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PewDiePie, Firewatch, and the Digital Millennium Copyright Act

It seems that in 2017, PewDiePie has been no stranger to controversy. Earlier this year, the wildly popular YouTuber found himself in some hot water...

July 21, 2019

It seems that in 2017, PewDiePie has been no stranger to controversy. Earlier this year, the wildly popular YouTuber found himself in some hot water after he made several videos that many considered to be anti-semitic. The videos in question wound up costing PewDiePie, real name Felix Kjellberg, his partnership with Disney-owned Maker Studios. Despite the severity of the jokes, many prominent YouTubers rushed to his defense, explaining that those jokes aren’t who PewDiePie really is. Still, the damage was done. After the recent attacks in Charlottesville, VA, Felix announced he would no longer make Nazi jokes, due to the severity relative to current events.

So for, PewDiePie has made good on that promise and his attention has been turned to other controversial phrases instead. Last weekend, during a livestream of PlayerUnknown’s Battleground, PewDiePie dropped one word that shouldn’t be in any gamer’s lexicon: the N-word. Since then, PewDiePie has issued an apology for his usage of the slur, claiming it was something he said in a heated gaming moment. Unfortunately for him, this time it may have been one slur too many.

Vanaman Responds

Sean Vanaman, the developer of the popular indie game Firewatch, decided he’s had enough of PewDiePie getting a free pass when it comes to making derogatory comments about groups of people. Vanaman stated, “I am sick of this child getting more and more chances to make money off of what we make. I’d urge other developers and will be reaching out to folks much larger than us to cut him off from the content that has made him a millionaire.” He then went on to make it clear that he no longer wanted Felix to play his games on his channel, including past and future releases.

Vanaman further went on to state that he would be issuing a DMCA complaint against a video that PewDiePie had previously uploaded in which he plays Vanaman’s game. Shortly after that statement went out, the video disappeared from YouTube, though it was unclear if this was due to a DMCA takedown or something else. Felix himself has since confirmed that he initially made the video private out of respect to the developer, but that a copyright strike has since been issued.

This event has triggered quite a strong reaction on all sides, with Firewatch getting bombarded with negative reviews in the wake of Vanaman’s actions, which some are claiming to be censorship. Some people have come to Felix’s defense, admitting that they too have made racially or sexually offensive comments in the heat of the moment. Regardless, it is never right to use that kind of language in any context, up to and including, when gaming online.

A Legal Right

A bigger question that many have asked is whether or not Vanaman had a legal right to do what he did when he issued a DMCA takedown on the Firewatch video in question. The answer to that is a bit involved, but the short version is yes, to an extent.

In the FAQ section of the Firewatch website, Vanaman gives gamers a blanket license to play the game on streams and monetize videos of the game. A key part of this section, though, is that it doesn’t say this license is non-revocable. What that means for Felix is that while he does have the right to monetize videos he makes featuring the game. At the same time, the game’s developer has the right to revoke that license at any time, and for any reason. In an article on PC Gamer, attorney Bryce Blum said, “Publishers can revoke the license for any reason in their sole and absolute discretion, and there is nothing in the DMCA that requires consistent enforcement on the part of the IP holder…”

While Vanaman had every legal right to do what he did, PewDiePie still has the option to contest the takedown or he could fight it in court if he so chooses. If this were to go to court, it’s questionable how it would play out. Despite Let’s Play videos being something that developers can contest, citing the PUBG stream as the reason for the takedown may not hold up as well. Either way, PewDiePie now needs to be careful.

“It’s a pretty big deal…”

Because YouTube accepted the takedown on PewDiePie’s Firewatch video his channel now has a strike against it. Much like baseball, the YouTube game is played by the ‘three strikes and you’re out’ rules.

“If I get more than three of them, my channel will shut down,” Felix said when addressing the strike that his channel now has. YouTube’s policy is pretty clear cut and incredibly hard on copyright strikes:

“If you receive three copyright strikes:

Your account will be terminated.
All the videos uploaded to your account will be removed.
You won’t be able to create new accounts.”

Sean Vanaman has called on other developers to also go after PewDiePie because of what occurred and if two more of them issue takedowns on videos, he could find himself out of a job on YouTube.

When addressing the issue, Felix did mention what many articles I’ve read on the subject have failed to mention:

“I think these laws are important to protect artists’ work and protect what they do and that’s why I think it’s really dangerous to make these sort of claims and do these sort of copyright claims for no real valid reason.”

While I can understand that Vanaman wanted to distance himself from PewDiePie and his derogatory comments, he didn’t have a written agreement of any kind with the star. In PewDiePie’s deal with Disney and Maker Studios, it’s more than likely that he had a ‘morality clause’ in his contract, giving the studio an easy out if any lines were crossed. Vanaman didn’t have anything of the sort and merely chose to DMCA as a form of censorship instead.

Impact on the Future

During all of this, YouTubers have gotten to talking, not about how PewDiePie isn’t a racist, but rather about how this affects them. The gaming community on YouTube, as a whole, has been a bit of a disaster area for anyone who makes a living from it. PewDiePie’s comments earlier this year, along with extremist content posted to the website, has already caused many advertisers to back out on various content that they deem inappropriate.

Naturally, as with almost anything on YouTube, this has been spotty at best. The upcoming Call of Duty: WWII has had videos flagged as ‘non-advertiser friendly’ due to the violence contained in them, while other videos about the same game have had ads plastered everywhere. But now every gaming YouTuber is worried about how Felix’s actions will impact them and it’s a very real fear.

With Vanaman’s DMCA strike being accepted by YouTube, that gives other developers an open door to do the same, if they so choose. It’s everyone’s hope that more developers won’t follow suit and go after other channels, but that perhaps others will take a cue from PewDiePie and not make the same mistakes that he did.

How do you feel about the PewDiePie and Sean Vanaman saga that has occurred over the last week? Let us know down in the comments below!

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