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[RichiRamjag]

Guys we get it, so pewdiepie said fucking . But did these game devs really need to dmca!? How barbaric. Theyve gone too far! Taking down a video? Absolutely disgusting, total abuse of the system, whats next, George Washington?

You better toss a /s on there. After the last thread, some would take it as serious.

 

[Blam]

Yeah, i'm well aware.

Spoiler

Crawling in my skin, these wounds they do not heal

Didn't H3H3 just win a case against that dumb parkour guy who sued them for using footage of his videos?

Yes actually they did.

Creators don't want their products associated with things like overt bigotry and fringe white supremacy. Copyright law gives them some tools for protecting those interests. Full stop. Whether or not this is also a social censure makes no difference, because there's an obvious business and artistic concern at the fore.

Considering this response targeted abuse is a preposterous way to look at things. What that characterization in the quotes implies is that racists should recieve special protections that make the law not apply to them.

You do understand their products are now only associated with PewDiePie because they did this right? Nobody would have bat an eye if they left it. I don't go looking at PUBG and think PewDiePie, no I think of Twitch first then anything else.

I don't see how this would be a thought. Just because someone played your game doesn't mean they are now a part of your brand. Just because trumps son plays Minecraft doesn't me now Minecraft is a part of the US Government, and now everyone is going to think of Minecraft and then think of Trump, and the US. That's not how it works.

 

[Kyzer]

This is how I feel. I also believe that Let's Plays and streaming is a transformative work, where you aren't going to any streamer/LPer to see the game, you're going to the streamer/LPer you like who plays games and makes banter you like. Like I'd happily watch the Super Best Friends play next to anything because I like how they interact with games and each other but I'd avoid Pewdiepie because at best he just doesn't care about anything he says or does and at worst he's a massive racist and anti-semite who has a massive audience, plus he isn't funny or entertaining to me so I wouldn't watch him play a game I could watch people I actually enjoy play the game.

In this case though, I think he should be allowed to keep his LP up. I mean, at least in the way I don't think Campo Santo should be able to take it down. If Youtube want to kick Pewdiepie off YT because he's a massive shit and breaking ToS by being racist or anti-semetic in videos then I'm all for it. Same if he got banned in PUBG for streaming it while using racist language. But I'm not a fan of devs being able to take down their content because they are bad people because then what is to stop any other dev from just taking down any video because they don't like the person.

And yeah, Pewdiepie (and other LPers/streamers) didn't make the game so shouldn't profit off the game, but they did make the video. The game is like an instrument that they play. Some do it badly and basically just play the game start to finish with next to no insight or talking and some edit it down to the "best" bits, some have a friend along they chat with about the game or other things and do more with their video than just stream a game.

At the end of the day though, I guess Campo Santo do have a right to remove the videos if they want, I mean they do own the images and assets and product used in the thing but knowing Youtube and the world right now, they will take the video down, Pewdiepie will contest, they will go to court and Campo Santo will win and then devs and pubs will have the right to shut down any LP or review that uses footage of their game, even more power because they can basically do that for 2 weeks anyway with Youtube but maybe they'll be able to just get them off permanently without the uploader being able to contest..

So youtube can boot him for being racist but the firewatch devs shouldn't have any say in whether or not he uses their IP. Why is that?

And lol @ lets plays being transformstive. If i film myself watching a movie or sports broadcast is that fair use too?

 

[#sorrynotsorry]

This issue is way more complicated than the OP makes it seem. It's not black and white. I'd imagine this would not hold up in court. The two did not have an explicit agreement. And so when they allow youtubers to infringe constantly by doing nothing, they implicitly allow the let's play video and lose the right to send targeted takedowns. That's why Nintendo's approach is so draconian.

So youtube can boot him for being racist but the firewatch devs shouldn't have any say in whether or not he uses their IP. Why is that?

And lol @ lets plays being transformstive. If i film myself watching a movie or sports broadcast is that fair use too?

YouTube controls their own service. They're allowed to discriminate. Firewatch devs arguably lost that right re: LPs by not enforcing it for years. They impliedly allow anyone to use it.

Also, I'm not sure I agree LPs are fair use. Likely not. But your analogy is a bad one.

 

[Seesaw15]

Yes. The difference is that Nike has a contract with Ronaldo and use directly his image. So they are explicitly associated with him.

So it makes sense when you are explicitly associated with someone, to then dissociate. But this explicit association doesn't exist between Firewatch and Pewdiepie, so an explicit dissociation can't be motivated by a preexisting association that was never there.

You want to dissociate to make a stand.

While not an explicit association Pewdiepies let play was the first result you'd get when searching "Firewatch" on youtube.

 

[Gotdatmoney]

So youtube can boot him for being racist but the firewatch devs shouldn't have any say in whether or not he uses their IP. Why is that?

And lol @ lets plays being transformstive. If i film myself watching a movie or sports broadcast is that fair use too?

I mean all the devs would do is take it to Youtube and say you no longer have permission to host our videos on your platform if you arent gonna stamp out shits like this. They dont have to allow that content at all bar fair use like reviews.

 

[ClosingADoor]

This is how I feel. I also believe that Let's Plays and streaming is a transformative work, where you aren't going to any streamer/LPer to see the game, you're going to the streamer/LPer you like who plays games and makes banter you like. Like I'd happily watch the Super Best Friends play next to anything because I like how they interact with games and each other but I'd avoid Pewdiepie because at best he just doesn't care about anything he says or does and at worst he's a massive racist and anti-semite who has a massive audience, plus he isn't funny or entertaining to me so I wouldn't watch him play a game I could watch people I actually enjoy play the game.

The fact that you watch a stream for the people, not the game, does not mean the stream can get away with just showing copyrighted material. I watch the new Star Wars movie for the Jedi, but if the Enterprise replaces the Millenium Falcon, you sure as hell know the Star Trek rights holders will have a thing to say about that.

In this case though, I think he should be allowed to keep his LP up. I mean, at least in the way I don't think Campo Santo should be able to take it down. If Youtube want to kick Pewdiepie off YT because he's a massive shit and breaking ToS by being racist or anti-semetic in videos then I'm all for it. Same if he got banned in PUBG for streaming it while using racist language. But I'm not a fan of devs being able to take down their content because they are bad people because then what is to stop any other dev from just taking down any video because they don't like the person.

But Youtube doesn't ban him. So should developers then just accept a racist will profit from their games?

And yeah, Pewdiepie (and other LPers/streamers) didn't make the game so shouldn't profit off the game, but they did make the video. The game is like an instrument that they play. Some do it badly and basically just play the game start to finish with next to no insight or talking and some edit it down to the "best" bits, some have a friend along they chat with about the game or other things and do more with their video than just stream a game.

Making a video doesn't matter if you include copyrighted material. A game is not an instrument.

At the end of the day though, I guess Campo Santo do have a right to remove the videos if they want, I mean they do own the images and assets and product used in the thing but knowing Youtube and the world right now, they will take the video down, Pewdiepie will contest, they will go to court and Campo Santo will win and then devs and pubs will have the right to shut down any LP or review that uses footage of their game, even more power because they can basically do that for 2 weeks anyway with Youtube but maybe they'll be able to just get them off permanently without the uploader being able to contest..

Pewdiepie will not contest. He knows that if he loses it has much larger consequences for him.

And honestly, how much abuse have we seen from publishers taking down Let's Plays? Some don't want it, so you have to accept that. But that is not abuse. I have yet to see a publisher actually abusing the system here.

 

[EviLore]

This issue is way more complicated than the OP makes it seem. It's not black and white. I'd imagine this would not hold up in court. The two did not have an explicit agreement. And so when they allow youtubers to infringe constantly by doing nothing, they implicitly allow the let's play video and lose the right to send targeted takedowns. That's why Nintendo's approach is so draconian.

That's not how the DMCA works.

 

[Ozigizo]

At the end of the day though, I guess Campo Santo do have a right to remove the videos if they want, I mean they do own the images and assets and product used in the thing but knowing Youtube and the world right now, they will take the video down, Pewdiepie will contest, they will go to court and Campo Santo will win and then devs and pubs will have the right to shut down any LP or review that uses footage of their game, even more power because they can basically do that for 2 weeks anyway with Youtube but maybe they'll be able to just get them off permanently without the uploader being able to contest..

Slippery slope is a fallacy.

 

[Kyzer]

I mean all the devs would do is take it to Youtube and say you no longer have permission to host our videos on your platform if you arent gonna stamp out shits like this. They dont have to allow that content at all bar fair use like reviews.

Ok but why should they even have to do that ? The point is that its their IP and they control it however they want, YouTube doesnt have tthe right to arbitrate their IP control for them. You gotta think about these things from the perspective of creators and how unfair it would be to not have any control over your own property

 

[Gotdatmoney]

YouTube controls their own service. They're allowed to discriminate. Firewatch devs arguably lost that right re: LPs by not enforcing it for years. They impliedly allow anyone to use it.

Also, I'm not sure I agree LPs are fair use. Likely not. But your analogy is a bad one.

Naw. This isn't how it works. Turning a blind eye doesn't mean you forfeit ownwrship of your IP. You think because the industry turns a blind eye if streamers just start waving nazi flags publishers hands are tied? Hell no.

Ok but why should they even have to do that ? The point is that its their IP and they control it however they want, YouTube doesnt have tthe right to arbitrate their IP control for them. You gotta think about these things from the perspective of creators and how unfair it would be to not have any control over your own property

I agree with you. I was just saying the IP owner isn't gonna suddenly lose their rights either way.

 

[Ozigizo]

YouTube controls their own service. They're allowed to discriminate. Firewatch devs arguably lost that right re: LPs by not enforcing it for years. They impliedly allow anyone to use it.

Also, I'm not sure I agree LPs are fair use. Likely not. But your analogy is a bad one.

You're thinking of trademarks, which is not what this is.

 

[#sorrynotsorry]

That's not how the DMCA works.

It's how copyright law works. I work in the field (though admittedly not an attorney).

 

[BronsonLee]

Slippery slopes are for waterslides.

 

[Kyzer]

YouTube controls their own service. They're allowed to discriminate. Firewatch devs arguably lost that right re: LPs by not enforcing it for years. They impliedly allow anyone to use it.

Also, I'm not sure I agree LPs are fair use. Likely not. But your analogy is a bad one.

Youtube does not own the content you upload to their service so it doesnt really matter, its not discrimination its their rights as owners of the property. In fact thats why YouTube is so 0 or 1 with DMCA hammers, because part of their obligation in order to be able to run a site like youtube that could easily become rife with piracy and dmca violations, is doing everything they can to protect the people who have legal rights and ownership, basically they are covering their own ass above all by immediately dmca'ing things.

Also you're mistaken about protecting your ip consistently, apparently theres no precedence for someone being unable to protect their ip from failure to do so in other instances. Could be wrong but this comes up all the time in nintendo takedown threads

Naw. This isn't how it works. Turning a blind eye doesn't mean you forfeit ownwrship of your IP. You think because the industry turns a blind eye if streamers just start waving nazi flags publishers hands are tied? Hell no.



I agree with you. I was just saying the IP owner isn't gonna suddenly lose their rights either way.

Oh gotcha. Well yeah youtube certainly has some work to do too

 

[Chairmanchuck]

It's how copyright law works. I work in the field (though admittedly not an attorney).

Not sure if its like that in America, but in Germany you wont lose your copyright just because you didnt care before.

If I produce a song, upload it somewhere and then 2 years later see its used by alt-righters in every of their videos, doesnt mean I cant sue them for copyright infringement.
(Also disclosure: German media law graduate, working in the legal field)

I also dont think that the publishers of Farming Simulator loses their copyright just because they decide to sue someone 5 years after Farming Simulator 2012 came out, because they didnt care for 5 years.

 

[Evolution of Metal]

It's how copyright law works. I work in the field (though admittedly not an attorney).

Well, then you need to educate yourself about this case instead of using your expert knowledge of the case you are not familiar with.

 

[Armaros]

It's how copyright law works. I work in the field (though admittedly not an attorney).

You are thinking of trademarks.

Copyrights have no such conditions that punish selective enforcement

 

[sonicmj1]

YouTube controls their own service. They're allowed to discriminate. Firewatch devs arguably lost that right re: LPs by not enforcing it for years. They impliedly allow anyone to use it.

They explicitly allowed anyone to use it. They have a message on their site saying that they're okay with people streaming their game and making money from it. Their lack of action can't possibly be interpreted as abandonment in that context.

And while that message means that they can't go after PDP for any past revenue he made from their video, I don't see any good reason to assume the license they granted through that wide message on their website is irrevocable.

EDIT: This reason below is better.

You are thinking of trademarks.

Copyrights have no such conditions that punish selective enforcement

 

[#sorrynotsorry]

You are thinking of trademarks.

Copyrights have no such conditions that punish selective enforcement

Could be true. Like I said I'm no expert. But in my work I have dealt with implied licenses. They allow the licensee to do whatever the license holder would have allowed anyone else to do. When analyzing that, you do look to the practice of the general community. In this case, when the devs allow literally everyone else to use them for LPs, they may have given an implied license to PDP to create LPs.

Edit: Per below, explicit license was given which means they definitely can't do a DMCA takedown. They can only revoke that license moving forward.

 

[EviLore]

It's how copyright law works. I work in the field.

You're not very good at it, then.

 

[BronsonLee]

This is all moot btw because he's not going to press the issue on this while he's defending the accusations of being a racist

 

[blakep267]

Was there any reason the same end goal could not have been achieved by sending a simple two line email to PDP saying that they wanted to end their business relationship and telling him to remove those videos from his channel?

Why did they have to publicly announce that they were instead using DMCA takedowns and asking others to do the same? The DMCA system is completely broken (at least the way Youtube handles it) and ripe for abuse. Being legally allowed to issue takedowns doesn't change that.

Because you don't quietly denounce racists in a letter. You send a message that can be heard by everybody

 

[#sorrynotsorry]

They explicitly allowed anyone to use it. They have a message on their site saying that they're okay with people streaming their game and making money from it. Their lack of action can't possibly be interpreted as abandonment in that context.

And while that message means that they can't go after PDP for any past revenue he made from their video, I don't see any good reason to assume the license they granted through that wide message on their website is irrevocable.

That's actually even more important. Because you definitely can tell him in future videos he can't, but you can't retroactively revoke a license. That would be absurd and prone to abuse.

 

[Uno Venova]

I wish every publisher and developer blacklisted the fuck outta this dude.

 

[ClosingADoor]

That's actually even more important. Because you definitely can tell him in future videos he can't, but you can't retroactively revoke a license. That would be absurd and prone to abuse.

Yes, you can revoke a license. There was no contract, so the license can be revoked for whatever reason the rights holder seems fit. After that you can no longer distribute the video, so the rights holder can file a takedown request.

They can however not sue for any damages for the period the license was in effect.

 

[Gestault]

I don't mean this to be snide: I wish law classes were part of the standard curriculum in the United States starting in secondary school. I had maybe 20 credit hours of Constitutional and copyright law classes as part of my undergrad. They felt awful at the time, but it's some of the most useful education I ever got. The world makes more sense. It also makes it extra frustrating when I run into people who think they know more than they do (and I'm sure the same applies about me for people who know even more).

 

[shimrra]

Point and simple there really is no debating this issue because at the end of the day big business is going to DMCA everyone just to play it safe.

It's either everyone gets regulated or no one does and the sad things is we all know which way its going to go.

 

[shanafan]

I'm ok with this. YouTube is a cesspool.

Sure, but when the developer makes bank with a high profile YouTuber like PDP playing their game, they sometimes need that cesspool to be successful.

 

[MHWilliams]

That's actually even more important. Because you definitely can tell him in future videos he can't, but you can't retroactively revoke a license. That would be absurd and prone to abuse.

This was French's take on the matter. Two other lawyers, including the person who wrote the article, disagreed. Likely because the issue isn't one currently taken care of in case law involving Let's Plays.

 

[Gormenghast]

...In the meantime Pewdiepie is streaming with the title "THE SHOW MUST GO ON" and mentioned he might dedicate a video to Firewatch and DMCA specifically.

I guess we aren't done yet with all this...

 

[Oxymoron]

Point and simple there really is no debating this issue because at the end of the day big business is going to DMCA everyone just to play it safe.

It's either everyone gets regulated or no one does and the sad things is we all know which way its going to go.

Developers have always been able to DMCA Let's Plays. Why do you think they haven't until now, and what's changed?

 

[Crimson_Echidna]

It's how copyright law works. I work in the field (though admittedly not an attorney).

Could be true. Like I said I'm no expert.

 

[#sorrynotsorry]

Yes, you can revoke a license. There was no contract, so the license can be revoked for whatever reason the rights holder seems fit. After that you can no longer distribute the video, so the rights holder can file a takedown request.

They can however not sue for any damages for the period the license was in effect.

There was no express license to distribute. There was an express license to create the content and an implied license to distribute. You can't revoke the implied license because it's attached to the express license. You can revoke the express license but only for future videos.

Logically, this is the only thing that makes sense. Otherwise people couldn't rely on licenses and granting a license would lose its meaning.

 

[ClosingADoor]

There was no express license to distribute. There was an express license to create the content and an implied license to distribute. You can't revoke the implied license because it's attached to the express license. You can revoke the express license but only for future videos.

Logically, this is the only thing that makes sense. Otherwise people couldn't rely on licenses and granting a license would lose its meaning.

No, this does not make sense.

By your logic, a license can never be revoked for already existing content. So why are games removed from Steam after a music license expires, or songs removed from Spotify if a music label doesn't renew their license? Or if a tv channel does no longer have the license for a movie, they can't continue to air it anymore.

 

[Kyzer]

IMO Lets Plays will never be declared fair use, and its not even close. Maybe if it was 5-10 minute clips randomly throughout the game along with commentary. So it could be for criticism of the work. Literally them playing through the entire game will not fly as direct quoting or excerpting for criticism. And its not even close to transformative. People make the mistake of reading the word transformative and interpreting it on their own to mean just a sort of new take on things but in reality for something to be transformative enough to not violate copyright law it has to be basically unrecognizable from the original form. Music is always the easiest thing to look at because its the most heavily litigated. You can make a new song from a small sample of a song and it still be copyright violation. You can write your own original composition but due to similarity of instrumentation and composition still be declared to be copyright violation (see: Blurred Lines). Remixing a song into a totally new genre is still not transformative enough to be fair use. It has to basically not resemble the original work at all, in most cases, in order to not require permission from the owner. So using someones footage in your lets play while you comment and play the game is not transformative. Its still literally just their IP and you using it. I cant even think of a way for a lets play to be transformative enough to be fair use on its own, because at least with music you can chop sounds up and reverse them and make them totally unrecognizable. Theres pretty much no way to just have an entire game playthrough streamed and it be transformative enough to not be straight up using the games IP.

 

[David___]

...In the meantime Pewdiepie is streaming with the title "THE SHOW MUST GO ON" and mentioned he might dedicate a video to Firewatch and DMCA specifically.

I guess we aren't done yet with all this...

Smart way of getting every Gaming Youtuber on yourside if he's thinking about taking it to court

 

[tearsintherain]

If the devs issuing a DMCA takedown of anyone they feel have a negative impact on their game with is fine, what about the game getting review bombed to 1 star by people who disagree with that? Is that ok too? Both are consequences of things you say or do.

End of the day I'm not happy with either reaction, but I can't really think of a way to stop it either that isn't more oppressive than the actions themselves.

 

[Phrozenflame500]

This was French's take on the matter. Two other lawyers, including the person who wrote the article, disagreed. Likely because the issue isn't one currently taken care of in case law involving Let's Plays.

Oh man I *love* legal grey areas, so fun.

At least it probably won't go to court, that would be really rough for YouTubers..

 

[Kyzer]

If the devs issuing a DMCA takedown of anyone they feel have a negative impact on their game with is fine, what about the game getting review bombed to 1 star by people who disagree with that? Is that ok too? Both are consequences of things you say or do.

End of the day I'm not happy with either reaction, but I can't really think of a way to stop it either that isn't more oppressive than the actions themselves.

Reviews are 100% fair use.

 

[VariantX]

Guys we get it, so pewdiepie said fucking nigger. But did these game devs really need to dmca!? How barbaric. Theyve gone too far! Taking down a video? Absolutely disgusting, total abuse of the system, whats next, George Washington?

The line people are drawing here is just baffling to me.

Plenty of entertainers or famous people who have said or done bad or even horrible things have had tons of companies go out of their way to disassociate themselves, products and branding from those people contract or no contract. Nobody blinks when companies do it in other spheres of the entertainment industry. When people do the same with PDP, this is a problem now because it's related to the gaming industry? When you have people toiling for years to create a positive association with their brand in the general public of course they're going to disassociate from that person.

 

[Timeaisis]

Of course it's legal, that's how DMCA works. Here's the tricky thing, though.

If you agree that Campo is in the right to issue a DMCA takedown, you are effectively agreeing that Let's Plays are not fair use. If you think Let's Plays are fair use, then you are effectively agreeing that publishers should not be able to take down content.

 

[#sorrynotsorry]

No, this does not make sense.

By your logic, a license can never be revoked for already existing content. So why are games removed from Steam after a music license expires, or songs removed from Spotify if a music label doesn't renew their license? Or if a tv channel does no longer have the license for a movie, they can't continue to air it anymore.

You're not citing an analogous situation. Those licensing deals are express and have a set deadline and likely state each party's rights at each stage of the license. Obviously if an agreement deals with distribution it will control. But this situation does not have an express statement on distribution. It must be implied.

 

[Armaros]

Of course it's legal, that's how DMCA works. Here's the tricky thing, though.

If you agree that Campo is in the right to issue a DMCA takedown, you are effectively agreeing that Let's Plays are not fair use. If you think Let's Plays are fair use, then you are effectively agreeing that publishers should not be able to take down content.

Let's plays are not ever going to be ruled as fair use.

 

[#sorrynotsorry]

Great. Now GAF is giving me ads for Legalzoom.

 

[FinalStageBoss]

Of course it's legal, that's how DMCA works. Here's the tricky thing, though.

If you agree that Campo is in the right to issue a DMCA takedown, you are effectively agreeing that Let's Plays are not fair use. If you think Let's Plays are fair use, then you are effectively agreeing that publishers should not be able to take down content.

"Lets Plays" where you show every bit of a game will never be fair use tbh.

 

[Skittles]

You're not citing an analogous situation. Those licensing deals are express and have a set deadline and likely state each party's rights at each stage of the license. Obviously if an agreement deals with distribution it will control. But this situation does not have an express statement on distribution. It must be implied.

All games are distributed via a non-commerical license though. Which can be revoked at the copyright holders discretion. That license is not a deal or contract lol.

 

[chromatic9]

That's actually even more important. Because you definitely can tell him in future videos he can't, but you can't retroactively revoke a license. That would be absurd and prone to abuse.

Unless they've signed a specific contract with Felix then they can update the license on their site saying no pewdiepie Felix from today, then Felix is no longer allowed under the license to showcase the content, so any new views or association are not allowed. the past is the past, a license is ongoing and can change. I can grant you permission until I don't, unless I've signed it away to you for 10 years and you've not broken anything within the contract.

 

[ClosingADoor]

You're not citing an analogous situation. Those licensing deals are express and have a set deadline and likely state each party's rights at each stage of the license. Obviously if an agreement deals with distribution it will control. But this situation does not have an express statement on distribution. It must be implied.

But this license also has a deadline. The moment the rights holder revokes the license, which they have the right to do because there is no contract.

It seems pretty clear cut to me. The license is revoked, so you don't have the right to air the videos with copyrighted material anymore.

 

[Mael]

I can't broadcast a performance of a play I don't have a license on.
That's far more transformative than a LP will ever be.
LPers never had a license and never wanted to do the legwork to get one and yet want to act like they own the content other people have.