Doug Polk gets "cease and desist" from GSN lawyers ordering him to take down 17 videos

[Shizzmoney]

FYI to Druff when he plays clips in the future: be careful or the DCMA Nazis might come after PFA next

[Dan Druff]

Fortunately I don't publish on YouTube, so I can choose to ignore DMCA notices which I don't feel are legally defensible.

I will say that, in many cases, I would likely take down the material, since the gain I would get from keeping it would not be worth the hassle and legal risk, however small.

Regarding Polk, at first it was assumed that the Game Show Network had an automated content bot which was sending DMCA notices to anyone whose content it detected. However, it appears that isn't the case. This was written by SrslySirius, who works for Polk:

The automated copyright detection you speak of picked up the High Stakes Poker episodes long ago. GSN has already been collecting revenue from Doug's videos all this time. None of the stuff mentioned in this video happened through YouTube's DMCA system. This was a letter penned by GSN's director of legal affairs, sent via e-mail.

So it appears that Doug was actually threatened by their lawyers, and not just a copyright bot.

[Alvin Finklestein]

The problem comes from the definition of "fair use" -- a legal concept in the United States which allows people to reuse small portions of copyrighted works in their own works, without compensation.

Unfortunately, the actual definition of fair use is very vague. It allows for small portions of copyrighted works to be reproduced for "commentary or criticism" or "parody".

The parody portion clearly doesn't apply here. That is referring to matters such as Weird Al Yankovic's right to do a song called "Eat It" to the tune of Michael Jackson's "Beat It" without compensating Jackson.

So let's discuss "commentary or criticism", which could be Doug's only legal defense here.

Commentary and criticism must be "transformative". What is transformative? It means that the new work containing the copyrighted material must be substantially different than the material itself.

So a film reviewer playing five minutes worth of a 2-hour film during his video review is considered transformative, since the new work is a review, rather than a reproduction of an entertainment product.

Grabbing a 5-minute clip of that same movie and simply posting it on YouTube is NOT transformative. It's just a shorter version of that same copyrighted work. That would usually be considered copyright infringement, though the short length would likely not be legally actionable because it would be difficult for the studio to show losses, unless the poster gained commercially from it.

So what about Polk's activities, which involved grabbing High Stakes Poker hands and commenting upon them? Could that be considered "commentary" from a legal standpoint? Possibly, but it's not clear. On one hand, Polk is engaging in the very definition of commentary -- he's playing short clips of the program and commenting on it! However, High Stakes Poker is already a commentary show, where the viewer is shown poker hands while its announcers analyze and comment on them. Therefore, it could be argued that Polk is simply reproducing their work and substituting the existing commentary for his own. They could liken it to someone rebroadcasting portions of a Major League Baseball game, and announcing it themselves. That would still be copyright infringement.

Is the Game Show Network right or wrong in what they're doing? That's up to you to decide, but keep in mind that they are the current owners of the copyrighted works, and it is understandable how they feel Polk is commercially gaining from their material without compensating them. Recall that Polk is heavily promoting his poker training company, and has been using his videos as a tool to do so. It could be counter-argued that Polk his helping bring back interest to High Stakes Poker, but ultimately it's GSN's decision whether they feel Doug's free usage of their material is in their best interests, and they apparently feel as if it is not.

If I were Polk's attorney, I would advise him to take the material down, cease using it, and not to make a big deal over this matter.

[SrslySirius]

it is understandable how they feel Polk is commercially gaining from their material without compensating them.

Odd that you would write such a detailed opinion when you clearly did not watch the video.

[Alvin Finklestein]

it is understandable how they feel Polk is commercially gaining from their material without compensating them.

Odd that you would write such a detailed opinion when you clearly did not watch the video.

I did watch the video, but my impression was that he was saying he had posted High Stakes Poker videos, of which GSN chose the option to automatically monetize. I was of the belief these videos were separate from the ones analyzing clips. Perhaps that assumption was incorrect.

Still, it is possible that GSN decided that they were okay with having their content simply reposted on YouTube (provided they got the YouTube partner content money), but not okay with people like Doug using it for their own commercial material.

For example, if JoePokerFan99 posted a High Stakes Poker episode as-is, with the comment, "This is awesome!!! High Stakes Poker!", JoePokerFan99 wouldn't be gaining from the content in any way, provided that the monetization on YouTube went to GSN instead of him.

Doug using their content in his own videos (which are being made for commercial purposes) is probably what's getting their goat.

That's my guess here.

Also, I think there's a fair chance that someone snitched on Doug to GSN, likely one of Doug's enemies. That would explain why he is being singled out.

[MumblesBadly]

The problem comes from the definition of "fair use" -- a legal concept in the United States which allows people to reuse small portions of copyrighted works in their own works, without compensation.

Unfortunately, the actual definition of fair use is very vague. It allows for small portions of copyrighted works to be reproduced for "commentary or criticism" or "parody".

The parody portion clearly doesn't apply here. That is referring to matters such as Weird Al Yankovic's right to do a song called "Eat It" to the tune of Michael Jackson's "Beat It" without compensating Jackson.

So let's discuss "commentary or criticism", which could be Doug's only legal defense here.

Commentary and criticism must be "transformative". What is transformative? It means that the new work containing the copyrighted material must be substantially different than the material itself.

So a film reviewer playing five minutes worth of a 2-hour film during his video review is considered transformative, since the new work is a review, rather than a reproduction of an entertainment product.

Grabbing a 5-minute clip of that same movie and simply posting it on YouTube is NOT transformative. It's just a shorter version of that same copyrighted work. That would usually be considered copyright infringement, though the short length would likely not be legally actionable because it would be difficult for the studio to show losses, unless the poster gained commercially from it.

So what about Polk's activities, which involved grabbing High Stakes Poker hands and commenting upon them? Could that be considered "commentary" from a legal standpoint? Possibly, but it's not clear. On one hand, Polk is engaging in the very definition of commentary -- he's playing short clips of the program and commenting on it! However, High Stakes Poker is already a commentary show, where the viewer is shown poker hands while its announcers analyze and comment on them. Therefore, it could be argued that Polk is simply reproducing their work and substituting the existing commentary for his own. They could liken it to someone rebroadcasting portions of a Major League Baseball game, and announcing it themselves. That would still be copyright infringement.

Is the Game Show Network right or wrong in what they're doing? That's up to you to decide, but keep in mind that they are the current owners of the copyrighted works, and it is understandable how they feel Polk is commercially gaining from their material without compensating them. Recall that Polk is heavily promoting his poker training company, and has been using his videos as a tool to do so. It could be counter-argued that Polk his helping bring back interest to High Stakes Poker, but ultimately it's GSN's decision whether they feel Doug's free usage of their material is in their best interests, and they apparently feel as if it is not.

If I were Polk's attorney, I would advise him to take the material down, cease using it, and not to make a big deal over this matter.

This was my impression. If he just used stills from the videos to show the opponents, the board, etc., while providing audio commentary, that would probably fall under Fair Use, as using still images from video is transformative in itself.

[BeerAndPoker]

I haven't watched this yet but title says Doug discusses the videos being taken down and the intro states they will talk about Limon in this too.



I'm sure Doug has a bunch of these shirts but seriously don't wear the same design so often in videos.

[Dan Druff]

19:45 in that video is where he talks about Limon.

Was wondering if he would mention the PFA interview, but he doesn't.

Did I just get big timed?

He did quickly refer to the "Dog Puke" thing.

Chicago Joey is on Doug's side.

I have to admit, after hearing everything, I am too.

Limon completely freaking out over nothing.

[LarryLaffer]

yes you did