As of 2019, YouTube was playing host to 31 million channels, with the most popular specializing in music, entertainment and sports.
A growing number also dedicate themselves to ‘how-to’ or tutorial videos, which aim to help viewers improve their skills on everything from cookery and car maintenance to more niche pastimes such as ‘life-hacks’ and lock picking.
For one YouTuber in Brazil, the decision to help people obtain premium TV channels from illegal sources has now backfired.
Operated by Bruno Gustavo Januário, the ‘Jorge Dejorge’ channel is packed with technology-focused videos offering reviews, unboxing videos, tips and tutorials, most of which are entirely non-problematic. However, a decision to publish advice on how to obtain TV channels via pirate IPTV services attracted the attention of ABTA, the powerful Brazilian Pay TV Association.
ABTA, which represents the main cable TV and channel operators in the country, including Globosat, Sky, NBC Universal, Fox and Discovery, filed a lawsuit against Bruno Gustavo claiming that his instructional videos infringed their rights.
In his response, the channel owner described himself as an “ordinary person” with a YouTube channel and denied that he’d named any of the TV operators in his videos. In any event, he argued, they were informative in nature and did not aim to instruct people on how to break the law.
Nevertheless, in April 2018 a judge at a São Paulo court handed down an order that required hosting and search companies, including Google, to remove the videos in question and Bruno Gustavo was told to stop publishing such content in the future. Failure to comply would result in a fine equivalent to US$1,740 for each offense.
However, according to a Globo report, the judge held back from compensating the TV companies as he believed their trademarks had not been infringed.
This resulted in an appeal from both sides to the Court of Justice of São Paulo which was heard in April 2020. In its ruling, the Court found that the operator of the Jorge Dejorge channel must pay compensation to ABTA for breaching its members’ rights with his “fraudulent” videos.
The Court found that the videos improperly reproduced the channels’ trademarks, infringed their copyrights, and amounted to unfair competition against ABTA’s members.
The exact compensation amount is yet to be determined but the Court says that since the illegal content was first published in February 2017, 10% of any revenues earned by the channel since then must be handed over to the TV companies.
“It is certain the defendant benefited [financially] during the period in which he released the videos. This is because it is common knowledge that companies such as YouTube and Facebook, as well as their advertisers, remunerate members who obtain large volumes of followers and views”, the decision obtained by Globo reads.
The Jorge Dejorge operator must also pay R$50,000 (US$8,721) in compensation to the broadcasters adjusted for interest at the rate of 1% per month from the publishing of the first content in February 2017. In addition, the defendant was ordered not to publish any more content that infringes on the rights of the pay-TV stations and was told to pay the costs of the lawsuit plus attorney fees.
“We hope that large digital media companies will adopt a more responsive posture in relation to the publication of illegal content on their platforms. We are all responsible for preventing and combating illicit acts and crimes practiced on the Internet,” commented ABTA president Oscar Simões.
The matter is not over yet, however. Bruno Gustavo’s legal team say they will appeal to the Superior Court of Justice (Superior Tribunal de Justiça), the highest appellate court in Brazil, arguing that the judge in the first instance “made a more coherent assessment” in denying compensation to the TV companies.
This isn’t the first ruling of its type in Brazil. In 2017, a court convicted the operator of the Café Tecnológico YouTube channel for publishing tutorials on how to access pay-TV channels illegally. In 2018, the appeal was denied.
While this ruling is specific to Brazil, YouTube is awash with tutorials explaining how viewers can access pirate TV services all over the world.
In more recent times, savvy YouTube channel operators have been more cautious in the way these videos are presented, in particular by avoiding the inclusion of live video from the channels in question. However, the inclusion of trademarks in the form of channel logos remains commonplace and could potentially provide an avenue for future legal action.
