[SOLVED] Ericsson slammed me with a Copyright Strike on a Teardown video, help!?

[SilverSolder]

Just to be clear, there is no copyright infringement here anyway. Copyright, trademarks, and patents are different things, and the only one they are even actually sorta claiming ("detailed product information") would fall under patent protection.

This is correct, and the Erricson lawyers will know this.
You are being strong armed by a bunch of bullies acting illegally, tell them to F off.

How do you tell them to F off, though.  The whole system is stacked against you.

[EEVblog]

Just to be clear, there is no copyright infringement here anyway. Copyright, trademarks, and patents are different things, and the only one they are even actually sorta claiming ("detailed product information") would fall under patent protection.

This is correct, and the Erricson lawyers will know this.
You are being strong armed by a bunch of bullies acting illegally, tell them to F off.

How do you tell them to F off, though.  The whole system is stacked against you.

Start with making a public video for his 4k subscribers.

[chickenHeadKnob]

It is an absolute standard tactic for lawyers to intentionally conflate copywrite with patent law. They are lying.
For those that haven’t read it before, Richard Stallman's article contain clearly written and composed thoughts on this.:
https://www.gnu.org/philosophy/not-ipr.en.html

From the article.
In practice, nearly all general statements you encounter that are formulated using “intellectual property” will be false. For instance, you'll see claims that “its” purpose is to “promote innovation”, but that only fits patent law and perhaps plant variety monopolies. Copyright law is not concerned with innovation; a pop song or novel is copyrighted even if there is nothing innovative about it. Trademark law is not concerned with innovation; if I start a tea store and call it “rms tea”, that would be a solid trademark even if I sell the same teas in the same way as everyone else. Trade secret law is not concerned with innovation, except tangentially; my list of tea customers would be a trade secret with nothing to do with innovation.

[magic]

This is really a problem of a few semi-monopolistic companies (Youtube, eBay, Amazon and the like) sitting on so much of communications and actual trade/distribution...   that they have ended up with disproportionate power to ban legitimate activity for arbitrary/abusive reasons, and there doesn't seem to be any reasonable recourse for ordinary citizens / small business people.

DMCA is not a whim of YouTube. Every website operating in the US would take it down.

There we go, this is the garbage you are dealing with:
https://www.dmca.com/faq/What-is-a-DMCA-Counter-Notice

I'm under impression that the video will stay down even if you submit a "counter notice" and then Ericsson demonstrates within 10 days that they are suing you to take it down, regardless of whether the lawsuit has any merit or ever comes to any conclusion. Welcome to America, I guess

About your only chance of winning this is to gather a mob with torches and pitchforks and some lawyers before filing the counter notice or "kindly" asking Ericsson to reconsider their claim. Or be ready to threaten them with your own suit for abuse. Maybe EFF would care?

[madsbarnkob]

Thank you all for the references and definitions of the various subjects.

Things I could try

- Make a video about the claim to give Ericsson the publicity they are asking for.
- Contact EFF with all the details and ask for advice. Best would be a legally correct written statement to use in a counterfile
- Contact Ericsson CEO, far shot, but straight to the top. He describes himself as "engineer by heart" on linkedin.
- Report a compliance concern through Ericssons own channel ("Other persons than employees, such as suppliers, customers and other partners involved with Ericsson, may report suspected violations of laws or the Code of Business Ethics to the local operations manager or in accordance with locally established procedure.")
- Contact the senior legal group counselor directly, but I guess there is no leverage to gain there.

Big deal ! Just remove the video and go on with your life. What is so special in it that may worth a fight.

It is removed, as well as other Ericsson videos. I did not want to risk channel closure just for that, there is nothing special about those videos. It is their wild, vague and broad claim that made me ask.

I suppose you could also ask YouTube to consider if this notice is even formally valid without any kind of specific claim of what's wrong with your video, though I'm not sure if DMCA cares about such things.

There is no way to contact youtube, other than filing counter claim, which opens the whole legal, court, lawyers and fee package that they threaten with.

isn't it a simple as telling Youtube you don't believe it is violating copyright and why, e.g. fair use and the the claimant has a short period to convince Youtube they are actually serious about it?

There is no way to contact youtube in these matters, except filing a counterclaim. There is no support on legal matters and you are left on your own against the claimant.

I found a way to submit a ticket about copyright claims on videos, its just burried deep down into their support/help section and is no easy find. I tried that as well.

There is only three things I can do:
1) Accept the strike and remove all Ericsson content in fear of getting youtube channel closed forever.

Your channel cannot be shut down for Copyright claims.
There is no mechanism in Youtube to do that, Copyright claims are not community guidelines strikes against your channel.

Copyright strikes may affect your ability to monetize. In addition, if your live stream is removed for copyright, your access to live streaming will be restricted for 90 days.

If you get 3 copyright strikes:

Your account, along with any associated channels, is subject to termination.
All the videos uploaded to your account will be removed.
You can't create new channels.

[EEVblog]

This is really a problem of a few semi-monopolistic companies (Youtube, eBay, Amazon and the like) sitting on so much of communications and actual trade/distribution...   that they have ended up with disproportionate power to ban legitimate activity for arbitrary/abusive reasons, and there doesn't seem to be any reasonable recourse for ordinary citizens / small business people.

DMCA is not a whim of YouTube. Every website operating in the US would take it down.

There we go, this is the garbage you are dealing with:
https://www.dmca.com/faq/What-is-a-DMCA-Counter-Notice

I'm under impression that the video will stay down even if you submit a "counter notice" and then Ericsson demonstrates within 10 days that they are suing you to take it down, regardless of whether the lawsuit has any merit or ever comes to any conclusion. Welcome to America, I guess

And IIRC if you counternotice and they don't respond, you automatically win.

[EEVblog]

- Contact the senior legal group counselor directly, but I guess there is no leverage to gain there.

Wrong. I have threatened the legal council of a company (Lily Drones) before about a false Trademark claim citing all the legal references and case law to back it up. They backed down knowing full well they put in an illegal claim.

[EEVblog]

I got the contact information on a senior group legal counselor at Ericsson, I will contact that person and talk in details about "Patents, Copyrights/Trademarks or Trade Secrets" that they base this on. From a viewpoint that there must be a mistake. I am not going offensive at first, that leads nowhere.

Please let us know how it goes. If you get no reply I'll do a video calling them out on it.
Also, contact several of the Youtube lawyers, they do videos about this stuff.
https://www.youtube.com/channel/UCzGiDDKdphJ0GFvEd82WfYQ
https://www.youtube.com/channel/UCpa-Zb0ZcQjTCPP1Dx_1M8Q
https://www.youtube.com/user/IanCorzine
https://www.youtube.com/user/ljfrench009

And make sure you have a backup video uploaded somewhere else it can't be touched, like LBRY, so that people can watch it for reference.
Every Youtuber should be auto backing up videos on LBRY and Bitchute at a minimum.

[Kinkless Tetrode]

...

They slammed a copyright strike on a teardown video of a RBS3202 Base station for cell towers, with a extremely vague reason: "This videoclip include detailed information of the product - Ericsson RBS3202 - which belong to an area where our company holds many IPR rights"
I am in doubt would hold up in court, but I got little to no knowledge about that subject and I got no time or money to spend on a possible lawsuit. 

There is only three things I can do:
1) Accept the strike and remove all Ericsson content in fear of getting youtube channel closed forever.
2) Contact Ericsson directly, I got a contact email with the strike, but what should I write them? (Clearly they just wanted the video gone)
3) Counter-file the strike and that can possible lead to a court case, legal action etc. Which is such a serious step that there basically is no choice for a small youtube channel to go against a international company.

...

Of course, the best course of action is to pass this annoyance off to your lawyer.  But since so very few of us have a lawyer available, if you wish to pursue the matter, the first thing to do is choice #2; contact Ericsson and ask them exactly what intellectual property is being infringed by your video.  This is what your lawyer would do first anyway.

Reply to them, by e-mail (and by registered post if you like, but e-mail is enough).  Be courteous, but firm, and ask that Ericsson point out, specifically and in detail, what intellectual property rights are being infringed by your video.  Emphasize that their claim, "This videoclip include detailed information of the product - Ericsson RBS3202 - which belong to an area where our company holds many IPR rights", is inherently vague and indeterminate and such claim cannot withstand any legal challenge under intellectual property law in the United States or in the European Union.  See what they say, then you can make a move after that.

There is too little information at this point and this is just speculation, but:

Their claim can't be for patent infringement.  A (US) patent is a grant of the right to exclude others from making, using, offering for sale, selling or importing the invention. So, unless your video does one or more of these things, there is no patent infringement.

Their claim can't be for trademark infringement (in the US).  You are not using the Ericsson trademark in your course of business, nor are you taking any actions that would lead, or confuse, others to believe that your video is associated with Ericsson in anyway.  If you are not saying anything negative or slanderous about the product, then they cannot claim tarnishment of their mark.  So, if your video does no such things, there is no trademark infringement.

The US First-Sale Doctrine is not relevant since you, as the owner, are not reselling or distributing their product.

This leaves copyright infringement as the most likely possibility.  But it is unknown exactly what copyrighted material is allegedly being infringed.  Are they claiming infringement of their manual?, schematics?, PCB board designs?  It may be enough for them that an image of their schematic is shown in the video, but until you hear from Ericsson you just don't know.

For US copyright infringement there would likely be, 17 U.S.C. § 107, the Fair Use Doctrine, available to you:  https://www.copyright.gov/title17/92chap1.html#107
[...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.]  While the Fair Use Doctrine exception to copyright infringement looks encouraging as a defense, there are four important factors that would need to be evaluated in your specific case.  No conclusion can be drawn until you hear specifically what Ericsson is complaining about.

Given the above, you may have greater or lesser rights and defenses if this matter were to be dealt with in the EU, so please keep that in mind.  I wish you the best of luck in dealing with them.

[EEVblog]

- Contact the senior legal group counselor directly, but I guess there is no leverage to gain there.

Wrong. I have threatened the legal council of a company (Lily Drones) before about a false Trademark claim citing all the legal references and case law to back it up. They backed down knowing full well they put in an illegal claim.

FYI, on this case, I shot and uploaded a video and threatened to release it (for starters) if they didn't remove their illegal claim. The claims was retracted within hours.

[magic]

And IIRC if you counternotice and they don't respond, you automatically win.

That's my impression too, but you don't know how crazy/dumb/stubborn their lawyers are. Filing a counter notice right away is the "war" option which has a potential to drag on for years, so IMO better have the pitchforks and lawyers prepared if you want to go there.

I would like to have at least an assessment from a competent lawyer knowledgeable in the theory and actual practice of copyright lawsuits in electronics about what exactly Ericsson might attempt to do and what their chances are. Also how much retaliation you can get if they lose, which might be useful in motivating them to retreat.

[tooki]

This is really a problem of a few semi-monopolistic companies (Youtube, eBay, Amazon and the like) sitting on so much of communications and actual trade/distribution...   that they have ended up with disproportionate power to ban legitimate activity for arbitrary/abusive reasons, and there doesn't seem to be any reasonable recourse for ordinary citizens / small business people.

DMCA is not a whim of YouTube. Every website operating in the US would take it down.

There we go, this is the garbage you are dealing with:
https://www.dmca.com/faq/What-is-a-DMCA-Counter-Notice

I'm under impression that the video will stay down even if you submit a "counter notice" and then Ericsson demonstrates within 10 days that they are suing you to take it down, regardless of whether the lawsuit has any merit or ever comes to any conclusion. Welcome to America, I guess

About your only chance of winning this is to gather a mob with torches and pitchforks and some lawyers before filing the counter notice or "kindly" asking Ericsson to reconsider their claim. Or be ready to threaten them with your own suit for abuse. Maybe EFF would care?

The issue, as I see it, is that there is per se no copyright violation, since copyright is about the right to make copies of a copyrighted work. Creating your own documentation about an object does not violate copyright, since you're not copying a copyrighted work, but creating a new one. It's not a patent infringement, since you're not making an unauthorized copy of the object itself. And it's not a trademark violation, nor is it a trade secret violation, since you're not party to a confidentiality agreement (or other applicable contract, like an employment contract).

As such, any DMCA claim is fraudulent per se.

[iMo]

..Just like the rights-to-repair movement, I fail to see the ask-for-permissions, to do with my own property as I see fit..

FYI - from legal point of view it does not matter whether the product in your video has been taken off a dirty scrapyard for free, or you bought it off ebay for $10, or purchased directly from the manufacturer for $130k with 5years warranty. The IPRs do not get transferred to you, you do not own them. The IPRs are still with the owner, and are usually formulated in a form allowing lawyers to claim anything.
And mind the lawyers do like to claim the same way as we do like to watch the teardown videos

[wraper]

FYI - from legal point of view it does not matter whether the product in your video has been taken off a dirty scrapyard for free, or you bought it off ebay for $10, or purchased directly from the manufacturer for $130k with 5years warranty. The IPRs do not get transferred to you, you do not own them. The IPRs are still with the owner, and are usually formulated in a form allowing lawyers to claim anything.
And mind the lawyers do like to claim the same way as we do like to watch the teardown videos

Could you explain how showing the product violates any intellectual property rights?

[magic]

The issue, as I see it, is that there is per se no copyright violation, since copyright is about the right to make copies of a copyrighted work. Creating your own documentation about an object does not violate copyright, since you're not copying a copyrighted work, but creating a new one.

It's arguable what constitutes a copy. For certain media, like painting or music performance, your own audiovisual "documentation" of the work would likely be considered a derived work and require authorization.

I really don't think this should apply to teardown / reverse engineering videos, because in this case the video is not even close in function and utility to the real thing, but they are free to argue any position they want. If there are no clear legislative guidelines (probably) and no similar suit happened yet (maybe), they are also free to become the fist to try and find out. They may even try it despite knowing they will lose, if they think you won't sue for damages if they lose but OTOH have some "metrics" to meet in reducing the spread of their "proprietary knowledge" online, which seems to be their actual motivation.

[tooki]

..Just like the rights-to-repair movement, I fail to see the ask-for-permissions, to do with my own property as I see fit..

FYI - from legal point of view it does not matter whether the product in your video has been taken off a dirty scrapyard for free, or you bought it off ebay for $10, or purchased directly from the manufacturer for $130k with 5years warranty. The IPRs do not get transferred to you, you do not own them. The IPRs are still with the owner, and are usually formulated in a form allowing lawyers to claim anything.
And mind the lawyers do like to claim the same way as we do like to watch the teardown videos

You don't get it. You seem to think an IP owner has unrestricted rights over all use of anything they claim to be IP.

I already explained in my reply above why NO IP right applies here, and so have others. But since you're not getting it, let's try again:

1. It's not copyright violation, because he's not copying a copyrighted creative work (like a text, photograph, or video) – he is describing an object in his possession. As long as he is using his own words in creating this description, it's not a copyright violation.*

2. It's not patent violation because he isn't manufacturing devices using the patented designs. (Sharing a patented design is NOT a violation, only MAKING THINGS with the patented design is!)

3. It's not trademark violation because he's at no point representing himself as being the manufacturer.

4. And it's not a violation of trade secrets, because he's not party to any kind of contract that would create such confidentiality. Confidentiality does not extend to a buyer of an object!!!



*For example, you cannot copyright a recipe in the abstract. The particular wording in a given cookbook is copyrighted and cannot be copied verbatim, but the information about the ingredients used and how to use them is not protected. So I could write my own cookbook where I describe the exact same dish, using the exact same ingredients, amounts, and procedure, and as long as I use my own words to explain it, there is no copyright violation. (This is why restaurants and food manufacturers go to insane lengths to keep their recipes/formulas secret.) In other knowledge domains, we decided that being able to protect the idea itself, and not the specific wording, is important, and that's what a patent is. That's why a pharmaceutical company can patent a drug, so nobody else can sell it, even if they know how to make it. But not everything is patentable, and even if it is patentable, it doesn't mean I can't describe it. I could write a book with instructions on how to make every patented drug on the market, and as long as I used my own words, that would not violate copyright. And the patents wouldn't be violated unless I attempted to make and sell one of those drugs.

[iMo]

Could you explain how showing the product violates any intellectual property rights?

You will certainly get the answers when you start the Case with the IPR owner.

[tooki]

The issue, as I see it, is that there is per se no copyright violation, since copyright is about the right to make copies of a copyrighted work. Creating your own documentation about an object does not violate copyright, since you're not copying a copyrighted work, but creating a new one.

It's arguable what constitutes a copy. For certain media, like painting or music performance, your own audiovisual "documentation" of the work would likely be considered a derived work and require authorization.

Yes, that's true, though I consider that to be a flaw in copyright law, insofar as the laws lean excessively toward the copyright holder. (For example, I don't think photos of sculptures should constitute copyright violations, since photos, no matter how detailed, cannot replace experiencing the physical sculpture.)

But this cell tower amplifier is not a "creative work", it's a product, so copyright isn't the issue. Nor is it a patent violation, since the OP produced documentation, not an amplifier itself.

I really don't think this should apply to teardown / reverse engineering videos, because in this case the video is not even close in function and utility to the real thing, but they are free to argue any position they want. If there are no clear legislative guidelines (probably) and no similar suit happened yet (maybe), they are also free to become the fist to try and find out. They may even try it despite knowing they will lose, if they think you won't sue for damages if they lose but OTOH have some "metrics" to meet in reducing the spread of their "proprietary knowledge" online, which seems to be their actual motivation.

While IANAL, I'm pretty sure that this is an area where IP law is generally very well established, with ample case law by precedent. The news industry could not exist if even just reporting about others' intellectual property were illegal. (And you know that companies tried HARD to stop things from being published, and lost.) There have also been recent court cases about whether software APIs can be copyrighted or not. So far, the law has treated APIs as non-copyrightable and non-patentable, such that anyone can write software to work with an API, regardless of permission, and that one can write documentation about the API as well (hence all the unauthorized books on how to program this-or-that language or API). But there has been no definitive (Supreme Court level) case law on APIs, whereas with physical objects, that kind of case law was established long ago, which is why anyone can write a book on how to use or fix something, or make items that interact with a physical object, as long as they don't violate patents. (For example, established case law is why I could make and sell aftermarket auto parts.)

[wraper]

Could you explain how showing the product violates any intellectual property rights?

You will certainly get the answers when you start the Case with the IPR owner.

They cannot possibly win in court. The only way they can screw you is that you won't be able to financially afford legal process.

[tooki]

Could you explain how showing the product violates any intellectual property rights?

You will certainly get the answers when you start the Case with the IPR owner.

Well, you get the IP owner's claims (i.e. wishful thinking) as to what violations are occurring, but that in no way guarantees that any violations have actually occurred.

The fact is, and this is well established case law, that once you sell a product, you cannot stop people from describing it, even in levels of detail you'd like to keep secret, because that's not an intellectual property right you ever had to begin with!

Big companies simply rely on the fact that they can afford legal battles that individuals and small companies cannot.

[ebastler]

Could you explain how showing the product violates any intellectual property rights?

Agree, I can't see how patent rights would cover that at all. One can infringe the patent by making or selling the patented technology, or using it commercially (without having obtained use rights, e.g. by buying a unit from the patent holder). But disseminating information about the technology -- even offering training commercially -- does not constitute an infringement to my knowledge. Standard disclaimer: I am not a lawyer.

One potential caveat: The limitations of "induced infringement" are less clear to me. If you tell people "Here's a great way to implement XYZ, I encourage you to use this technique in your commercial product", without pointing out that XYZ is covered by patents owned by a 3rd party -- could that be construed as induced infringement?

[EEVblog]

Could you explain how showing the product violates any intellectual property rights?

Agree, I can't see how patent rights would cover that at all. One can infringe the patent by making or selling the patented technology, or using it commercially (without having obtained use rights, e.g. by buying a unit from the patent holder).

And even if it was covered under Trademark protection, that means nothing, as they have still knowingly filed a fraudulent Copyright claim, and that's actually a crime.
I would point this out to them.

[iMo]

Could you explain how showing the product violates any intellectual property rights?

Agree, I can't see how patent rights would cover that at all. One can infringe the patent by making or selling the patented technology, or using it commercially (without having obtained use rights, e.g. by buying a unit from the patent holder).

And even if it was covered under Trademark protection, that means nothing, as they have still knowingly filed a fraudulent Copyright claim, and that's actually a crime.
I would point this out to them.

You cannot argue to the other party they should stop claiming against you because you think they allegedly committed a crime by claiming you 
You may file a suit against them because of their alleged crime, but that will be the second Case, independent from the first Case.

IMHO - nobody here is an expert in IPR laws, and even a lawyer. What I was always advised by experienced lawyers in past the best you can do is to avoid, at any cost, any legal disputes or strikes or Cases.

[magic]

But this cell tower amplifier is not a "creative work", it's a product, so copyright isn't the issue. Nor is it a patent violation, since the OP produced documentation, not an amplifier itself.

A number of surprising things have been made to be "creative works", like software itself (even if not software APIs) and AFAIK circuit board designs too. Post a high-res pic of a PCB and technically it's a copy of a protected work in a different medium. Now, the copy has little practical use and is in no way a substitute or competitor to the real thing, and fair use provisions apply for the purpose of review and critique, but that's for the courts to decide

[SilverSolder]

This is really a problem of a few semi-monopolistic companies (Youtube, eBay, Amazon and the like) sitting on so much of communications and actual trade/distribution...   that they have ended up with disproportionate power to ban legitimate activity for arbitrary/abusive reasons, and there doesn't seem to be any reasonable recourse for ordinary citizens / small business people.

DMCA is not a whim of YouTube. Every website operating in the US would take it down.

There we go, this is the garbage you are dealing with:
https://www.dmca.com/faq/What-is-a-DMCA-Counter-Notice

I'm under impression that the video will stay down even if you submit a "counter notice" and then Ericsson demonstrates within 10 days that they are suing you to take it down, regardless of whether the lawsuit has any merit or ever comes to any conclusion. Welcome to America, I guess

About your only chance of winning this is to gather a mob with torches and pitchforks and some lawyers before filing the counter notice or "kindly" asking Ericsson to reconsider their claim. Or be ready to threaten them with your own suit for abuse. Maybe EFF would care?

That whole situation is total BS, though, isn't it.   Protecting intellectual property rights is one thing,  corporations using the rules to "cheat" with no real practical right to reply is another.