Are Let’s Plays Fair Use? Probably not

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One of the world’s biggest gaming YouTubers, PewDiePie, is embroiled in yet another controversy – this time having let loose a racist slur during a PUBG stream. In a response he posted yesterday, PewDiePie, known to his mum as Felix Kjelberg, admitted he was a bit of an idiot.

“I should know better,” Kjellberg said. “I can’t keep messing up like this. You probably won’t believe this when I say this, but, whenever I go online and I hear other players use the same kind of language that I did, I always find it extremely immature and stupid,” adding that “I hate how I now personally fed into that part of gaming as well.

“I’m disappointed in myself, because it seems like I’ve learned nothing from all these past controversies. And it’s not that I think I can say or do whatever I want and get away with it. I’m just an idiot. But that doesn’t make what I said, or how I said it, OK.”

Firewatch

While it’s an earnest response, it rings a little hollow given how he’s apologised for the same sort of thing many times before. His outburst has unwittingly brought about another controversy though. In the wake of his racist outburst, Firewatch developer Campo Santo has filed a DMCA complaint – or at least suggested it would – to bring down videos that PewDiePie made of their game. It has people on the internet – content creators and their fans – eagerly beating the “Fair Use” drum. Many people believe that Let’s Plays and other gameplay videos fall under the specifically US legal doctrine of Fair Use, which broadly suggests that “copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work” is Fair Use and can be done without permission from the copyright owner.

Read  Firewatch developers take action after PewDiePie blurts out racial slur during stream

It’s kicked up a bit of a hornet’s nest, because it turns out that Let’s Plays may not be Fair use after all. Instead, videos of this ilk are more akin to permissive use, with developers and publishers having a secret, silent agreement with each other, as Let’s Plays are beneficial to both parties.

The laws around Fair Use go back to 1976 and don’t really have much context within the modern realm of video games and online video.

Says Bryce Blum of ESG Law, speaking to PC Gamer.

“The key factor for evaluating potential fair use is whether the creator has done something transformative to the original work. I think Let’s Play videos seldom, if ever, meet that standard. At the end of the day, it’s just someone playing the game within the exact confines set forth by the publisher and adding their commentary over the top.”

It’s a murky situation , but not something anybody really wants to test as Fair Use is established on a case-by-case basis. Each case would likely run in to millions of Dollars – and nobody wants to upset the status quo.

You may be of the opinion that Campo Santo co-founder Sean Vanaman is abusing the DMCA and its systems. As far as the legality of it all is concerned, Campo Santo is well within its legal rights to have PewDiePie’s video yanked. Says video game attorney Mona Ibrahim, writing on Polygon:

“But from the perspective of the content owner, Vanaman’s reasoning is irrelevant. You see, a licensor doesn’t need a reason to withhold a license. That also means that they can withhold a license for any reason.

In the case of a Let’s Play video, a content owner like Campo Santo would argue that they can revoke their permissive, non-exclusive license to stream (granted to end users) against anyone who uses their content in a way they find offensive, or in a way that associates their game or brand with something against their values.”

This is the approach Vanaman has taken. He doesn’t want his studio’s game associated with Kjellberg’s channel or content, which is, arguably, a perfectly legitimate basis to withdraw a license for which you need no legitimate basis to revoke.”

DMCA

You could argue that because Campo Santo, on its website, gave permission for content creators to make videos, that they’re reneging on that – but according to another prolific video game attorney, Ryan Morrison (via PC Gamer) “If a license doesn’t say ‘non-revocable,’ you can revoke it anytime you want.”

Read  YouTube, PewDiePie accept Campo Santo DMCA strike on Let’s Play

It’s an issue I’m split on. I can’t excuse or wave away Kjelberg’s behaviour, and I understand why Campo Santo would want to distance themselves and their work from the guy – but I also don’t like the (entirely legal!) idea of IP holders getting content removed because they don’t like the people (or their actions) behind it.   Could this be the beginning of a slippery slope? I suppose time will tell.

Last Updated: September 13, 2017

Geoffrey Tim

Editor. I'm old, grumpy and more than just a little cynical. One day, I found myself in possession of a NES, and a copy of Super Mario Bros 3. It was that game that made me realise that games were more than just toys to idly while away time - they were capable of being masterpieces. I'm here now, looking for more of those masterpieces.

  • Kikmi

    Well he said that he’s sorry so I guess its all ok now hey. *rolls eyes*

  • I keep calling the chap PewDewPie, because my head is broken. Fixed.

    • Magoo

      Hey, could you fix my head too? Please?

      • MonsterCheddar

        O.o

      • Kikmi

        +1

    • MonsterCheddar

      AHEM. *Coughs*

  • MonsterCheddar

    When will people learn? Geez.

  • MonsterCheddar

    If you want to play online and stream stuff, don’t be a dick.

    If you do the same stupid thing over and over and you are surprised at the same outcome, you are an idiot.

    Don’t be a doos, be lekker.

  • Kikmi

    On another note. Developers have been using DMCA takedowns to silence and otherwise censor criticism of their shitty games for years. Nintendo, Konami dont go as far as to DMCA content but they sure as fuck still abuse the system, on videos displaying their own advertised trailers and content. The thing with the devs from PUBG though, I think is solely in their right. If people are making money off of their product while using or instilling which ever behaviours the development house, has as a whole, does not wish to have associated, they should have every right to limit those who will have the ability to be an ambassador, using their product, for said ambassadors gain.

    This isn’t a contested debate. The fact hat hate speech was used (fragrantly if we’re being forgiving) and they do not wish for such a broad marketable and impressionable audience to be sullied by idiocy, why should they not limit the use thereof with force. Its their product. Simple as that. I dont agree that letsplays dont fall into fair use, its transformative at its base, however, hate speech being propagated whilst using software of said development house is therefore implicating the software company in practices that are likely to be heavily frowned upon within said companies core values and processes

    It does call for more up to date legislation and that falls on each countries constitution to enable or disable certain rights of use. THOUGH. Software houses and development studios need to put some legwork into developing a EULA that covers these events.

    How its not been implemented at such a late stage in the industry also boggles the mind. Its fine to chuck your toys out of the cot once someones done a naughty, but honestly, you as software providers and developers, did it not once occur to you that, sure having free advertising has its perks but, having the foresight and flexibility in your own fucking licensing agreements to have your right as owner of said IP to have agreements in place to be able to revoke access or rights to certain “power/opportunistic-users” in such extraneous events? Surely with the mounds of legal firms you have at your disposal, market researchers, influential critics at youtube itself, but yet you want to cry foul because someone did a naughty under your banner? You really only have yourself to blame for this type of shit (thats you as in the gaming industry as a whole)

  • Magoo

    Bring a twenteen year old up on memes and video games, then give him 50 million fans and the result could have been a lot worse. The guy isn’t an idiot, but he fucked up again. And there’s only so many times you can fuck up and say sorry.

    Hopefully this develops into a movement that can differentiate between “don’t want to associate with” and “didn’t get anything good from” because these laws are old AF. We need to level up. We need a patch, a hotfix. We need fair third-party publishing rights and restrictions.

  • I still don’t get how people make millions playing other peoples games…

    • Footballers make millions kicking other peoples balls… wait that doesn’t sound right

  • So basically everyone who spouted the “DMCA take-down is 100% illegal” was wrong. It happens.

  • Viking Of Science

    I’ve Been Following this intently since I started my Own Channel, And I’m really having fun making Multiplayer Let’s Plays. I Pray it can be sustained in the long run.

  • konfab

    ““The key factor for evaluating potential fair use is whether the creator has done something transformative to the original work. I think Let’s Play videos seldom, if ever, meet that standard. At the end of the day, it’s just someone playing the game within the exact confines set forth by the publisher and adding their commentary over the top.””

    For a multiplayer game that is certainly B.S given how the confines are set by other players as well as the publishers.
    Also it was ruled in the US, that criticism, over and above the content, is fair use. (In this case it was a non-profit critiquing a training manual, the non profit put clips of the manual on the internet for critique)
    https://en.wikipedia.org/wiki/NXIVM_Corp._v._Ross_Institute

    https://iplsrutgers.wordpress.com/2014/01/26/do-lets-play-videos-constitute-fair-use/#_ednref5

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