Fair Use, DMCA, and Video Game Recording

Over the past several years, as gaming videos with commentary such as Let’s Plays, walkthroughs, and Twitch streams become more prevalent on the internet, the debate over fair use has become heated, especially in the face what’s perceived as more and more rampant content claims under the Digital Millennium Copyright Act (DMCA). While it has never been tried in court, video hosting sites such as YouTube have erred on the side of the companies that are claiming the content not fair use. Most of the time the offending content creator will get the claim expunged after contesting, since most companies will leave the claim alone and allow it to drop off after the hosting site’s period of review.

These DMCA claims are difficult for the content creator, who has to go through the time and effort to submit evidence that the claim is invalid under fair use and submit a review request. Simultaneously they are submitted to a lengthy process where the video’s most profitable days are either paid to the claimant or spent with the video unwatchable due to its removal. An overwhelming majority of these defendants have neither the financial ability nor the knowledge to defend themselves in the case of a lengthy court battle. If the fair use issue ever hits a court, the case would be far from a slam dunk for either side.

Protecting the Little Guys: Fair Use Doctrine

The Merriam-Webster Dictionary defines fair use as “a legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner.” This is a fancy way of saying that creators can use a portion of a copyrighted work, as long as the profits of the copyright holder are not diminished. The word “portion” is important.

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Let’s Plays are an entire play through of a video game. The amount of the “portion” of a copyrighted work has never been defined. In a court room you can be sure that defining that word would be one of the top priorities for both sides. It’s okay for some clips shown for the purpose of review or commentary. But showing the entire game, start to finish, is more of a grey area.

This leads to the next contentious phrase: “does not curtail the profits reasonably expected by the owner.” There is no solid correlation between streaming or recording games and lost sales. There also isn’t any solid proof that piracy leads to lost sales, although that doesn’t make piracy right. It would be practically impossible for either side to prove the existence of, or lack thereof, lost sales. Games with multiplayer modes would be less affected, but highly linear single-player games are at risk to lose sales.

Protecting the Corporations: The Digital Millennium Copyright Act

DMCA was originally a compromise designed to protect both the rights of a company and the consumers the corporation targeted. It collected and implemented two different international copyright treaties, making adjustments to the treaties where they had contradictions. It was signed into law in 1996 by President Bill Clinton.

These past few years several companies have found loopholes in the reporting processes of places like YouTube to almost do what they want with the law. This leads to anything from full takedowns of content they find questionable, to simply taking advantage of YouTube’s automated content ID to monetize content containing their content. There is no denying that, for all intents and purposes, this is the claimant’s right.

YouTube and other sites’ automation could be tightened up, leading to better coverage for obviously fair use content (for example: The Angry Video Game Nerd or Jim Sterling). But people who upload raw gameplay with some commentary (for example: Best Friends Play) will be operating in a legal grey area until the law is changed.

Court DMCA Fair Use
Hear ye, hear ye, court is now in session!

Court Date: Companies vs Content Creators—Defending Fair Use

How would this play out if it was ever taken to court? I’m assuming that each side has lawyers of the same ability, and each side has the same amount of money to spend (although, more than likely both of those assumptions would be an advantage for the plaintiff). This lets the case be seen with no crazy legal maneuvering or money running out either here or upon later appeal. I’m also assuming a jury, even though there may or may not be a jury in a civil case like this.

The defense, arguing the defendant’s use of fair use, would bring up the definition and the creator making a “transformative work,” trying to show with evidence that the defendant’s work changes enough of the original work to become its own new work. The plaintiff’s lawyers would point out that the alleged transformative work was an entire playthrough of their client’s game with only some commentary added by the defendant. This allowed watchers to see the entirety of the plaintiff’s game and now had no reason to purchase said game.

The defense would counter with the fact that there is no real evidence to imply that there was even a single lost sale, since nobody can prove how many sales be made if the defendant’s content has not been uploaded. The plaintiff would then implore the jury to look at the facts with some common sense, the more people watch their game for free, the fewer have any reason to spend money on their products.

Court Date: Companies vs Content Creators—The Plaintiff

The plaintiff’s lawyers would give the jury the most basic and laymen friendly crash course in copyright law, paying special attention to the definition of infringement. This would lead to a series of graphs showing what the company’s sales projections and actual sales numbers which would be less than projections. They would say this was proof of lost sales due to YouTube videos. This would be the huge push of the plaintiff’s case, and they would take however long they needed to make sure that the jury understood.

The defense would then argue against the points, and the two sides would essentially be at a stalemate.  This is where the talent of the lawyers that are defending the sides, and the money that each side could spend, would come into play. The goal of the defense would be to end the trial as soon as possible since the defense would have very little money with respect to the plaintiff. This lack of money would come into play in the lawyer choice, since the more lawyers are willing to pull some crazy legal maneuvers, the more the end bill is likely to cost.

The Verdict: Not Cut and Dry

The hypothetical outcome is influenced by several factors, none of them based on one side being right or wrong. First there’s the biases of those who decide the case, whether they are for or against big business, whether they believe in one side or another, or even just how convincing the lawyers were. Money, of course, would come into play, since a large portion of Content Creators that make a living making videos will have a fraction of the budget a corporation would have in a discretionary fund alone. There could, however, be a settlement if the corporation did not see the profit in a long, protracted legal battle.

So, the case is not so simple if viewing it from a legal standpoint.  Essentially, if both sides are equal, the verdict would essentially come down to a coin toss. No matter what the final judgement is, there would be a big legal precedent that would have far reaching consequences in the video game industry. Would a new, thriving industry be allowed to continue? Or would the old guard be allowed to continue with few changes? Until that day, the only sure thing is that the debate will continue for the foreseeable future.

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Jonathan Thornburg

Jonathan Thornburg has been playing games for almost 25 years, and in that time has developed a love for the Gaming Industry. He plays on the PS4 mostly, but can be found indulging in games from the past 25 years as well. He streams on twitch.tv/leftstick and uploads to youtube.com/c/leftstickgaming.

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