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chromatic9 · Sep 15, 2017

Maximo said:
https://www.youtube.com/watch?v=ah7LYxysuJ8

Pewdiepie did a 13 minute video.

I can sympathise with youtube's three strike limit. I'm all for supporting the copyright but it would just take two more devs to sink his account. If you've done tens or hundreds of lets plays you just need three devs to gang up on you.

If a dev issues a takedown I think the videos should go offline and the uploader gets chance to decide to delete them before the takedown is enforced or better yet the dev/pub just message the uploader saying a DMCA take down is coming if you don't remove them as your permission has been revoked. If someone steps out of line they should be at least notified.

The other parts, well he completely misses the fact the copyright is there to protect the IP. If the copyright owner just doesn't want their product to be used by someone publicly then that is what it's there for as well. He says at the end of the video the takedown was "nothing to do with copyright", it had everything to do with copyright

A board game can be different every time just like a multiplayer video game, you can adlib all over it but the board game is still under copyright and being played as intended by the makers just like your multiplayer.

You had permission, now you don't, it's not retroactive pulled, it's been updated. Therefore the videos can no longer have any new views. Nothing changes the last two years, you had the permission then, you both earned your money and press and now your permission has ended.

Soul of the Beast · Sep 15, 2017

Yeah, and rightfully so.

Evolution of Metal · Sep 15, 2017

Maximo said:
Alt account? He gave 2 sources one from The Video Game Attorney the one who helped H3H3 defend themselves in court and another which contradicts what he said that is not "multiple" I sure as hell wouldn't agree he's done much research or at least shown his findings in the video itself. Your simply agreeing with what he said believing they don't have a leg to stand on because they didn't do it for 'copyright reasons' it doesn't matter because it simply doesn't fall under fair use as far as we know, the law could change and involve in court yes but right now the DMCA Is legal.
If he bought a license to use for his videos then yes he would have a much better legal grounds but as far as I'm aware and the few attorneys I have followed that almost exclusively do YouTube copyright issues say Sean is in the legal right as the law states no need to shoot the messenger.

I have not formed an opinion, I have summed up some of PDP points from the video. Multiple is more than one. We can both agree that he hasn't listed all of his sources, but his comments mentioned a plural number of sources. Listing and discussing all the sources wouldn't have changed his conclusion about it being an untested nature of LP legality so nobody can say for sure.

Your description of the video does not match its contents, people who don't watch the video will be misinformed by that comment. I don't believe you could have misinterpreted the video as PDP not understanding the law and rambling.

TheEndOfItAll · Sep 15, 2017

The premise here is incorrect. The reasoning is simple. You are using their content. THAT is reason enough. If you are using it in some way which directly or indirectly benefits then, then they will be okay with it. If not, then you maybe be taken down.

It is about using the content in a manner that its creator is okay with. It's also nothing new. DMCA just gives an easier path to takedown.

James Scott · Sep 15, 2017

chromatic9 said:
I can sympathise with youtube's three strike limit. I'm all for supporting the copyright but it would just take two more devs to sink his account. If you've done tens or hundreds of lets plays you just need three devs to gang up on you.

If a dev issues a takedown I think the videos should go offline and the uploader gets chance to decide to delete them before the takedown is enforced or better yet the dev/pub just message the uploader saying a DMCA take down is coming if you don't remove them as your permission has been revoked. If someone steps out of line they should be at least notified.

The other parts, well he completely misses the fact the copyright is there to protect the IP. If the copyright owner just doesn't want their product to be used by someone publicly then that is what it's there for as well. He says at the end of the video the takedown was "nothing to do with copyright", it had everything to do with copyright

A board game can be different every time just like a multiplayer video game, you can adlib all over it but the board game is still under copyright and being played as intended by the makers just like your multiplayer.

You had permission, now you don't, it's not retroactive pulled, it's been updated. Therefore the videos can no longer have any new views. Nothing changes the last two years, you had the permission then, you both earned your money and press and now your permission has ended.

You can work in almost any industry for decades and get fired for less than what PDP has done.

FyreWulff · Sep 15, 2017

chromatic9 said:
I can sympathise with youtube's three strike limit. I'm all for supporting the copyright but it would just take two more devs to sink his account. If you've done tens or hundreds of lets plays you just need three devs to gang up on you.

3 strikes rule doesn't apply to MCNs and PDP

Ozigizo · Sep 15, 2017

spineduke said:
http://steamcommunity.com/app/242800/discussions/0/810938810874945823/
https://www.popehat.com/2014/11/11/...at-reviewer-jim-sterling-gets-fair-use-wrong/
https://www.gamingonpc.com/general-...ician-blackmails-youtubers-with-dmca-strikes/
https://www.polygon.com/2015/7/30/9...dependent-youtube-channel-hostage-war-thunder
http://massivelyop.com/2017/05/22/w...mes-criticism-on-youtube-in-three-easy-steps/

Some examples - i've been following these issues for a long time. Just don't take my criticism of the DMCA as some sort of tacit endorsement of PDPs comments. The guy is awful and needs to get booted off the web. I just don't agree with the mechanisms used as a lot of bad actors have weaponized it for far less noble reasons.

Maybe I should have been more clear. Most of these were cases of reviews, which are clear cut fair use cases. These are not let's plays.

And the case with the composer never went to court, so it's moot. That has more to do with Google's system being shit, not the DMCAs themselves. If you're angry about that one, be angry that YouTube uses an automated system to issue them with little oversight unless multiple DMCAs are filed by the same user (which happened in this case.) Again, this has little to do with publishers and developers issuing them themselves to let's plays.

Anung · Sep 15, 2017

Maximo said:
https://www.youtube.com/watch?v=ah7LYxysuJ8

Pewdiepie did a 13 minute video on the DMCA/Copyright issue about Firewatch..maybe worth a new thread? Basically doesn't understand the copyright law and just rambles about it without seemingly doing much research on the matter sticking to his own personal opinion thinking his Let's Plays are fine.

I know Felix probably wants to muddy the waters and change the discussion about what he did by any means necessary but if I was any LP Content Creator I would seriously tell him to fuck off trying to force this issue.

KyanMehwulfe · Sep 15, 2017

It's a fair point to say, 'PDP shut up, let's leave this in the gray area.'

But were a legal case ever going to rule in favour of a LP, this one in particular probably would have better chances than most.

If you look at implied-in-fact contract, it requires the defendant "to establish the existence of an implied in fact contract, it is necessary to show: an unambiguous offer, unambiguous acceptance, mutual intent to be bound, and consideration. However, these elements may be established by the conduct of the parties rather than through express written or oral agreements."

That would be more difficult for a brand new game where the dev had a 'no LP' policy from day 1. But in this case, you have:
- LPs were unambiguously expressed to be allowed in written form officially for 2 years
- LPs also unambiguously expressed through action rather than written or oral agreement
- and, most importantly, the dev admitting they probably received Consideration from Felix's LPs

Then you throw in that the dev stated the strike had nothing to do with copyright, which creates a problem for implied-in-fact contract when you have that contract with multiple entities. If you it can established for all LPers, it would be so for Felix, too -- no picking and choosing. And that be revoking it for 1 person you're actually in breach. (Creating another problem.)

All that said, I'm not saying the case would win. It'd be a difficult win to be sure. But it would have a lot better chance of established implied-in-fact contract than other cases where the implied action and consideration is not as unambiguously stated as with the case of the Firewatch devs.

But then this which in turn would force the devs to either allow LPer for everyone or ban them from day 1 (the new potential problem -- you could ruin it for everyone from day 1). But if that's the case, I'd imagine you'd probably see a lot of devs strike a different tune about LPs if they were forced to either explicitly allow them or explicitly disallow them from the start because of said considering that the Firewatch tweet even references.

Most importantly, implied-in-fact contract could be argued alongside Fair Use because if you establish implied-in-fact contract, especially the consideration (e.g. the Firewatch dev just tweeting they probably benefited from PDP) it could help strengthen the Fair Use point on whether the market value of original item is hurt or not. If implied-in-fact consideration could be established, then the LP would not be infringing the devs ability exploit their original work or its market value.

Uhyve · Sep 15, 2017

chromatic9 said:
You had permission, now you don't, it's not retroactive pulled, it's been updated. Therefore the videos can no longer have any new views. Nothing changes the last two years, you had the permission then, you both earned your money and press and now your permission has ended.

Agreed. Kinda feel like we're at the point where Youtube needs to start working on some sort of built in licensing system. DMCA claims shouldn't be a devs only recourse in this sort of case.

If Let's Plays were regulated as part of Youtube, publishers/developers could out in for their games (still allowing for fair use in the case of reviews or documentary style videos). And if there was problematic Youtubers, they could block those creators from the licence. As a bonus, non-problematic let's players would feel like they're safe from undue copyright strikes.

In this sort of system Santo Campo could withdraw PDPs license and the video would just be removed, since it's not a review and would have gone through this licensing system.

atomsk · Sep 15, 2017

Nanashrew said:
Only time I've seen Nintendo issue a take down was for a Kirby soundtrack and it was more a strike on the channel and not a DMCA, so the user had to take them down. It had just come out and was purchasable. Older stuff, they generally don't care about and I'm sure they also don't care much anymore about the Kirby soundtrack now seeing as I can find the OST to listen to on YouTube these days.

Everything else is is content ID so you're not gaining money off their work without permission. It's main flaw is YouTube in general and how YouTube handles content ID and how it can't differentiate between anything.

Circa 2015:

Nintendo is targeting speedrunners and modders in a new round of YouTube copyright claims, issuing takedown requests to users who post footage from modified Super Mario World levels.

"As part of its most recent round of copyright claims, Nintendo instead opted to delete targeted videos entirely."

Nitpicker_Red · Sep 15, 2017

My takeaway from PDP's video is that he isn't going to file a counter-DMCA claim and he is not going to court.
Also, his part on contacting him echoes what I wrote earlier:

Nitpicker_Red said:
It's only a legal issue if PDP wants to counter the DMCA takedown right?
Naïvely, I'm sure they can come to an understanding (in a future case): them not sending PDP any review copies, and asking directly/publicly PDP to remove all his previous videos from their company if he complies, without having to come to DMCA. He can't refuse due to his current position. And it would even have a greater psychological effect on him if he had to do it on his own accord than being forced by DMCA.

While DMCA is the easiest/quickest way to solve the issue of not wanting someone to cover your game, it's not the only one or the one with the less friction.

Unless the goal is explicitly to take the channel down by giving it 3 copyright strikes, you usually can contact a channel if you don't want to be associated with it, and ask them to remove all the videos. If they don't comply, you can use a DMCA takedown, at everyone's risk.

SeeNoWeevil · Sep 15, 2017

I'm curious how this works when platform providers like Sony provide the streaming/upload tools themselves. Do devs have to agree that content pushed in this way is fair use? I mean, they have the option to set a flag to block streaming. Seems like a really messy situation that a user could get sued because they used a feature built into the console.

mugurumakensei · Sep 15, 2017

James Scott said:
I meant the funding. GoFund me with a push from a ton of other YouTubers including the biggest one on the platform should easily trounce a small indie studio

The funding wouldn't be enough. The developers can get any halfway decent lawyer that would work on contingency cause it'd be a guaranteed win. At which point, they could counter sue PDP for legal fees.

CannonFodder52 · Sep 15, 2017

Eh, that new PDP video is just going to add to the campaign of dog pilling the review score of Firewatch on the Steam store.

Budi · Sep 15, 2017

CannonFodder52 said:
Eh, that new PDP video is just going to add to the campaign of dog pilling the review score of Firewatch on the Steam store.

Yay Steam reviews, well atleast this way people get their voices heard! So great and very important. Really glad to see reviews used as they are intended, to vent your personal gripes against the devs/pub.

chrominance · Sep 15, 2017

KyanMehwulfe said:
That would be more difficult for a brand new game where the dev had a 'no LP' policy from day 1. But in this case, you have:
- LPs were unambiguously expressed to be allowed in written form officially for 2 years
- LPs also unambiguously expressed through action rather than written or oral agreement
- and, most importantly, the dev admitting they probably received Consideration from Felix's LPs

Caveat: I am not a lawyer, I just like talking shit on the internet, Take with a mountain of salt.

I'm not sure the bolded matters here. It would depend on the legal definition of "consideration." I assume here that Campo Santo did not grant the legal right to make videos based on Firewatch in exchange for monetary compensation from PDP, even if it seems likely that Campo Santo benefited from the higher profile the game received from his videos. In fact, it's not clear that Campo Santo granted PDP or anyone else the right to make videos in exchange for any consideration at all, since Campo Santo did not list any requirements for obtaining those rights; they were offered freely.

I could see a potential argument that says Campo Santo granting those rights to anyone carried with it an implicit consideration that everyone posting videos is essentially doing free marketing for the game, which benefits Campo Santo. That seems really spurious, though, especially since the consideration would be fairly ill-defined in that case--Campo Santo benefits from some unknown and unspecified amount of marketing effort directed at some unknown audience.

But again, I'm not a lawyer and have no case law or legal statute to quote. So I might be completely 100% full of shit without realizing it.

FyreWulff · Sep 15, 2017

SeeNoWeevil said:
I'm curious how this works when platform providers like Sony provide the streaming/upload tools themselves. Do devs have to agree that content pushed in this way is fair use? I mean, they have the option to set a flag to block streaming. Seems like a really messy situation that a user could get sued because they used a feature built into the console.

They don't. Recording is local by default and doesn't imply you have the rights to distribute the video publically via and upload.

You can't even stream Rock Band 4 via Mixer on the One because it's flagged as not recordable, because Harmonix can't give you the right to upload all those songs. On PS4 it would let you stream, but it wouldn't play the song audio - just the crowd/effects noises. It plays everything now, but you're basically on your own for copyright strikes.

There's other games where if they have an in-game radio or something like that, when it's captured out to the recording function, the radio music isn't in the recording.

Temeculan3000 · Sep 15, 2017

I was discussing this in another thread but had to stop to keep it from going off topic.

I have two questions that may have already been raised in this thread:

1. Did PDP have an explicit license to stream Firewatch? If so, and it was revoked by Campo Santo, should they first have requested he remove the videos rather than go straight to the DMCA take-down request?

2. My second question is if PDPs Firewatch videos were not monetized, and fell clearly within Fair Use, would it be wrong of Campo Santo to issue DMCA takedown requests on it?

FyreWulff · Sep 15, 2017

Temeculan3000 said:
I was discussing this in another thread but had to stop to keep it from going off topic.

I have two questions that may have already been raised in this thread:

1. Did PDP have an explicit license to stream Firewatch? If so, and it was revoked by Campo Santo, should they first have requested he remove the videos rather than go straight to the DMCA take-down request?

2. My second question is if PDPs Firewatch videos were not monetized, and fell clearly within Fair Use, would it be wrong of Campo Santo to issue DMCA takedown requests on it?

1. No

2. If it was fair use it would be wrong

Temeculan3000 · Sep 15, 2017

FyreWulff said:
1. No

thanks, just wanted to be sure

FyreWulff said:
2. If it was fair use it would be wrong

So it really comes down to two questions:

1. Do LP's constitute fair use? I am guessing a case would need to go to court to really determine that.

2. If the dev has admitted they issued a DMCA takedown request for a reason other than infringement (even if infringement could be argued) is that not a proper use of the DMCA?

Armaros · Sep 15, 2017

Temeculan3000 said:
thanks, just wanted to be sure

So it really comes down to two questions:

1. Do LP's constitute fair use? I am guessing a case would need to go to court to really determine that.

2. If the dev has admitted they issued a DMCA takedown request for a reason other than infringement (even if infringement could be argued) is that not a proper use of the DMCA?

DMCA is enforcement of digital copyright. Besides violating fair use or existing contracts, the copyright holders can do whatever.

Temeculan3000 · Sep 15, 2017

Armaros said:
DMCA is enforcement of digital copyright. Besides violating fair use or existing contracts, the copyright holders can do whatever.

Ok my question is more of a moral or philosophical one, not a legal one. I agree their actions were legal, unless a court case determines that LPs are fair use.

My question is more about if the actions are hypocritical or not.

Say for example you believe recreational marijuana should be legalized. Would it be hypocritical of you to report someone you don't like for smoking marijuana, even though you think they really shouldn't get punished for that, but wish the punish them because of other things they have done?

collige · Sep 15, 2017

Temeculan3000 said:
I was discussing this in another thread but had to stop to keep it from going off topic.

I have two questions that may have already been raised in this thread:

1. Did PDP have an explicit license to stream Firewatch? If so, and it was revoked by Campo Santo, should they first have requested he remove the videos rather than go straight to the DMCA take-down request?

2. My second question is if PDPs Firewatch videos were not monetized, and fell clearly within Fair Use, would it be wrong of Campo Santo to issue DMCA takedown requests on it?

1. No
2. Yes and if it was fair use, he would legally be able to monetize the vid too since he owns the copyright on his own content. Youtube's shitty Content ID system might flag it, but that's another matter entirely.

KyanMehwulfe · Sep 15, 2017

chrominance said:
Caveat: I am not a lawyer, I just like talking shit on the internet, Take with a mountain of salt.

I'm not sure the bolded matters here. It would depend on the legal definition of "consideration." I assume here that Campo Santo did not grant the legal right to make videos based on Firewatch in exchange for monetary compensation from PDP, even if it seems likely that Campo Santo benefited from the higher profile the game received from his videos. In fact, it's not clear that Campo Santo granted PDP or anyone else the right to make videos in exchange for any consideration at all, since Campo Santo did not list any requirements for obtaining those rights; they were offered freely.

I could see a potential argument that says Campo Santo granting those rights to anyone carried with it an implicit consideration that everyone posting videos is essentially doing free marketing for the game, which benefits Campo Santo. That seems really spurious, though, especially since the consideration would be fairly ill-defined in that case--Campo Santo benefits from some unknown and unspecified amount of marketing effort directed at some unknown audience.

Oh, for sure, everything you said is a major flaw in the argument. What I said is still stretching it. My only point was that, in this case, maybe there is a reach.... In other cases there may not even be that. But for sure, definitely still a reach.

I just pointed it out because I think this case does have a bit more 'reach' (however little) to work with because you have extra details such as Firewatch having had (written and implied-in-fact for 2 years) a LP policy that allows and acknowledges for the LPer to receive consideration, and then the recent tweet admitting the Firewatch devs also probably received consideration. Definitely still not much to work with but better than, say, a game that had a 'No LPs/no monetization' policy explicitly from day one.

At the very least, it would slightly help Fair Use because it supports the market value test because of the devs allowing for monetization and acknowledging they likely also benefited from it.

Which could be useful because the market value could be the easiest or hardest of the 4 checks. Common sense would say LPs do benefit many games, but there's no real evidence so it'd be pretty easy for the dev to just say the opposite. So in this case, you have a rare case where the devs admit they probably did benefit from the LPs. That simple tweet would end up being pretty useful because you're never going to get real data on it so an admission by the dev could end being pretty useful.

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