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February 9, 2016 7:40 AM   Subscribe

A Fine Mess: How Not to Assert Your Copyright in the Youtube Age by Vlad Savov [The Verge]
A week ago, one of the more popular YouTube organizations, Fine Bros Entertainment, run by brothers Benny and Rafi Fine, announced a new scheme to license out its React brand and video format on a profit-sharing basis. Having developed a large audience through various series of reaction videos — where people are filmed as they react to watching or experiencing a new thing for the first time — they were now looking to apply the franchise model to their content. It was an offer for others to use the Fine Bros template for creating reaction videos, including series titles like Kids React and Elders React, and to ultimately be distributed and featured in front of the company’s large YouTube audience. The endeavor backfired spectacularly: partly because no one needed a template in the first place, but mostly because people felt that the Fine Bros were profiteering and aiming to exploit the creativity of others.
Previously.

Related:
- YouTubers Revolt Over Licensing of Reaction Videos. [The Verge]
The backlash to the Fine Bros' efforts has been swift and unforgiving. Their announcement video currently has nearly 240,000 thumbs down off 1.95 million views, and a subsequent video that tries to explain and clarify their intent has been slammed with 230,000 dislikes off 2.46 million views. Their unapologetic follow-up seems to indicate that the brothers believe it was simply a matter of "confusion" and poor communication, and there is some validity to their thinking. Many of the angriest reactions are conflating copyright with trademark law, and while it's true that the Fine Bros are pursuing a trademark for "React" and other titles in their series, that doesn't mean that they'll own the entire genre — which, indeed, they claim not to want to do.
- The Fine Brothers' Reaction Video Controversy, Explained. by Alex Abad-Santos [Vox]
Watching the downfall of the YouTube celebrity duo known as the Fine Brothers has been kind of like watching someone get devoured by a crocodile — someone who's kind of a jerk, whom you don't like very much, and who jumped into the crocodile-infested river of his own volition. If there is a blueprint for how to get people on the internet to hate you, Rafi and Benny Fine wrote it. Earlier this week, the brothers attempted to trademark and monetize their brand of online reaction videos (more on these in a bit) and, somehow, completely underestimated how people would react. Citizen brigades bent on stopping the brothers sprang up on Reddit. Memes making fun of their physical appearance began circulating. People made reaction videos spoofing the Fines, and the brothers' YouTube follower count hemorrhaged. The Fine Brothers had become the internet's greatest villains. And within a week, they nixed any plans of a trademark and apologized for their actions.
- Why the Fine Brothers Are the Biggest Villains on the Internet Right Now by Ruth Reader [Tech Mic]
The Fines applied for a trademark and not copyright. These are different classifications with different consequences. Trademarks are actually designed to protect the public, not creators. "So when you buy a can of Pepsi, you know you're gonna get that brown syrupy liquid — that's what it's designed to protect," media and entertainment attorney Rose Meade Hart tells Mic. "It's designed to protect me as the consumer, so I know what I'm getting because of the label on this jar." For instance, Kleenex, the tissue maker, and Xerox, the copy machine manufacturer, have trademarked their brands so that their product or services can't be confused with those of with other tissue and copier manufacturers. But again, these trademarks were granted with the public in mind — not the brands — and they apply specifically to goods and services. Plus, trademarks are incredibly hard to get and keep, says Hart.
[*Many of the original videos posted by the Fine Brothers have since been taken down, but if you search YouTube, you should be able to find re-uploads, commentary and people reacting to their videos.]
posted by Fizz (43 comments total) 10 users marked this as a favorite
 
The Fines had already filed a series of trademark applications with the US Patent and Trademark Office last summer, which included the super generic "React" along with series titles like "Lyric Breakdown." Previous to that, they’d been granted trademark registrations for "Elders React" and "Teens React" in 2013 and "Kids React" in 2012.

Wow, fuck these guys.
posted by Artw at 7:48 AM on February 9, 2016 [11 favorites]


which included the super generic "React"

I'd love to see them try to fight Facebook on that one.
posted by Itaxpica at 7:50 AM on February 9, 2016


[I only linked to their main YouTube channel page once. I tried my best to avoid sharing any of their actual videos, mostly because fuck them, I don't want to give them the potential web hits or ad revenue. The entire incident is well-documented, if anyone wants to explore their channel, they are free to do so themselves.]
posted by Fizz at 7:51 AM on February 9, 2016 [2 favorites]


the genre goes back at least as far as goatse reaction videos
posted by thelonius at 7:57 AM on February 9, 2016 [4 favorites]


I've never heard of the Fine brothers before they pulled this and I'm sure as hell not going to watch any of their videos now.
posted by Holy Zarquon's Singing Fish at 8:02 AM on February 9, 2016 [2 favorites]


If you want an idea of the outrage, search the "React related" tag on reddit's /r/Video.
posted by Catblack at 8:06 AM on February 9, 2016 [1 favorite]


As an attorney who deals with IP issues, online discussions about anything to do with copyrights, trademarks, patents, or trade secrets are beyond frustrating. Not only do most people not know even the most basic concepts, they will angrily defend their ignorance to the ends of the Earth.

MeFi is no better in this area. Whenever IP issues come up here the resulting discussions would be beyond embarrassing for the participants except they don't even know enough to be embarrassed.
posted by Sangermaine at 8:13 AM on February 9, 2016 [30 favorites]


As an attorney who deals with IP issues, online discussions about anything to do with copyrights, trademarks, patents, or trade secrets are beyond frustrating. Not only do most people not know even the most basic concepts, they will angrily defend their ignorance to the ends of the Earth.

MeFi is no better in this area. Whenever IP issues come up here the resulting discussions would be beyond embarrassing for the participants except they don't even know enough to be embarrassed.


NO COPYRIGHT INTENDED
posted by dismas at 8:15 AM on February 9, 2016 [14 favorites]


Sangermaine, not to put you on the spot, but what would be some good resources for lay people to learn about copyright?
posted by xingcat at 8:15 AM on February 9, 2016 [1 favorite]


If I've learned anything from the internet, it's that whatever Reddit is most het up about is probably A-okay, so I'm going to assume that the Fine Bros. are some fine bros.
posted by uncleozzy at 8:18 AM on February 9, 2016 [1 favorite]


their unapologetic follow-up seems to indicate that the brothers believe it was simply a matter of "confusion" and poor communication

It wasn't merely that they were unapologetic, but their body language demonstrated pretty strong contempt for the people they were supposed to be winning over. From a media studies perspective, it's interesting that their brand really did require them to release a video trying to explain themselves, even though that medium just wasn't going work for them at that time.
posted by Candleman at 8:21 AM on February 9, 2016 [3 favorites]


As is pointed out by the article on Vox, this has almost as much to do with the tools Google provides on Youtube for those claiming IP infringement as it does actual IP law. The Fine Bros have a history of abusing such tools even prior to this current cash grab, going as far as to use tools intended to combat copyright infringement to illegitimately take down a parody because it was mean to them.

It's not hard to draw a line from their stated intent to trademark and license a particular variety of video (which they've previously quite aggressively staked out as somehow completely theirs, despite it predating them by many years) to the unstated intent to start using Youtube's tools even more aggressively in this regard.
posted by tocts at 8:22 AM on February 9, 2016 [5 favorites]


If I've learned anything from the internet, it's that whatever Reddit is most het up about is probably A-okay, so I'm going to assume that the Fine Bros. are some fine bros.

That's usually a pretty solid heuristic, but this is an 'exception that makes the rule' situation - the Fine Bros have been pretty shitty about this whole thing (though, in classic Reddit fashion, their response is way outside of any reasonable scale).
posted by Itaxpica at 8:23 AM on February 9, 2016 [2 favorites]


xingcat, the Stanford University Libraries Copyright & Fair Use site has a good FAQ that explains the basics of copyright. You'll also find information on the permissions process, updates on copyright cases and articles, etc.
posted by Sangermaine at 8:23 AM on February 9, 2016 [20 favorites]


That Verge article reaches a curious conclusion about people "overreacting".
In purely legal terms, the internet overreacted to the Fine Bros’ React World proposal. It was garden variety protectionism with some overreaching copyright and trademark claims.
The reaction was totally appropriate and the only effective response to "garden variety protectionism" for the people affected. It's not like random YouTube creators can afford to hire lawyers to counter Fine Bros' lawyers.

YouTube culture is constantly living in an intellectual property grey zone. Reaction videos themselves constantly have to argue they are fair use, with using some snippet of someone else's content as the setup. Of course the members of that culture get nervous when one of its leaders starts trying to colonize the space, staking ownership claims to the commons. The filing of the trademark in particular was disgusting and would be a serious problem if the trademark were granted.

It is a problem that ordinary people don't understand IP law well. Even the difference between copyright and trademark is a mystery to most folks, and the details of fair use, etc are completely confusing. But, well, that's the world we live in. If part of that means the ignorant peasants occasionally raise their pitchforks against crumbums, it's not the worst thing.
posted by Nelson at 8:23 AM on February 9, 2016 [11 favorites]


The Fines had already shown themselves aggressive in asserting their preeminence as the inventors and keepers of reaction videos, having encouraged their followers to harass Ellen after she did a segment showing kids reacting to old technology. They’d also used YouTube’s Content ID copyright protection system to have others’ videos pulled down — which included videos of people reacting to their React videos.

I'm staying with "fuck these guys".
posted by Artw at 8:24 AM on February 9, 2016 [18 favorites]


xingcat - I can't claim Sangermaine's expertise but if you want a book once you get through the Stanford FAQ you might like either of W. F. Patry's two books Moral Panics and the Copyright Wars and How to Fix Copyright. They are the best popular explanations of how copyright has worked and how it in theory could work I know of. (Patry was former copyright counsel to the US House of Reps, advisor to the Register of Copyrights, Senior Copyright Counsel for Google.)
posted by Wretch729 at 8:29 AM on February 9, 2016 [4 favorites]


the Fine Bros have been pretty shitty about this whole thing (though, in classic Reddit fashion, their response is way outside of any reasonable scale)

Oh yeah, to be clear, I was mostly kidding. The Ellen situation, etc. paints a pretty rotten picture of these guys. But the Reddit pitchfork mob is repulsive enough to swing the needle in the other direction a bit.
posted by uncleozzy at 8:29 AM on February 9, 2016


Whenever IP issues come up here the resulting discussions would be beyond embarrassing for the participants except they don't even know enough to be embarrassed.

have you considered that maybe US intellectual "property" law is out of step with what society values and has evolved mainly to serve very powerful and greedy interests?
but then it would be pretty difficult to do your job...

the irony is that Google is sitting back and profiting from all of this and trying to leverage YouTube's infringing business model to muscle into the music biz among other things...
posted by ennui.bz at 8:32 AM on February 9, 2016 [10 favorites]


have you considered that maybe US intellectual "property" law is out of step with what society values and has evolved mainly to serve very powerful and greedy interests?

I'll bring that up at the next meeting of the Secret Masters.
posted by Sangermaine at 8:38 AM on February 9, 2016 [20 favorites]


It's pretty clear that these guys want to be able to bludgeon their opposition with quasi-legal arguments, not uphold any useful aspect of copyright law, so I'm not entirely sure why you're going to bat for them.
posted by Artw at 8:40 AM on February 9, 2016 [1 favorite]


I gotta say, whenever I see "Elders React" I expect it to be "Elders React to a zinc chloride solution" and I wonder what terrible experiments they are performing on Youtube.
posted by selfnoise at 8:41 AM on February 9, 2016 [3 favorites]


For a more neutral take on the matter, here's Hank Green's explanation, and also the short version.
posted by Shmuel510 at 8:54 AM on February 9, 2016 [2 favorites]


Considering that Hank Green identifies as a friend of the Fine Bros, and also soft-sells abusing Content ID / DMCA takedowns by the Fine Bros as them having "reacted poorly", that does not seem to qualify as a neutral take.
posted by tocts at 8:57 AM on February 9, 2016 [9 favorites]


The people who really hate the Fine Brothers assumed that they would use this trademark to prevent other people from making videos of people reacting to things. That isn’t possible. However, the trademark could potentially be used to take down videos that use the word “React” in the title if the Fine Brothers felt that the content was too similar to their own.

Except, "videos of people reacting to things" is exactly the content that the Fines appear to have decided in the past is "too similar to their own," so....
posted by Holy Zarquon's Singing Fish at 8:57 AM on February 9, 2016 [4 favorites]


Remember this video of kids reacting to old technology?

Fine Bros started having kids react to old technology three years later.

Prior to that, they'd mostly been reacting to viral videos, which, well, copyright hypocrisy much? Even putting aside those videos are other people's content (I even seem to remember a few early React videos getting takedowns), that format is just 2G1C reaction videos for a general audience. And they sure as heck didn't invent those.

I liked them right up until this whole kerfuffle, and even now I'm much more embarrassed for them than outraged. But the amount of hubris it takes to say THIS IS OUR ORIGINAL IDEA WHICH WE OWN AND WHEN YOU DO IT WE SHOULD GET A PIECE -- even in the form of "Come join our site and you can post your reaction videos legally!" -- when in fact their whole venture is built on other people's content and ideas is just...ugh. Come back down to earth, boys.

If their apology video was, "Sorry! That announcement wasn't supposed to get posted until April 1," this would have gone away immediately.
posted by Sys Rq at 9:20 AM on February 9, 2016 [5 favorites]


please enjoy my new viral video, "People reacting to Fine Brothers takedown notices"
posted by boo_radley at 9:27 AM on February 9, 2016 [4 favorites]


Wait, that Vox link. Why is this described as a tire fire?
posted by qcubed at 9:31 AM on February 9, 2016 [1 favorite]


Thank you so much for the resources! I have opinions (totally unfounded) on copyright and want to educate myself further on the subject. (I'll still try to keep from making unfounded opinions public on the internet, but we all know that's a hard thing to do for anyone.)
posted by xingcat at 10:02 AM on February 9, 2016 [1 favorite]


It's cost them nearly half a million subscribers so far.
posted by Auz at 10:08 AM on February 9, 2016 [1 favorite]


I've seen react videos offered up to me on YouTube and consistently responded with visceral hatred for the very concept. Why the hell would I want to watch random strangers react to shit for me? Obviously, it's a thing, because I've seen Japanese shows that trade heavily in the hosts/guests reacting to what's going on. It's just not remotely something I'm interested in watching.

Anyway, I'm glad my gut reaction proved correct in this case.
posted by Mr.Encyclopedia at 10:14 AM on February 9, 2016 [1 favorite]


Watch gen-Xers react to the very notion of reaction and unboxing videos!
posted by sandettie light vessel automatic at 10:56 AM on February 9, 2016 [1 favorite]


I've seen react videos offered up to me on YouTube and consistently responded with visceral hatred for the very concept.

WALL-E is reading this and crying.
posted by Artw at 10:57 AM on February 9, 2016 [3 favorites]


Watch gen-Xers react to the very notion of reaction and unboxing videos!

The splinter in our eye bred react.
posted by thelonius at 11:14 AM on February 9, 2016


Artw: "WALL-E is reading this and crying."

(for those without context, I assume Artw is referring to this, previously)
posted by Riki tiki at 11:39 AM on February 9, 2016 [3 favorites]


I wouldn't be too harsh on the Fine Bros for using quasi-legal arguments to assert ownership of IP; it's not exactly an unknown tactic in the corporate world, although it can be finessed through the related schemes of having bigger lawyers, more money or their supersets, lobbying and regulatory capture. Crass cupidity is almost de rigeur in such cases - rather, the brothers' crime is rank amateurism coupled with being small enough to punish.

I have seen much worse, flying under much more famous colours, but the pick of the bunch tends to be locked away under settlement NDAs. If you want to learn a lot about IP law without actually going to law school, just create IP for anyone with people on staff who have.
posted by Devonian at 11:41 AM on February 9, 2016 [1 favorite]


Sangermaine: Whenever IP issues come up here the resulting discussions would be beyond embarrassing for the participants except they don't even know enough to be embarrassed.

ennui.bz: have you considered that maybe US intellectual "property" law is out of step with what society values and has evolved mainly to serve very powerful and greedy interests?

There's certainly a debate that can be had about whether current US copyright law goes too far in protecting "powerful and greedy interests."

There's certainly a debate that can be had about whether current US trademark law goes too far in protecting "powerful and greedy interests."

There's certainly a debate that can be had about whether current US patent law goes too far in protecting "powerful and greedy interests."

Those are all entirely separate issues from people who don't understand the differences between copyright, trademark, and patents. Unless someone is seriously suggesting that two or all three of those be collapsed into a single category of IP — and I have not seen any such suggestions, here or elsewhere — the vague invocation of "powerful and greedy interests" has nothing to do with the confusion among the three classes by the general populace.

I find it particularly dismaying that even after Savov calls out the common confusion among them in online discourse, the headline writer still refers to "copyright" in the headline, when the matter under discussion is primarily about trademark.
posted by DevilsAdvocate at 11:54 AM on February 9, 2016 [6 favorites]


while it's true that the Fine Bros are pursuing a trademark for "React" and other titles in their series, that doesn't mean that they'll own the entire genre

So you would be perfectly safe making a video where someone reacts to something, (also known as a reaction video) but they would like to stop you from titling said video "Someone Reacts to Something." I would have thought that this is too generic to work as a trademark. It's just a description of the contents of the video.
posted by RobotHero at 12:04 PM on February 9, 2016 [5 favorites]


the headline writer still refers to "copyright" in the headline, when the matter under discussion is primarily about trademark

The issue is that they're slinging out DMCA takedowns like they were free Frizbees. Guess what that C stands for.
posted by Sys Rq at 12:16 PM on February 9, 2016 [4 favorites]


(No one, but no one has an issue with their trademarking the name of their videos per se, except that it's too generic. That is a distant second to the takedowns.)
posted by Sys Rq at 12:21 PM on February 9, 2016


Here’s my Off-the-Cuff Response™ to @hankgreen and Sangermaine.

To be sure, many have weighed in on these topics without proper understanding of copyright and trademark. I haven’t seen a lot of claims that what FBE was trying to do was illegal,¹ so the primary result of that misunderstanding regards what FBE can do once they’ve legally acquired these protections.

And yes, the exact rules of trademark vs. copyright are reasonably well-established, and there’s quite a lot of existing precedent on the matter. Therefore, as someone informed about the laws, you might dismiss others’ concerns that (for example) trademarking “React” would allow them to legally take down any reaction video.

But in my opinion, that’s missing the forest for the scale-model-of-trees-from-a-different-forest.

The “scale model” part of the analogy is the problem that any legal conflict in the real world involves costs and risks. If FBE files a false takedown claim against you, you may not be able to fight back even if the laws and precedent are clearly in your favor. In a way, the widespread misunderstanding of IP rights is more damning to FBE due to their history of this type of abuse.

The “different forest” part of the metaphor is that we’re not just dealing with the U.S. legal system here. Just to begin with, U.S. protections become murkier on an international publishing platform like YouTube. Since it’s a U.S. company they’re not that much murkier, but it adds to the uncertainty and risks I described above.

More importantly though, YouTube is its own standalone ecosystem, with its own terms of use, quirks, and loopholes on top of the already-complex legal tangles. This video (warning: potentially-triggering profanity) offers an interesting—if lopsided and sometimes obnoxious—case study of how clearly-illegal behavior can thrive in the YouTube’s blind spots. If you can make a couple hundred dollars off a video before the system figures it out, and suffer no lasting penalties² for doing so, then the abstract IP protections of the law are just that: abstract.

Again, FBE has a documented history (“overblown” though it may be) of trying to overstep the protections it already has. Even if you can’t spell copywrite, it’s appropriate to be concerned that they’d overstep further if granted further protections.

Like any large internet community, YouTube has to be vigilant about resisting abuses. MetaFilter has a $5 barrier to entry, powerful community pressure, and moderation-by-fiat. Slashdot has a complex system of user “karma” derived from simple comment ratings. Reddit has significant voting for individual comments, combined with a hierarchy of moderation for the site and each subreddit. Wikipedia has spam-detecting bots and its amazing and problematic priesthood of core editors. And these are all sites where there isn’t widespread financial incentive for abuse!

People make their living from YouTube, and for all its problems there’s a lot of amazing art that only exists because that was possible. While the overall response to FBE’s actions may seem exaggerated, I personally think it’s because controversy and shaming are among very few checks or balances in this crazy system. I really honestly wish that wasn’t the case, but I’d rather that than a system completely unbalanced in favor of malicious users.

¹ Most of those I have seen are similar to Hank’s own analysis, that “‘React’... would be a VERY difficult trademark to defend in court.”
² Unless someone in another country tries to sue you in small claims court, I guess?
posted by Riki tiki at 1:00 PM on February 9, 2016 [5 favorites]


In the context of Youtube, where part of the point is anyone can post videos, when someone sees a video titled "___ Reacts to ___" are they expecting it to be a Fine Bros production? Or are they just expecting it to be "a reaction video?"

If you watch one vid by the Fine Bros and want to watch more by them, you can easily click on the channel link for more videos by them. And the name of whoever posted the video always appears under the title and thumbnail, so if if someone really was trying to pass themself off as the Fine Bros, wouldn't they post as finebroz or something? On the other hand, I didn't remember the name "Fine Bros" until this latest kerfuffle. I couldn't have named them, I would have said, "those people that make the kids react to things videos."


And that is a good point that DMCA takedowns are intended for copyright infringement, not trademark infringement. I think if Google has any streamlined process for reporting trademark infringement, it isn't going to focus on not on video titles, it's going to focus on Channels and usernames, because those are literally representing the source of the video.
posted by RobotHero at 1:05 PM on February 9, 2016


"Well, yes Mr Fine, we do operate a nuclear reactor ... Yes, we put a short video of the reactor on YouTube. We thought people would be interested in seeing what goes on, but it's just a bunch of dials, mostly ... Yes, of course I admit it, why wouldn't I? ... I'm sorry, Mr Fine, we provide a significant part of the energy needs of an entire state, we're certainly not going to shut down just because you say so. No, we're not going to give you any money. Why should a power station pay you, just because you've made a lot of videos of tedious people pretending to look at interesting things?"
posted by Grangousier at 2:03 AM on February 10, 2016 [2 favorites]


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