res 3D renders of models from the game, design documents, and source code commented in Japanese, none of which were publicly available prior to the copyright "submission".
Eh I am a bit of a collector and this line of thinking would let me establish copyright for a ton of games I have some precious treasures from.
Also I know a guy who worked for Sega and Nintendo for a while who is still sitting on a stack of design docs from his time in both, and he definitely doesn't own the IP for any of their games.
I suspect this person has located or inherited these items and is trying to establish copyright in the same way that Craig Wright is trying to pass himself off as Satoshi.
It's definitely all circumstantial evidence, but from all the recent stuff about Cookie's Bustle we know that whoever it is:
a) Is willing to at least tell the UK government that he's Keisuke Harigai (see this UK trademark registration: https://trademarks.ipo.gov.uk/ipo-tmcase/page/Results/1/UK00... )
b) Is comfortable with registering companies in shady tax havens and knows his way around international IP registration/enforcement
c) Has a bunch of private data related to Cookie's Bustle's development
d) Is unwilling to make any sort of public statement beyond sending takedown notices
Meanwhile, Keisuke Harigai:
a) Is Keisuke Harigai
b) Runs a company out of the Cayman Islands
c) Would have access to all data related to Cookie's Bustle's development because he ran Rodik
d) Has not made any sort of statement related to Cookie's Bustle since 2001 ( https://web.archive.org/web/20010725131942/http://www.idevga... ) despite people attempting to contact him after the takedowns started
Obviously nothing concrete but I think he's the likeliest candidate.
The UK Filing is probably the most interesting. However, its hard to unravel the mail forwarder. If a mail forwarder let you establish a forward in someone elses name it might be an easy way to pretend to be someone else for the purposes of UK Trademarks.
That said, could also just be convenient for filing outside of japan, japanese street addresses are notorious.
The most convincing argument in favor of Harigai is why would anyone believe there is money to be made there. Its not like sending takedown notices is a renewable source of income.
Even if someone was making a movie about it, the secrecy doesnt make a lot of sense. The guy could clear so much up with just an email.
>Would have access to all data related to Cookie's Bustle's development because he ran Rodik
Just a few years ago, the son of one of the original Metal Fatigue developers found old nightly backups and handed them over to Nightdive. I just find this to be a pretty weak element of the argument. The person with the strongest claim, using the weakest methods to establish that claim doesnt make sense to me.
The most plausible explanation, based on the facts so far provided, is that it is Harigai, and he is not happy with how the game/company turned out and does not want to be reminded about it anymore.
In fact they just spent a few thousand dollars according to the article. But they cost the museum probably 200k+ in time and legal fees - asymmetric copyright warfare.
But that can't be their motivation, because the museum was only targeted by coincidence.
Most people are unwilling to spend a few thousand dollars on a project that accomplishes nothing other than costing them a few thousand dollars. So we're curious what Brandon White was thinking.
I think the theory was he had a rare copy and wanted to drive the price of it up.
That's hard to reconcile with actions like issuing DMCA takedowns on videos of the game (or even Discord messages which mention it). If fewer people know a game exists, there's less of a market for copies of it.
> Most people are unwilling to spend a few thousand dollars on a project that accomplishes nothing other than costing them a few thousand dollars. So we're curious what Brandon White was thinking.
1) You vastly underestimate the persistence of Internet trolls with too much time and money. It doesn't take many; it only takes one.
2) This could be someone testing the seams so that they can sell their services on more important targets.
They could also be mentally unwell. I've known people like this who the Internet massively empowers with its asymmetric abilities and its anonymity. This person might have unlimited free time to conduct their campaigns.
Ask any court clerk about the unending filings they get from disturbed individuals.
Not to mention you know who (rhymes with bloatus)