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The Power of Developers to Deny the Right to Use Their Content - a Debate thread
- Thread starter JonnyDBrit
- Start date
Video Game Attorney: "We'll get into why Firestorm DMCA's are entirely legal, even if cherry picked, on this week's @robot_congress - out Tuesday morning!"
https://twitter.com/MrRyanMorrison/status/907035149128179712
https://twitter.com/MrRyanMorrison/status/907035149128179712
Here's Jim Sterling's take.
https://twitter.com/JimSterling/status/907026683420663808
PDP is hurting the business for let's players.
https://twitter.com/JimSterling/status/907026683420663808
PDP is hurting the business for let's players.
JonnyDBrit
Member
Not sure if this necessarily classes as Jim taking a stance on the DMCA stuff, so much as talking about PDP and his impact on... well, Youtube, Let's Plays, you name it. Would wait and see until he answers on it specifically.
I mean yeah he was the cause for advertisers pulling out of Youtube or at least threw the gasoline on the fire when the issue was being talked about.
Trigonometrize.
Member
Sure, I don't deny that IP ownership isn't a super-narrow thing. However, all of your examples lead to something that is demonstrably interfering with the market of the original. Make a play with elements of the original play? Bad. Got it. But I don't think you can offer quite the same proof with videos of a game being played, even in extreme examples of visual novels with no commentary. They're derisions from the original but so fundamentally different. Even the developer of most games can not upload a single video that will cover all the different ways people can transform the work.
If it's protected under fair use (and it is), it's no longer their content to license. That is the fundamental difference between playing The Rolling Stones song unaltered and pdp doing a let's play. He does not need a "license" to produce lets plays.
My fundamental problem with this is not that I like PDP, (I've hated him for being annoying and lame years before people called him a racist) but that there are a lot of situations where people are not going to agree one what is or is not offensive enough to warrant a DMCA ban. I don't think you can build any sort of legal standard around it.
I mean, PDP is kind of the face of YouTube. His constant controversies are nothing but damaging to everyone because everyone else has to pay for his controversies while PDP gets off scott free.
funkystudent
Member
I think its one of those things that probably needs to go through a court room just to shut up some of the "BUT FAIR USE MEANS I CAN DO WHAT I WANT" crowd.
Game streaming is a bit of a wild west legally ATM but if it came down to it I dont see how it wouldn't be different then rebroadcasting other forms of media where the IP holder always has the final say.
Game streaming is a bit of a wild west legally ATM but if it came down to it I dont see how it wouldn't be different then rebroadcasting other forms of media where the IP holder always has the final say.
JonnyDBrit
Member
Aye, and not contending that. But that would be Jim's position on PDP as an entertainer and business person, not on how Campo Santo have chosen to act in turn. Others are asking about whether or not his view extends to the DMCA but he hasn't responded on that yet.
That is sort of what fair use means as long as it meets certain standards. That's why I think the video game attorney is wrong, or at least he is expressing a personal opinion that isn't backed up by case law.
To go off of the example that I linked to, I'm not sure how The Verve using a five-second sample of an instrumental orchestral version of a Rolling Stones song on the very different "Bittersweet Symphony" demonstrably interferes with the market for their music, but a video of Pewdiepie playing through the narrative-heavy Firewatch does not interfere with the market for Firewatch.
King Tubby
Member
When Atlus told people not to post Let's Plays of Persona 5 past a certain in-game date or they'd be issuing takedowns, they were well within their rights to do so and it dissuaded people from making those videos (or any Let's Plays at all, really). I think the legal questions hinge on whether his initial videos are protected at all, and if not, whether the developers are free to take them down after a good amount of time has passed already and they were aware and tolerating the content.
BRSxIgnition
Member
chromatic9
Member
Gaming might seem like a grey area compared to music and film but what about a food product? For example someone on youtube delivers a racist monologue each week sat next to a tube of pringles, has 50 million subs, the person and the pringles are the two most prominent parts screen and also the person consumes a few.
Product placement is the cry? Isn't playing Monopoly, eating whatever branded food or playing Destiny showcasing a product?
Seems like a ToS issue to avoid a can of worms. A review is fair use but quite a lot else is ultimately showcasing a product whatever it is.
Product placement is the cry? Isn't playing Monopoly, eating whatever branded food or playing Destiny showcasing a product?
Seems like a ToS issue to avoid a can of worms. A review is fair use but quite a lot else is ultimately showcasing a product whatever it is.
Chobel
Member
I dunno how I feel about this, on one hand I don't think companies should have the power to decide who get or don't get "fair use" with their products, but at the same time I don't like when shitty people get enabled to continue their shitty behavior. So is there anything else Campo Santo can do beside DMCA takedown?
Trigonometrize.
Member
The five-second sample seems pretty extreme to me and I would want to have that changed if I were invested in that industry, but again, they're so fundamentally different. Rolling Stones already released music called "Bittersweet Symphony," so I can understand the argument that someone else releasing parts of "Bittersweet Symphony" as music and in somewhat of the medium and form it originally appeared in is a violation, even if the length is on the lower side of things. However, I cannot understand the argument of the video of PDP playing the game being the same thing as the game. Why doesn't Campo Santos just release a video of Firewatch being played in the style of PDP made by themselves instead of the game? Or even just alongside the game? Maybe it's because the markets and mediums are different with entirely different goals and sometimes even audiences?
It just seems obvious to me that videos of games being played are on a different level than samples and scripts.
There is no Rolling Stones song called "Bittersweet Symphony". You might be confused because the Rolling Stones got 100% of the songwriting credits for that song after they won a lawsuit against The Verve for the use of a sample performed by the Andrew Oldham Orchestra and arranged by somebody with no relationship to The Rolling Stones.
VibratingDonkey
Member
A DMCA takedown is the wrong tool for the job. But also the only one available at this point? There should be a proper avenue for developers to do this.
As I understand it, if Pewdiepie keeps using Campo Santo games for videos under fair use rules, a DMCA takedown can't work regardless of how vile the video is.
Just to clarify that by "wrong tool" I'm not worried about this leading to DMCA abuse, which is already happening and will continue to happen regardless of Campo Santo's action. And which is also Youtube's responsibility.
James Scott
Banned
Yep. He's the biggest in the business. Pretty sure his anti Semitic jokes are what started the adpocalypse. If he couldn't control himself the first time YouTubers should speak up since he'll only do more damage
Those companies actually can do that, yeah. there are also other things too like when you watch TV, you'll notice that these products are often replaced with safe or parody like versions of the product rather than the real thing because they could be sued for using a product on a show without the license of the product.
In reality TV and events, since not much can be done about, they will often blur out clothing with logos and art. Even a can of Pringles.
We've also had this whole thing with the "adpocolypse" where those companies have been calling out Google and YouTube and their failure to get hate speech off the platform because they're finding that their ads are running on hateful videos. That's one of the other forms in which it can take too.
Trigonometrize.
Member
Sorry, I should've given that a closer read. Again, that seems really strict that the Rolling Stone was able to reach across multiple steps of removal from its original work, yet the medium didn't change and the markets for the medium didn't change, so I can still see the spirit of the violation.
Virtually none of the Let's Play videos meet the standards of Fair Use. That's part of the problem. Fair Use is decided based on a set of issues, including whether the content is educational or commercial, how much of the content is used, whether the content adds value, and whether the content could effect sales of the original. Most Let's Plays fail under three of the four categories by using the entire game, making money off it, and potentially diminishing sales by revealing the entirety of the content.
The DMCA is a blunt, ugly tool, and Google's handling of it makes it even worse, but if one of these ever gets to an actual court, the Let's Players are almost certainly going to lose.
That hasn't happened largely because Let's Plays are treated like free advertisement by a lot of places, and they aren't willing to shut down the attention, or upset their fans over it, but neither of those have to do with the actual law.
The same logic applies if you change mediums. You couldn't write a novelization of Metal Gear Solid without permission from Konami, or make a play based on a TV show. Think of how valuable IP rights are for movie companies right now. The licenses to make comic book movies are extremely valuable, even though you wouldn't say those films affect the market for the comic books.
Robert at Zeboyd Games
Banned
Looking at this page on Fair Use factors, it doesn't look like it'd be very hard to make a case for a DMCA here - http://fairuse.stanford.edu/overview/fair-use/four-factors/
4 The Effect of the Use Upon the Potential Market - You just say you don't want your product associated with a high profile individual with a history of being horribly racist and that you feel like it would have a negative financial impact to be associated with such an individual.
As an extra bonus, since Fair Use is a very subjective matter, the 5th factor - "Morality" - means that if you get a judge or jury who is anti-racist, your case becomes even easier to win.
It's also worth mentioning that a company doesn't need to prove that you're in violation of Fair Use - the individual needs to prove that Fair Use applies to them. Fair Use isn't a default state. There's a reason why Weird Al gets permission from everybody who owns the original material that he bases his parody songs on even though it would be easy to claim a parody Fair Use clause for his work.
4 The Effect of the Use Upon the Potential Market - You just say you don't want your product associated with a high profile individual with a history of being horribly racist and that you feel like it would have a negative financial impact to be associated with such an individual.
As an extra bonus, since Fair Use is a very subjective matter, the 5th factor - "Morality" - means that if you get a judge or jury who is anti-racist, your case becomes even easier to win.
It's also worth mentioning that a company doesn't need to prove that you're in violation of Fair Use - the individual needs to prove that Fair Use applies to them. Fair Use isn't a default state. There's a reason why Weird Al gets permission from everybody who owns the original material that he bases his parody songs on even though it would be easy to claim a parody Fair Use clause for his work.
Stallion Dan
Member
I guess because Advertisers go to for example, Breitbart, so can also walk away.
Unless Devs go to a YouTuber it not the same, and blanket "Do it" statements followed by "But not you because X reason" is very different.
This is the problem with loose rules regarding this on YouTube, when someone wants to make one it can affect everyone.
You should blame PDP for poisoning the well then. His high profile scandal forced the hand of advertisers on YT and this racist flap will likely make things worse.
Sterling is absolutely right because as besada said the situation with let's plays and the like are at this point a topic that has not been before the courts because of the relationship the industry has had with what it considers "hypers" etc.
PDP may very well cause enough issues that this does end up before a court and suddenly everything will change quite rapidly. The days of Let's Plays etc. could end and you would see just like TV and movies with tightly restricted rules put into place.
PDP may very well cause enough issues that this does end up before a court and suddenly everything will change quite rapidly. The days of Let's Plays etc. could end and you would see just like TV and movies with tightly restricted rules put into place.
James Scott
Banned
PDP's videos aren't reviews/critiques
tiebreaker
Member
Pubs and devs letting their games being played through in its entirety is always weird to me. Especially the story based games.
How is this any different from companies wanting to distance themselves from trump after his defense of racists from charlottesville?
As far as their legal rights, most people don't actually know what they are talking about. The vast majority of 'let's play' videos have no legal grounds to stand on. Besada said it perfectly:
As far as their legal rights, most people don't actually know what they are talking about. The vast majority of 'let's play' videos have no legal grounds to stand on. Besada said it perfectly:
I have no problem whatsoever with advertisers pulling their content, I have an issue with the interpretation of copyright law that gives IP holders ownership of the literally infinite permutations of game states and subsequent frames of video that can arise over the use of their products. I blame the US court system for their shitty interpretation of fair use (though afaik video game footage hasn't been thoroughly tested in court yet.
This isn't exactly true. Legally speaking, companies do actually have to consider whether fair use applies to something before issuing at takedown request, so in theory fair use isn't just a reactionary defense of ones own work.
Weird Al gets permission because he's a nice guy.
GitarooMan
Member
Yeah Let's Plays are not Fair Use. They are just tacitly allowed for the free advertising and good PR. PDP is obviously not something they want to be associated with and I think that's OK
Yup exactly and that's why I have no issues with them doing this.
I honestly think it's a pretty cool thing because it has led to me buying games that i wouldn't but I also don't have an issue with them filing a strike with youtube against PDP. Maybe it is something that needs to go to court but I have no doubt in my mind PDP will lose and it will probably change how games are done on youtube if it gets that far.
I mean, if he specifically uses his product to make money and to foster hate speech, then fine. But it becomes bit of a blurry mess when he's making money of the product, but not directly using that product for hate speech. Don't know how you can easily tackle that problem. I can understand though that the creators don't want their product associated with people in a bad light.
Zombie James
Banned
Fully support the devs here, I would have done the exact same thing. I wouldn't want anything I create to be associated with racist shitbags.
Not only for him but for the entire platform.
I'm in support of the dev's doing this. It's no different than The Boss telling republicans to stop using 'Born in the USA' at rallies. Plus it'll hopefully force a lot of content creators to actually take a stand against this type of behaviour. It's just a shame it took their bottom line being affected to not be cowards.
Killa Sasa
Member
All of this is correct, as is the individual bringing up "this is why they blur shit on TV sometimes."
Wouldn't lose a wink over this being done. Is it possible I lose a bit of content that I like? Yeah, but them's the breaks.
The people who will get the maddest are those who cannot/will not understand why it's pretty damn legal. It's not the LPers IP and it is almost assuredly *not* fair use, at least in the traditional sense.
A review is very different from an LP.
Has this been tested in actual court? I have seen arguments both ways, but as far as I know it has never been tested in court. And even if it was, it's going to depend a lot on the individual case and how the let's play was done. If it's someone just sitting there playing silently with no camera, it might be judged differently than someone that is parodying the game as it's being played. Saying with certainty that lets plays are or are not not fair use isn't really possible today. It also might depend on the nature of the game. Of course, it might also be difficult to explain this to a judge or jury that might not appreciate the intricacies of whether or not let's plays of Street Fighter V are transformative but Telltale games are not.
I suspect most of them are violations of fair use but some of them may not be.
No one is willing to test it out in court and possibly jeopardize the business they have.
lingpanda
Member
I guess it would also depend on the country the person was streaming from? Would this interfere with freedom of speech in the states for instance? It would be nice to have something like this for online chat. For instance I and another user was online. This user had a psn name with the word black in it. He/she was immediately called the N word because he/she wasn't using a mic from an apparent Caucasian individual. What if devs could use voice recognition technology and revoke a users license from playing? FYI I kicked the user from the group.
Robert at Zeboyd Games
Banned
Freedom of Speech in the US only applies to the US government (you can criticize the government without fear of being imprisoned or executed). It has nothing to do with private businesses (YouTube can ban whoever they want) and doesn't give permission to break other laws (you can't break copyright and claim freedom of speech to try to get out of trouble).
Hello? This is Hailun!
Member
I disagree with this tactic purely on "slippery slope" situations. If it only ever applied to people like PDP then I wouldn't care, but we see this same attitude by the likes of Nintendo.
I just can't endorse the privatization of content.
But in the end, I also don't give a fuck. Fuck with PDP all you want. The industry would head down that slippery slope one way or the other anyway if that is truly "in the cards" so to speak.
I just can't endorse the privatization of content.
But in the end, I also don't give a fuck. Fuck with PDP all you want. The industry would head down that slippery slope one way or the other anyway if that is truly "in the cards" so to speak.
James Scott
Banned
No.
Private companies don't need to give you a platform.