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Tuesday, 2 February 2016

Editorial: The Fine Bros Problem (and Youtube's Other, Bigger Problems)

Hey, guys, Not Really Unprecedented Anymore But At Least Somewhat Unusual second post of the day. This isn't going to be a regular thing, but I wanted to do a short post on this, and it didn't really seem like it was fair to have it take up a slot in the schedule - since, after all, people read this blog for my opinions on entertainment, not trademark law. They would read a law blog for that.

Also, since this is a Youtube-themed editorial, I may as well plug myself quickly, so here's my channel. Right, self-promotion over, let's go.

Editorial: The Fine Bros Problem
(And Youtube's Other, Bigger Problems.)

Hey, guys. So, anyone who follows me on tumblr, or on my Youtube's twitter, will have seen me taking great pleasure in poking fun at the Fine Brothers lately, but depending on how up to date you are on Youtube shenanigans, or if you're even interested in them at all, you might not know why.

So, the Fine Brothers are two Youtubers who do '[X Group] reacts to [Z Thing]' videos, where they basically show some subset of society ('elders' and children are pretty frequent ones) reacting to some manner of pop cultural phenomenon and suchlike. Not to my taste, but a lot of people do enjoy them, they have a truly staggering amount of subscribers, and there have been people who have riffed off their work by doing '[Y] reacts to [X Group] reacts to [Z Thing]' thing and suchlike. It's good harmless fun, or at least, it was. 

A few days ago, it came to light that the Fine Brothers had applied for (and been approved for) trademarks on the following: 'Elders react'; 'kids react'; 'celebrities react'; 'adults react'; 'parents react'; 'do they know it?'; 'kids vs food'; 'lyric breakdown'; 'people v. technology'; 'try not to smile or laugh'; and, of course, of course, 'react.'

This is a problem for a whole slew of reasons: It might seem very open to abuse already, since they've essentially trademarked a common word along with a whole bunch of other things, but trademarks aren't copyrights, and they cover a much broader area - for example, you can be sued for something which is 'confusing similar', since trademarks are meant to be used for iconic images and logos, which essentially means that the Fine Brothers have created a legal situation where they could feasibly take somebody to court for showing a video of an old person having an emotional reaction. After all, their videos have old people having emotional reactions! That's confusingly similar, right!

Whether they would win is another matter altogether, but often just the threat of court action is enough to arm-twist people into doing what you want, and even if it wasn't, a court case could incur massive fees that the Fine Brothers might be able to pay, but the people they'd be suing probably wouldn't.

And make no mistake, they would have sued. They issued a plethora of Cease and Desist orders, as well as taking advantage of Youtube's copyright claim system - a system which will be talking about very shortly.

They also did this:

Yes, that's right. They encouraged their fans to spam the facebook page of a major US television show because they had the audacity to show children reacting to things. Just in case you thought 'well, I'm sure they wouldn't try to chase up any of these trademarks, it's probably just their lawyer doing what lawyers do' - yes they would. They have done so already.

What was this all in aid of? Well, the Fine Brothers announced that they would be licensing, er, reactions. Yes, you too can now have the privilege to pay them to react to things in a video. I know, it's exciting. Try to contain yourself, as any outburst of excitement will technically be a reaction and might incur a lawsuit.

Predictably, the internet backlash was huge. In the space of a few days, they have lost literally hundreds of thousands of subscribers, along with losing the confidence of their sponsors, and having to do damage control against a gigantic PR disaster. 

Their most recent attempt at damage control was an apology in which they somehow managed not to accept any blame, insisting that their intentions were pure and that it was just that they didn't see how this system they set up might be abused, completely missing the fact that the system they set up was an abuse - of trademark laws, of Youtube, and of Fair Use laws, since after all, they use copyrighted content in their videos.

Insisting that it was all Youtube's automated system - and we are still going to talk about - they pledged to rescind all of their trademarks and trademark applications and discontinue their licensing scheme. 

Which, yes, is good - but what we're seeing here is really only the latest extension of an ongoing trend, one we saw on a much bigger scale not long ago, when Sony tried to trademark 'Let's Play'. As Youtube grows and gains more content creators, there are going to be people who, in essence, attempt to take control of that for personal gain. The Fine Brothers were some of those people, but they weren't the first, and they won't be the last.

And Youtube doesn't help with that, something that has become all too apparent in the past few weeks. Recently, many, many Youtubers, small and large, have been hit with copyright claims, resulting in videos being removed, monetisation rights being taken away, and video lengths being curtailed - all of which can be absolutely devastating to a small business.

Probably the most high profile of these was Channel Awesome, and I strongly suggest watching Doug Walker's videos on it, which I will link at the bottom of this editorial, but they were certainly not the only ones. 

What was coming out of this is that while Youtube's automatic algorithm was finding videos protected under Fair Use and targeting them for copyright claims, there was almost no way to actually challenge those copyright claims. Pages for issuing challenges were broken, filling out forms would only brook a 'you missed information out that we need' even when it was blatantly false, complaints were met with evasion, and attempts to speak with a human being were brushed off or ignored outright.

The only thing that seems to be effective is controversy, as was the case with the Fine Brothers. That's a problem, because to be honest, Youtube's management being so very, very concerned with currying favour with massive companies and so very apathetic towards its own content creators, who it profits off of, is one of the reasons why people like Sony and the Fine Brothers think they can pull this nonsense. Is Youtube's management, who should be the first people in line to defend Fair Use and push back against attempts to carve out these massive trademarks, going to do anything about it? Of course not.

So, long story short, that's what's been afoot at Youtube lately, and it's worth people talking about it, and making your dissatisfaction with this kind of behaviour known, if only because if there's one thing we're learning from this, it's that the only thing viewing audiences and content creators have in their favour are numbers and the ability to generate controversy.

I'm lucky in that a) My channel is tiny and thus goes totally unnoticed through all of this, but it's still worthwhile, I think, to talk about.

So, that's a thing. Here are some links:

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