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TAKEDOWN

DMCA Mystery: Did Epic Games Send a Takedown to Itself?

Welcome to a brand new kind of whodunnit. This one has everything: an extremely popular game, a short-lived takedown, and so very many memes. The ways of the DMCA and YouTube are unknown and unknowable.

Trailers are a time-tested and proven way of getting attention for a new piece of media—movies, television, video games, whatever. If it’s a highly-anticipated or very popular title, you can get a whole bunch of free press with a trailer as everyone shares and analyzes it. And so it is unusual, in that situation, for a trailer to be officially released without every bit of it being vetted and approved. (Unusual, but not unheard of.)

And even if a company uploaded the wrong trailer to YouTube or Twitter or wherever, they could always delete it from their own account. And then, sure, use the DMCA to keep people from uploading copies. That’s what makes what happened with Fortnite so weird.

Fortnite is a staggeringly popular game. Epic Games, which makes it, put a trailer for Battle Pass Season 6 on the official Fortnite YouTube page. So far, so normal. Then it briefly vanished, with a screenshot posted to Reddit showing that the video was unavailable due to a copyright claim by … Epic Games, Inc. Of course, this touched off a wave of meme responses, although “it hurt itself in confusion” gets extra points for being a game meme being used to make fun of another game, which is also a source of many memes.

The trailer is back up, but the mystery of what happened remains. DMCA takedowns require that the notice be sent by the person who owns the material and that they believe the use of their material to be infringing. How could Fortnite be infringing on Fortnite? If there was material in there they did not own, they can’t file a DMCA notice asking for it to be taken down on that basis … they don’t own the work being infringed. And even if that was the case, it’s their channel, they can just delete the video.

If Epic Games has an automated process that just sends out takedowns for everything that matches its content, then we are seeing a brand new example of why copyright bots don’t work. Someone forgot to make sure that Epic Games’ own accounts were excluded from the search and it DMCA’d itself. That still means a bogus takedown was sent.

If the takedown was sent by someone pretending to be Epic Games, that’s also not supposed to be allowed under the DMCA.

There’s no situation where this was a valid takedown. It’s rare that wrongful takedown notices result in any consequences for the sender. They can in theory, although it may require many years of litigation. In general, there are not enough disincentives to discourage bad takedowns, including weird, mysterious takedowns like this one.

Original Title of Threatened Content: 
Fortnite Season 6 Battle Pass - Now with Pets!
Date of threat or takedown: 
October 8, 2018

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