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Spoiler alert: the copyright battle following Game of Thrones

16-05-2016

Few can be unaware of the TV phenomenon Game of Thrones. Inevitably, however, with great success also comes the threat of copyright theft; the series now has the dubious title of being the most pirated TV series ever. In an effort to keep the series exciting (for its paying customers), TV network producer HBO is also working to block the YouTube videos of the so-called ‘Spanish Spoiler’ – albeit for only a few days.

Since the beginning of this season of Game of Thrones, YouTuber Frikidoctor has been uploading videos with summaries of upcoming episodes of the series, including key plot twists. These videos are placed online a couple of days before a new episode broadcasts.

Frikidoctor, also known as the ‘Spanish Spoiler’, admitted in an interview with Reddit this month that he has a source on the set of the series who gives him crucial information about the different storylines before an episode is aired.

Ever since HBO became aware of the YouTube channel, the network has charged its lawyers to block each video as soon as it appears online, arguing that the videos contain content that infringes the series’ copyright.

YouTube’s DMCA take-down system (based on the American Digital Millennium Copyright Act or DMCA) provides a mechanism that enables rights holders to block videos immediately. The content is then reviewed by a specialist team to verify whether a complaint is valid. It usually takes this team a couple of days to check the content of a video.

A valid approach or abuse of the system?
HBO’s use of YouTube’s complaint system to block Frikidoctor’s videos has prompted a debate over whether such use constitutes an abuse of the DMCA and even copyright law. The Spanish Spoiler videos are uploaded a couple of days before the airing of each episode, so by simply filing a complaint each time, HBO is able to ensure each video is blocked and entered into the review system during the build-up to each show. This means that even if the reviewing team rules that HBO’s complaint is not valid, it has still been able to block the video at the crucial time.

What constitutes copyright infringement in a ‘spoiler’ video?
Copyright provides the creator of a work – for example, a book, music, a scientific publication or a work of art – to publish and to reproduce it on an exclusive basis. In other words, the creator has the sole right to exploit a work and may impose conditions on those who wish to use or reproduce the work in any way. However, depending on the jurisdiction, there are a number of exceptions to this rule; for example: the quotation right (e.g. fair use), the free collection of news, the use of a portion of the work for educational purposes and limited own (home) use.

In other words, it is possible to create a spoiler video or article which doesn’t infringement copyright law. A video that consists solely of images from a TV episode, for example, is likely to infringe HBO’s copyright; however, if the video simply recounts a story in broad terms, without the use of copyrighted images or text, then it is less likely that HBO will be able to successfully take action based on copyright. Instead, it will arguably be using YouTube’s DMCA take-down system to temporarily block videos that, may well be seeking to spoil each episode, but are doing so without infringing copyright.

Find out more about copyright