A Spanish YouTuber is leaking spoilers for season six of “Game of Thrones” several days in advance of each episode — posting videos to his channel in which he makes video “predictions” which turn out to be unerringly accurate.
Needless to say, HBO is not happy.
The premium video company is aggressively targeting the videos of Frikidoctor (also known as “Spanish Spoiler”) that contain spoilers, using YouTube’s DMCA system to file takedown demands, forcing the videos offline within hours of uploading. (Kim Renfro has a more detailed overview over on our sister site Tech Insider.)
In short — HBO is asserting that these videos are infringing on its copyright by leaking and discussing spoilers, even if the videos don’t contain any actual leaked footage.
Frikidoctor is developing a devoted fanbase on Reddit, and HBO’s actions is causing some controversy among them. Some believe that the company is “gaming the system” — abusing YouTube’s automated copyright takedown system to remove material which is embarrassing and potentially commercially damaging, but not an actual violation of its copyright.
“HBO is blatantly and maliciously abusing the DMCA request system with frivolous claims to suppress spoilers,” wrote one angry poster. “This is a big deal.”
But outraged Reddit comments aren’t sound legal guidance. What’s the truth of the matter? We reached out to a few legal experts for their perspective on HBO’s approach to spoilers.
The verdict: HBO might have a case after all.
Dr. Andres Guadamuz, senior lecturer in intellectual property law at the University of Sussex, has watched some of the Frikidoctor videos in question, and thinks HBO may be in the right: “I would agree that these may actually be infringing (although they are borderline in my opinion, and this could be argued either way).”
“Copyright protects an expression of the idea, not an idea itself, and while plot points might be an idea, the expression of that idea is protected,” he told Business Insider. “Characters, dialogue, plot twists… all of these are protected by copyright. After the Lenz v Universal case (of Prince fame), Google are under an obligation to consider fair use before removing content, but in this case I would argue that the number of fair use arguments would be limited.”
Guadamuz added: “The fact that these plot points are central to the storyline could be very important in a copyright litigation, the test for infringement is qualitative.”
Professor Lilian Edwards, who focuses on internet law at Stathclyde University, agreed that the fair use defence is debatable but suggested that HBO’s decision to use DMCA might have been motivated in part by the speed at which it can be deployed. “I wonder if there wouldn’t be a simpler line of attack there — in that if these are leaks (rather than spoilers already broadcast) there has fairly clearly been a breach of confidence (a tort) or even a breach of a non disclosure agreement (NDA — breach of contract),” she said.
“However neither of these offer as simple and effective a remedy as a DMCA takedown, which is enforced automatically by Google, ie YouTube — so probably why they have used this. If it depended only on confidence or contract I think (though I am not a US civil lawyer) than an injunction would need to be sought in a court — time consuming esp when spoilers are out..!”
Jeff Cusson, SVP of Corporate Affairs at HBO, said in a statement that “HBO aggressively protects its programming, but we find it counterproductive to publicly discuss specific anti-theft tactics.” Google did not immediately respond to a request for comment.