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[excelsiorlef]

If I filmed myself doing an escape room. Does the company that own the escape room now have right to my film?

http://www.theescaperoom.co.uk/

Dunno.

Not the same though. Even the camera in a game is designed and programmed by the Devs

You can't film a movie and talk over it and call it transformative.

Despite what people want to believe games are far more movies than anything else.

 

[RoninChaos]

The creator of Pepe is fighting the same fight, to keep bigots from using his IP. Game devs deserve that same right. YouTubers and gamers are owed nothing.

Edit after phone typo fix: I also don't see this setting any bad precedent.

Yeah, I don't really feel there's a debate here.

 

[GamerJM]

Dunno.

Not the same though. Even the camera in a game is designed and programmed by the Devs

You can't film a movie and talk over it and call it transformative.

Despite what people want to believe games are far more movies than anything else.

What about something like SFM in TF2, which people have used to make short films?

 

[KarneeKarnay]

Dunno.

Not the same though. Even the camera in a game is designed and programmed by the Devs

You can't film a movie and talk over it and call it transformative.

Despite what people want to believe games are far more movies than anything else.

What about strategy games like CK2 or RPGs DeusEx? The decisions made by the player drastically change the story or gameplay.

Walking simulators are the closest to film, but then what quantifies as transformation? Would a critical analysis or commentary of the whole game count? Would a walkthrough count? Would an LPer who plays the game for the worse possible outcome count?

 

[excelsiorlef]

What about something like SFM in TF2, which people have used to make short films?

That's not really an LP is it.

 

[excelsiorlef]

What about strategy games like CK2 or RPGs DeusEx? The decisions made by the player drastically change the story or gameplay.

Walking simulators are the closest to film, but then what quantifies as transformation? Would a critical analysis or commentary of the whole game count? Would a walkthrough count? Would an LPer who plays the game for the worse possible outcome count?

All story and game play are programmed by the developer.

You are not seeing anything you couldn't potentially see if you played the game yourself.

You can't make a critical analysis of a whole film over top of the whole movie.

 

[GamerJM]

That's not really an LP is it.

To be honest I've always been pretty unclear as to how Let's Plays are defined. Originally I thought they were meant for playthroughs of a game's designed single player content but I've seen them used for other things.

This pretty definitively isn't, though, but I guess I just categorize everything that uses gameplay footage as "Let's Play".

 

[excelsiorlef]

To be honest I've always been pretty unclear as to how Let's Plays are defined. Originally I thought they were meant for playthroughs of a game's designed single player content but I've seen them used for other things.

A playthrough of a game from start to finish mostly.

Or in case of a game with no end... a very lengthy play video.

 

[vazel]

This is a slippery slope. A better option would be to organize boycott campaigns.

 

[excelsiorlef]

This is a slippery slope. A better option would be to organize boycott campaigns.

Boycott what his channel of 50 million viewers... many kids?

Not going to work.

 

[JABEE]

TLDR: I agree with the above. You can't treat games like film and copyright law needs to be updated.

I agree. The argument to LPs has always been grey. Some LPers do offer critical analysis, but is that protected by fair use? Whats the difference between this and showing an entire movie while having running critical analysis?

The matter is very grey and I think for a lot of people, myself included, I would prefer a definitive legal decision on this. Copyright law is very out of date when it comes to this sort of thing and it causes issues like Homicide Studios to happen.

Going back to games, games are a fairly unique medium. It doesn't work unless the player is involved. So what right does the player have to the game or gameplay? You can't say the player has no right to the gameplay, because if they weren't involved, there would be no gameplay. So the player has some right to it.

Now what about games with extremely limited gameplay? Games that are called walking simulators. The only option for the player is to move forward. The player has so few options that essentially the game could play itself. In this case it's much more similar to a movie. If you show the whole thing without commentary, is it the same as just uploading a movie to youtube. The difference is it still needs the player.

What about strategy games where the experience is different each time? Or RPGs where the player's build options could change the gameplay content for each player?

Gaming as a medium has an incredible amount of variety. You can't just put a blanket rule on this. Just look at YouTube right now to see the damage caused by it.

This isn't even getting onto how LPer might be transforming it through their commentary or not.

And you have games like Rocket League which might as well be substitutes for actual sports.

There are no traditional narrative or cutscenes. Every experience is different and the YouTuber is putting their own skills and self into just as a person commenting over their own soccer highlight videos captured on their own recording equipment.

I guess you could say no one owns the right to the rules of soccer.

 

[Saint of Killers]

I don't believe in the "Thin end of the wedge" argument in cases such as these; denying PDP because he's a racist twat shouldn't lead to others taking advantage of the situation in the future, and if it does then hopefully the courts will see sense and put it right.

 

[Nanashrew]

I mean, Firewatch is narrative based.

Most YouTubers are simply reacting to what's going on in a story driven game and doesn't really put them on the level of creating their own stories like a board game or Minecraft, or Rocket League.

 

[KarneeKarnay]

All story and game play are programmed by the developer.

You are not seeing anything you couldn't potentially see if you played the game yourself.

You can't make a critical analysis of a whole film over top of the whole movie.

Gameplay doesn't exist without the player, games do not play themselves. A lot games let the players make up the story themselves. No one plays the game the same way and you can't guarantee everyone is going to have the same story or gameplay experience. If you could they wouldn't be games they would be films.

You are not seeing anything you couldn't potentially see if you played the game yourself.

Tell that to football fans. They should stop watching football on tv because they could just be playing it themselves This argument is weird because you are right that I could see it if I played it myself. What does this have to do with developers have the right to own call content made from their own? You can't copyright an experience. Unless you are talking about professionals being excluded from copy right. Do professional LoL players have a better claim to their videos?

You can't make a critical analysis of a whole film over top of the whole movie.

You are right. Over the top of a movie it would still be illegal. What if I'm playing a game where every level was a vastly different gameplay style or setting? If I could talk critically the whole time would that still count?

Games aren't film. They need someone to play them. The argument is as much as does content exist before I play it, or does my playing of it create the content.

if you can't answer that question definitively then games can't be treated like film.

A question to you though. Does a director or owner of film and it's rights, does this person have the right to change a film after release?

 

[spineduke]

All story and game play are programmed by the developer.

You are not seeing anything you couldn't potentially see if you played the game yourself.

Eh, no. I'm not buying this at all. This isn't an open and shut case - and needs to be addressed in court. Gameplay has varying degrees of player involvement and commentary - so comparisons to movies isn't apt at all. We need new laws that take these factors into consideration.

 

[KarneeKarnay]

I mean, Firewatch is narrative based.

Most YouTubers are simply reacting to what's going on in a story driven game and doesn't really put them on the level of creating their own stories like a board game or Minecraft, or Rocket League.

I would agree with this to a point. Walking simulators are so close to film that I would not be surprised the first case defining transformative works in games, was a walking simulator case.

If you are just walking forward I don't think you can argue it as transformative.

That said what about Horror games which a lot of them are just walking simulators. You go forward and something awful happens to you. In this case it's the intent that matters. A reason horror is so popular amongst lpers is the reaction of the people watching them. If there was no context to the reaction, then people wouldn't watch.

The subject becomes, is it the games intent to scare you, or is it to tell a scary story. Is the reaction from the player more transfromative in this case, or less so.

 

[Cartman86]

I don't know if i'll ever fully agree with the idea that a developer can stop you from streaming a game entirely (especially if you host the videos yourself). If you are making money off said streaming I can see the point of the devs more though I suppose.

However, I really don't care if racists and such have a hard time with this. Cry me a river. I guess my principles with game streaming don't come before my moral principles.

 

[spineduke]

The subject becomes, is it the games intent to scare you, or is it to tell a scary story. Is the reaction from the player more transfromative in this case, or less so.

A good question is if Reaction videos in general are considered transformative works, regardless of the source material.

 

[dan2026]

Developers shouldn't have to do this.

YouTube should step in and ban his channel.
They won't because he's a big money maker but hey ho.

 

[dl77]

I side with the devs in this case, though it is still a morally grey area.

I think back to the dev of 'That Dragon Cancer' saying how he thinks that he probably lost quite a few sales of his game because of long play videos on Youtube. As it was a very linear narrative, once someone had watched a long play there was no impetus for them to purchase/play the game themselves.

As artists I think that the team should have a right to disassociate their product from someone who has repeatedly said many offensive things - regardless of whether you think they're said in jest.

Now is it applicable in non-linear/emergent games? That's a tougher call as on one side you can say that the video portrays a slice of gameplay that's unique to the video creator and therefore applies only to them so why shouldn't they have free reign to post it? On the other hand can a developer counter with the fact that the actual gameplay mechanics, environments etc are all created and owned by the team who created it? Therefore, though what the player does may be 'unique' to them, they're still operating within the constraints and systems built by the development team.

Then of course once you start looking into the mod community aspects it becomes a much, much greyer area!

 

[dl77]

Developers shouldn't have to do this.

YouTube should step in and ban his channel.
They won't because he's a big money maker but hey ho.

Yup, I had the same thought. If this was some streamer with a few hundred viewers he'd have been warned or banned straight away. As he's by far and away their biggest star they won't do anything that might send him over to another provider.

It's like Top Gear, you can say and do what you want as long as you bring in enough viewers.

 

[KarneeKarnay]

A good question is if Reaction videos in general are considered transformative works, regardless of the source material.

Yep. Does a running commentary count? Does critical analysis make it more or less if they show the whole clip?

I would argue no talking in a reaction video followed by commentary is not transformative. Why show the whole thing? Why not show clips that back up your analysis?

Games are a different beast. A lot of people, including myself, would argue that games, the moment they are played are transfromative, because no one can play a game the same way. There is so much choice in most games to define gameplay not as transformative, but the real question is by how much? How much does user input count towards making transofrmative work?

I think this all boils down to intent? Are challenge runs acceptable? Are playing horror games for the purpose of recording you're one reactions acceptable? Speed runs are played with the point of beating a game as quickly as possible. Does that count as transformative?

 

[Dascu]

I think the American 'fair use' clause is irrelevant anyway given that PDP is Swedish. Any legal analysis on the matter?

 

[KyanMehwulfe]

What about strategy games where the experience is different each time? Or RPGs where the player's build options could change the gameplay content for each player?

And you have games like Rocket League which might as well be substitutes for actual sports.

It's sort of semantics so I'm not disagreeing per se... But generally I think Let's Plays as a content experience are limited to some sort of 'linear progress' a la a story. So, you can Let's Play a Firewatch but live streaming daily No Man's Sky or Rocket League or PUBG aren't really what I'd call "Let's Plays." It's of course semantics and, I mean, you can 'let's play' any game, but I think generally they do differ from general multiplayer/sandbox/non-linear sort of live streaming/longplays.

It's also why it's hard to generalize the impact of live streaming 'entire game experiences' on the game industry. PUBG? Probably massively benefited from live streaming. Kane & Lynch 2? Game is probably better experienced as a LP anyhow lol. Firewatch in particular is another tricky one -- perfect game to watch a LP of rather than play, but also a small game that probably benefited from the positive marketing and getting the word out. Probably pretty hard to quantify the real impact though but at the very least you can see how it'd be more of a gray area for certain games.

Let's Plays in particular are a bit more difficult because they take a linear finite game experience and put its entirety online for free. That's a large portion of their value proposition. Compared to non-linear sandbox or multiplayer games, much less of their value proposition is hurt -- in some ways, it benefits.

 

[KarneeKarnay]

I think the American 'fair use' clause is irrelevant anyway given that PDP is Swedish. Any legal analysis on the matter?

As an American company I think you would have to deal with the US version or Fair Use. Idk I could be wrong.

 

[JonnyDBrit]

I think the American 'fair use' clause is irrelevant anyway given that PDP is Swedish. Any legal analysis on the matter?

To clarify/complicate this further, while he is a born Swedish citizen, he currently lives in the UK, hence I stated 'whatever variation of this concept may be applicable'. I'm less familiar with either Sweden or the UK's approach to the concept, though it must presumably exist in some fashion.

Plus there's the whole 'Youtube is a US company' argument.

 

[Nanashrew]

Developers shouldn't have to do this.

YouTube should step in and ban his channel.
They won't because he's a big money maker but hey ho.

One of the major issues. Who actually punishes PDP so he feels the consequences of his actions? He feels like he can get away with anything right now and he and his friend sang about that in the stream, that he's "got nothing to lose." YouTube isn't lifting a finger at all so that just puts other people into awkward positions where they feel they have to actually do something about it and PDP's continued and consistent racism.

And I 100% agree that YouTube actually should do something about it. If they're fighting hate and bigotry right now because they're catching so much heat from government about it, then PDP should be dealt with.

Twitch should also ban and whatever else too since this happened on their platform.

 

[NickMitch]

Fair Use is not a thing in Sweden.

We have what we call "Rights to Review" and "Rights to citation". But that doesn´t actually apply to internet - yet. Those law were written primarily for media companies and newspapers who operates under an extented constitution.

 

[dan2026]

The only way he'll get his comuppence if if advertisers turn against him and refuse to be associated with a racist.

So the best way is for people to make as big a stink about this this as possible so the big companies take notice and put pressure on YouTube to deal with him.

 

[JonnyDBrit]

Fair Use is not a thing in Sweden.

We have what we call "Rights to Review" and "Rights to citation". But that doesn´t actually apply to internet - yet. Those law were written primarily for media companies and newspapers who operates under an extented constitution.

The clarification is much appreciated, thank you.

 

[besada]

I think the American 'fair use' clause is irrelevant anyway given that PDP is Swedish. Any legal analysis on the matter?

He's broadcasting from England, onto an American company's servers. The owners of the content are from the U.S. Any lawsuit would likely take place in U.S. Courts. It doesn't really matter if he's Swedish.

Because the content is broadcast in the U.S., he's subject to U.S. copyright laws. Technically, Google, if ordered by a court to remove the videos, could choose to only remove them for an American audience. Of course, technically, he could also get sued in every single market in which he broadcasts, giving plaintiffs hundreds of chances to get a win in whatever country is most favorable.

The fascinating thing about the internet is that when you break laws, you tend to break a lot of them, because it's global and you're breaking laws in multiple countries at once.

 

[Nanashrew]

The Video Game Lawyer was talking today and will also have a podcast about this.

He meant Firewatch.

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

Also a lot of people seemed to like to bring this up in this thread about the blanket license.

Nope! Fully revocable at any moment with no notice required.

Gurg @CapnGregginz
Replying to @MrRyanMorrison @robot_congress
Sure you've seen the streaming statement on Campo Santo's website. Could this negate the claims since they gave open permission or no?

https://twitter.com/MrRyanMorrison/status/907041977887186944

Some more

There is valid copyright infringement taking place after they revoked a license due to his actions. Nothing illegal about that.

Console Gamer @consolegamr
Replying to @MrRyanMorrison @LoneVaultWander and 2 others
Genuine question: didn't Campo Santo admit they're DMCA'ing Pewds because of what he said in PUBG, not because he infringed their game?

https://twitter.com/MrRyanMorrison/status/907060990746828801

 

[NickMitch]

The clarification is much appreciated, thank you.

https://en.wikipedia.org/wiki/Right_to_quote

The concept of Fair Use is an american thing. Swedish (and most European laws) are written long before internet - and the process of new legislation takes a huge amount of time and effort due to research and the referral process. Also there is a lot of political stuff involved around digital content - and no politician is keen on this subject.

Mostly there are lobbyist organizations trying to push the agenda in their favor.

That said. As it currently stands. You can do basically whatever you want (stream games or even movies on youtube) but it is the content creators that must act to make you stop. And hence make the case. There are no policing other than the rights owners own capacity to act on their behalf.

The latest legislation in EU involves illegal streaming sites for movies. As it is a crime to host and even watch the stream.

 

[Dascu]

To clarify/complicate this further, while he is a born Swedish citizen, he currently lives in the UK, hence I stated 'whatever variation of this concept may be applicable'. I'm less familiar with either Sweden or the UK's approach to the concept, though it must presumably exist in some fashion.

Plus there's the whole 'Youtube is a US company' argument.

Sure, I think the DMCA is definitely applicable anyway given that we're dealing with an American company enforcing its rights for a violation on an American website.

Question is: can PDP (or streamers/uploaders in general) make use of their local law with whatever copyright exception that may have? In Europe, there is no 'fair use' clause. You only have a specific list of exceptions (listed here in art. 5), which is not even fully implemented in every EU Member State.

So the sub-questions are then:
- If PDP can use EU law (in this case, UK if that's where he's based)?
- Is streaming of video games even a violation of copyright in general, as it is not a direct reproduction?
- Can he utilize the review (art.5.3(d)) or parody (art.5.3(k)) exceptions (and assuming these are implemented in UK law)?

For reference, the Deckmyn judgment of the EU Court of Justice touched precisely upon this subject where a Flemish right-wing extremist political party used a comic book series for some propaganda purposes. The publisher rejected this use, and won the case, that the usage did not fall under parody. See also: http://ipkitten.blogspot.be/2014/09/has-cjeu-in-deckmyn-de-facto-harmonised.html

This relates to the concept of 'moral right' of the author, which is actually a bit absent in the USA but more common in Europe. It's sort of an unwaivable right of the author to reject any kind of use of his works when it would infringe his integrity (like political views).

Frankly, if this was a purely European case, then I think CampoSanto would be 100% in their legal right to block PDP from streaming their games.

 

[The Greek Freak]

Fair use is much more important to me than devs virtue signaling after a racist shithead does more predictably racist shithead garbage.

DMCA is already abused far too much.

 

[NickMitch]

Just have to say this:

We all are allowed to stream games until the developers say NO. After that there will be eventual legal stuff if anyone is keen enough to act against it.

EDIT: We have gotten ourselves into very deep waters if dmc:ing PDP means the end of a company. Who is the rightful owner of the original conent. Should my games and my company exist by the mercy of PDP and his followers - I SURE AS HELL HOPE NOT!!!

 

[besada]

Question is: can PDP (or streamers/uploaders in general) make use of their local law with whatever copyright exception that may have?

No, if you infringe in the U.S., then you're tried under U.S. laws. He could ALSO be tried under UK laws, German laws, Swedish laws, Nigerian laws. Any place this video landed, the creator can file a suit based on the country's laws.

Suits take place in the countries in which the infringement happens, which is everywhere the video goes.

 

[TatteredHat]

No, they should not. I understand the whole Firewatch thing but this would no doubt end up being completely abused by devs and big publishers.

Fair use is way more important.

 

[Maledict]

No, they should not. I understand the whole Firewatch thing but this would no doubt end up being completely abused by devs and big publishers.

Fair use is way more important.

So you believe that content creators have no control over their works being used to promote morally appalling things? You don't think the Rolling Stones should have been able to stop Trump using their song at campaign rallies?

 

[NewDust]

So you believe that content creators have no control over their works being used to promote morally appalling things? You don't think the Rolling Stones should have been able to stop Trump using their song at campaign rallies?

That's neither transformative nor Fair Use

 

[PsionBolt]

Some instances of circumventing copyright issues separate out the "transformative" element to try to cover themselves legally - for example, Rifftrax (MST3K successor) could make audio joke tracks to movies that you could play while simultaneously playing a legal copy of the movie. Or a lot of fan-translations of games will just provide a patch file that you have to apply to a game file but won't provide the game file. It would be difficult to do something like this for LPs, but it theoretically is possible - you'd need something to play the audio file as well as something that would ensure that the state of the game matches up to what the LPer was doing at every moment.

There are some existing examples of this kind of commentary in the TAS community. Their runs are always distributed as replayable input files, and there are some cases where commentary is either built-in to the input file or provided as a LUA script that runs alongside the playback. These are text-based commentaries, but audio playback is also possible using similar methods.

I don't think this is a viable course for LPs to take -- not if they want to maintain their insane levels of popularity -- but if it comes to that, you're right to point out that the Rifftrax method can be applied to games.

 

[Maledict]

That's neither transformative nor Fair Use

Content creators should have the right to deny use of their content to people or organisations who they don't agree with.

The notion that stopping racists making money off your games will lead to publishers stopping people reviewing games on YouTube or playing them on Twitch incase they critisce them is such a ridiculous, hyperbolic 'slippery slope' argument I find it hard to take seriously. Everytime that's happened so far the company has ended up worse off for trying.

If I as a content creator find my work being used by a virulently anti-LGBT organisation for a let's play, am I suppossed to be able to do nothing about it legally? Of course I should have a recourse to stopping this happening. At the moment, DCMA is the only way to do that and should be used.

 

[KonradLaw]

If I as a content creator find my work being used by a virulently anti-LGBT organisation for a let's play, am I suppossed to be able to do nothing about it legally?

If you gave them consent before? No, you shouldn't. At most you should be able to stop future content from being made. If you're worried who might use your product then be more carefull with giving out permissions to use it.

 

[Maledict]

If you gave them consent before? No, you shouldn't. At most you should be able to stop future content from being made. If you're worried who might use your product then be more carefull with giving out permissions to use it.

Consent can be withdrawn? I mean, that's a fairly fundamental and basic principle.

Plus it's not like they want money from him for this videos. They just want them taking down and him not to make anymore. Which is absolutely their right because they don't want their brand, company or game to be associated with racists and Nazis!

 

[NewDust]

Content creators should have the right to deny use of their content to people or organisations who they don't agree with.

The notion that stopping racists making money off your games will lead to publishers stopping people reviewing games on YouTube or playing them on Twitch incase they critisce them is such a ridiculous, hyperbolic 'slippery slope' argument I find it hard to take seriously.

If I as a content creator find my work being used by a virulently anti-LGBT organisation for a let's play, am I suppossed to be able to do nothing about it legally? Of course I should have a recourse to stopping this happening. At the moment, DCMA is the only way to do that and should be used.

Oh, I don't entirely disagree. I think there should be ways to remove content if they are maliciously used to promote hateful or otherwise unlawful messages.

But... Is Firewatch used to spread these messages, I don't think so (I don't know, I detest PDP). Then there is this recent lawsuit against Ethan Klein (hey, another youtuber I don't like) the reconfirms that Fair Use has a pretty big reach and is hard to break.

So while I stand behind Campo Santo and their endeavor to stop PDP using their content, I don't think they have the law on their side. Likewise I don't like the idea where other people/corporations arbitrarily can decide who can or cannot use their content even IF they are covered by Fair Use.

In short, digital law is still far to outdated to deal with these situations.

 

[spineduke]

The notion that stopping racists making money off your games will lead to publishers stopping people reviewing games on YouTube or playing them on Twitch incase they critisce them is such a ridiculous, hyperbolic 'slippery slope' argument I find it hard to take seriously.

At the moment, DCMA is the only way to do that and should be used.

Is it that much of a slippery slope when you're advocating it yourself because no other options exist?

 

[Maledict]

Is it that much of a slippery slope when you're advocating it yourself because no other options exist?

That's... not a slippery slope? It's using the tools at hand to stop something that shouldn't be happening.

Great if the law catches up, but right now if you're a content creator of course you have the right to stop racists and Nazis using your content to make money. Saying otherwise implies that content creators have no rights, and the fact they can suffer substantial damages by being associated with such people is less important that anyone anywhere being able to stream a let's play of their work no matter what circumstances or whatever they say?

 

[michaelius]

If I have content and you use that content to make money while using hate speech then you get fucked.

If you make money with my content and you just trash talk it then I have to stfu.

That's not how it works. If content owner has a right to denny usage then he can do it for whatever reason he wants.

 

[Maledict]

That's not how it works. If content owner has a right to denny usage then he can do it for whatever reason he wants.

This is literally a slippery slope argument. A bad one at that - we have decades and decades of evidence from other media forms that companies will get very pissed off at bad reviews, but they have absolutely no ability to stop such reviews (look at the rotten tomato furor last week!). Yet companies have had the power to stop their works being used by racists / Nazis / political causes they don't agree with for decades.

 

[Steroyd]

While I sympathise with exercising the right to not associate themselves with a racist asshole , that's not what the DMCA is for, it makes the developers no different than digital homicide and it should be on the platforms themselves like YouTube and Twitch to bring the hammer down if the personality isn't "ad friendly".