Streaming Other People’s IP: Are Streamers Any Good at Selling Games?

Twitch broadcasting lives in a bit of a weird space so far as intellectual property (IP) is concerned. While obviously I do not have any legal credentials to back this up, I think it’s safe to say that most gaming content that is broadcast is infringing. While this is open to debate, mostly centring around what constitutes fair use, I think we can find some common ground to say that we can establish a spectrum of gaming content from criticism (not infringing) to a standard Twitch broadcast (infringing). This is only to say that we operate at the pleasure of the owners of the IP we are working with. Fortunately, a lot of developers are reasonable about this and publicly state that they are okay with releasing content using their games, even if it is monetized, and enforcement of these IP rights is so lax that most streamers don’t even look for these disclaimers but merely assume that streaming the game is okay.

Suppose this were to change. What if one day IP notices were not sent out just from firms that were angry about a negative review, but major developers who decided they would no longer accept strangers profiting from their IP without asking permission and sharing revenues. One thought you’d be certain to hear constantly is “this is a stupid move on the part of developers. They’re getting free publicity for their game. They should be paying the streamers, not the other way around!” (Ignoring that some streamers are, in fact, paid to play certain games). This is a fictional scenario, but this sentiment has already been expressed whenever the topic of IP comes up in the context of a stream. I’m mostly interested in examining whether or not we are justified in making this claim. I can’t really make much headway arguing for a particular position (clearly I benefit from IP regimes that maximize my ability to protect my content while eliminating barriers to use others’), but I’m interested in seeing if our actions match our rhetoric, and if there are some lessons we can learn to provide better content to people.

Why IP?

IP is generally unpopular among right thinking modern digital travellers. Video game piracy may not be such a big deal as it used to be, but I’d hazard a guess that most of the people I know who are watching TV shows and listening to music are not paying for that content (in fact, even among the free content, measures are taken to even block advertising, though this is different from piracy). Most of the examples people will think of in terms of IP will be takedown notices, demands for compensation and just generally stories of the ‘big corporate interests pushing down the little man variety.’ Even the imaginary scenario above fits this to an extent because it involves a request for revenue sharing. However, it’s worth mentioning that there are many other reasons why someone might seek to obtain protection for their work and why they would enforce it.

I had the benefit of listening to a doctor who owns several patents who explained that their importance was not through preserving the profits motive to ensure innovation (a common argument you’ll hear in an economic discussion about intellectual property), but that its as the only means through which he could ensure that others would not attempt to manufacture the drug at a lower quality. While competition is desirable to bring down the costs of medication, in this case we are talking about a lower quality that potentially carries side effects that are harmful to people and would effectively kill the ‘real’ medicine if it was still going through certification and trials (consider the trouble a report that is known to be fabricated has created through its claim that there is a connection between the MMR vaccine and autism). Here the enforcement of IP prevents a drug from being unjustly condemned for the unscrupulous practices of others.

A patent case may not seem very relevant to the discussion of gaming, which would fall under copyright, but this at least puts us on the path to establishing that not all IP claims are driven for purely mercenary reasons (I am, of course, making something of a concession that mercenary reasons are inherently bad in the first place. Is a man not entitled to the sweat of his brow?). Let’s see if we can find something a little closer to home. Consider that (despite the present evidence to the contrary) I have some capacity to write, but no real artistic skills to speak of. Suppose I decide to seek out some exiting art to attach my words an ideas to. For the sake of illustration, I take a Penny Arcade strip because I’m a big fan, and erase out the speech bubbles and add my own script. Now here’s the trouble: let’s say I decide to write misogynistic, racist or just generally unsavoury ideas and put them in the mouth of Tycho, the ‘smarter’ of the two, then unleashing the creation on the world. I don’t know how the Penny Arcade guys manage IP issues, but I have every reason to believe that they would not be comfortable with the position I expressed using their content. Should they be able to request the ‘remix’ being taken down? If this seems far fetched, consider that until recently, it is the IP rights held by the government of Germany that prevented unauthorized editions of Mein Kampf from being published.

Here is an example where the ‘free publicity’ (let’s say, for the sake of the argument, that my imaginary Penny Arcade remix properly credits the authors for the original strip) the comic would be getting is entirely the kind they don’t want. Furthermore, it takes advantage of the recognition of their art style and the characteristics they have established over the years that the comic has been printed, namely putting the ‘smart’ idea in the mouth of the ‘smart’ character. By the construction of the example, this work is one that brings no benefit to the original creators and likely brings some harm through the association of their work with ideas with ideas they very likely do not want to be associated with. Here we seem to be able to draw an analogy to the patent case: The authors, presumably, do not like their ideas being expressed and do not want to have their work, or brand, associated with it. Here we can see a very sensible use of IP rights to take down the work and send a strong signal that they do not want to be associated with such ideas.

While it’s hard to argue that the status quo is ideal, it at least provides us some understandable motives through which someone might want to enforce IP rights, even if we may not personally agree with them (for instance, the same laws that prevented Mein Kampf from being published by seemingly anybody are also ones that are being used to say the Diary of a Young Girl by Anne Frank is not in the public domain) their use also isn’t completely inconceivable. We’ll now turn to see some cases where this may apply to streaming.

Streaming Someone Else’s Game

First, I should admit that many of the most concerning problems in the previous passages might be dealt with in something like the Twitch Terms of Service. For example, if I play Hearts of Iron as Germany, spouting neo-Nazi propaganda without irony, this will be banned. But this is not a particularly desirable solution either because the Terms of Service are selectively enforced, and does not place any power in the hands of the rights holder but rather the site on which the infringement is taking place. For example you’d likely think it a very strange conversation if you heard “My music is being played without permission and without compensation on your site.” “Oh, don’t worry about the infringement. We don’t like foul language so we were going to ban them for playing music with swearing in it.” Some (I’d argue most) rights holders are happy to support small projects by giving them permission to use their work, but I think all of them would prefer to have the option. Furthermore, this coverage is incomplete. There are different rules for different platforms, and it’s perfectly feasible for anyone to simply open up a stream on their own. The idea here is that even if we even address the worst of the ‘added-value’ streamers might bring to a game, relying on ToS alone does not really give creators a voice as to what happens with their creation after it’s released to the world.

But up to this point I’ve been dealing with broader principles and hypothetical (cartoonishly evil) streamers. Is there an example that I would have a reasonable chance of finding on a streaming site if pressed? There is one that is unfortunately common instance where a developer should be worried about the perception of the game: the stream is boring. Obviously you’re not boring, it must be the other guy, but the fact that there are so many unfollowed and unwatched streams on these platforms communicates that there are a large number of streams that are utterly failing to connect. Yes, some of these are simply trying to find their stride, and yes, there can be other factors affecting the viewership of a stream (likewise, being popular does not mean you aren’t boring. There are also well established casts that are cashing in on past glory), but there are low barriers to entry for streaming, and a lot of people who think there’s a fast dollar to be made playing video games in from too people. This is not a recipe for high standards in the average stream.

Before I go further, I’ll just clarify that I don’t think these streamers should stop, or that they shouldn’t make an effort (in fact, the majority would be improved if they started making an effort), and I am certainly not free from the accusation of being boring (“Play the game. What is this a talk show?” is not an unfamiliar phrase in my chat). But if we are going to make a general statement as to what a good deal it is for developers to allow streamers to use their games without their permission, then we should confront the fact that the quality of stream we’re thinking about is not representative of the majority of streams that will actually be using this access. If the claim is that unfettered access to a company’s IP is in their interest because of free publicity, then we should be sure that this is the kind of publicity that a developer wants.

This has a nice side effect of constraining the discussion to streams that are not specifically geared towards criticism or otherwise fall under unambiguous instances of fair use. It is not the developer’s right to silence critical views of their product. On the other hand, turning on a game and perpetually complaining about it does not constitute a critique (I have a particular big streamer in mind on a AAA title, but it serves as a general principle). More importantly, I think it is important that the product not be misrepresented either through overstating its benefits (shill reviews. My perpetual fear whenever I receive promo keys, because I am actually quite easily satisfied), or through underselling its strengths (ie. the ‘boring stream’). The former certainly is not short on attention, but the latter is equally concerning and receives less attention because it tends not to fall under our direct experience (companies aren’t going to pay unknowns for a shill review). And this is not a hypothetical, but rather a genuine problem I encountered when looking into a game I was interested in.

Buying Games Off Twitch

In a previous article I comment on how interesting I thought Satellite Reign looked but that I had reservations given that the reviews implied that a lot of attention had been given into creating an attractive product, but the gameplay left much to be desired. Now, having had the benefit of a full release, you can actually go into the Steam reviews and see a shift in public opinion (likely coinciding with a patch) where it ceased to be an ‘interactive trailer’ and held its own as a game. Having been disappointed with early access games in the past, however, I decided not to take the Steam reviewers’ word for it and instead decided to see what the game played like by going to Twitch.

There were not too many streams broadcasting it (which is probably a side effect of early access. The impulse to stream a new game isn’t exactly the same for a game you’ve already owned and played for months) and so I went down the list ordered in the same way Twitch orders them: by viewership. Lamentably, all of the English speaking streams I watched didn’t offer anything in the form of commentary. When they did interact with the channel/game it was practically monosyllabic. The challenge here is that while Satellite Reign is actually quite an exciting game, and has some tense moments while sneaking through compounds, it is not immediately apparent when you drop into the game without context. In fact you could be forgiven for thinking the game is quite slow at times given that missions tend to go best when you’re not detected, which means there is an incentive for planning and thought (none of which is communicated unless the streamer is actively participating in the broadcast instead of just passively playing a game while recording). I think this is a largely under appreciated element of strategy streams in that people familiar with the game may be able to appreciate strategic decisions made in and of themselves, but that to the average viewer, these streams are incomprehensible without context and explanation.

Now let’s consider this from the developer’s point of view. Here I am, a customer deciding whether or not this game is worth a purchase at near-full price (10% discount for launch week) and my purchasing decision now hinges on whether or not the game is appealing based on what I see from the streams I’m looking at. This may not be fair to the developer, as the appearance of someone else playing the game may not be representative of the experience of playing, but it’s all I have to go on. In the absence of another indicator, a stream is a nice way to get additional information and separate an overly positive view (marketing material), and the experience I’m paying for (unaltered footage of the game being played live). In this case we’re replacing an overly positive bias for the game with an overly negative bias for the game in the case of bad streams that are playing the game. It’s in my interest to be as objective as possible about these things (being overly critical denies me the ability to enjoy a game. Being overly understanding wastes money that could have been spent on something more fun), but the truth of the matter is that the experience of a stream is inevitably going to colour your opinion of the game, no matter how careful you are trying to disentangle the streamer from it. If the characters are just standing around, or meandering with seemingly no purpose, and there is no context for this behaviour, then they only reasonable conclusion I can draw is that this is a game with a lot of wandering around where nothing much happens.

This is likely most acutely felt in the case of independent games. If a new Battlefield game is released, or a WoW expansion, there is a substantial marketing effort behind it, and people feel compelled to have some kind of opinion on it (even if it’s “I don’t play WoW anymore, it was better in [insert expansion when person started playing]”). Trying it ‘to see what it’s like’ can very much be a reason for a purchase, and there is also a minimum quality threshold that these kind of blockbusters tend to hit (with notable exceptions). Like, I don’t know anybody who has played single player Battlefield 3, but for my money it was a pretty fun ride. Sort of like a summer action movie that you might have seen Harrison Ford star in. I’m sure a steady diet of this stuff might get dull, but I feel like I will receive some positive value from playing a big release, while there is literally no boundary as to  how bad an independent can be. AAA seem to compete more on “How much is this experience worth to you?” while indies have to compete on “Is this thing worth anything to you at all?”

It turns out that while independents certainly are the ones most in need for attention, but as a result, they are also highly susceptible to poor quality streams. If I had to make an estimation as to whether or not I would have enjoyed Satellite Reign based on what I saw on the 4 streams available at that time, I would have said it looked boring and that it probably was designed to rake in Early Access money with some fancy art and the wish for a good modern Syndicate style game. Here the ‘free publicity’ it received was decidedly negative and completely contrary to the actual experience of the game which his actually quite exciting and interesting. Fortunately, this wasn’t the end of the story.

Making a Decision on Satellite Reign

After exhausting my options with English streams, I noticed there was a streamer who tagged their Satellite Reign playthrough with [FR]. I had to take French in school and it is a requirement for a lot of government jobs in Canada (I also have some friends in Paris), so I try to get a little practice in by watching the French version of things. I thought Twitch might be a good opportunity for this as well, though my command of the language is very poor. The streamer was Elkinoo and his stream was an absolute delight to watch.

There’s a big lesson to be taken from here. I can’t claim to really know what’s being said on the stream a lot of the time, and can’t/don’t interact in chat a lot (although Elkinoo and his community are extremely friendly and accommodating, so I feel like I could participate a lot more), and yet none of these were impediments to enjoying the stream. Elkinoo is a remarkably friendly streamer, and has a degree of charisma that translates through things like tone and body language. What’s also noteworthy is that so far as establishing context for the actions (which I identified as a failing in the English streams), a French stream does not have the benefit of establishing this verbally given my weak comprehension. In addition to being a lot of fun to watch in its own right, it’s actually a good case study for English speakers simply because you get to see how other factors other than the direct words you say affect the entertainment value of the stream. For instance, I think Elkinoo possesses a delightful sense of humour and a wicked sense of comic timing, even though I wouldn’t classify it as a ‘comedy stream.’

Even despite my handicap of not being able to follow the full dialogue, I got a much better idea of what the game was about. It’s sort of funny how you can tell when a streamer is on a ‘okay I’m between objectives and let’s fill in the time’ part or in ‘alright, we’re about to take an objective’ part by their tone. He was playing the same game that the other streamers were, but I was able to see that any slowness I perceived in the game was more about the individual streams, and not a feature of the game itself. As you might expect, I wound up buying the game (and following Elkinoo. You should too!).

Streaming with IP in Mind

We live in a weird space so far as IP goes. I think that the failure of industries to adapt to digital distribution led to people adopting the piracy channels (Napster, Piratebay etc.) which has created something of a norm for piracy. The pendulum has somewhat swung back now that iTunes and Netflix provide digital alternatives for music and movies, but I don’t think it’s too controversial to say that there is a meaningful segment of the population that does not believe in paying for content still (of course, the availability of free content such as Twitch and YouTube also contributes to this, but I’m not entirely sure we have a truly free equivalent to Game of Thrones or House of Cards yet). While I may be misdiagnosing the origins, I think it’s safe to say that we do not put a lot of thought into IP considerations when we are producing or consuming entertainment.

In one sense I’m happy about this, because I think it’s better that we have innovative ideas and be able to implement them, but it’s not without its problems. If you left it to streamers, they’d obviously want to keep everything open because they live and die by their ability to work with other people’s IP. Twitch largely abdicates its responsibility concerning IP issues by adding a condition that streamers are responsible for obtaining the rights to the content they create (they are, of course, still happy to receive payment for advertising over infringing content, and would be shocked, shocked to find out if there was any infringement going on at their establishment). Twitch actually has a benefit from specialization regarding business matters and should probably be more active in asserting and establishing the rights of streamers (Twitch can hire better Lawyers to establish some general rule, rather than individual streamers working on their own account), but in the current state they really have no reason to do this. As a result, we’ll mute our VODs if we have to, not really care about whether or not we have the rights to the music on a live stream, and continue streaming a given game until we’re told not to.

Even though this is likely to be the status quo for the foreseeable future, I do think there’s one area in which an individual streamer can improve the way they handle other people’s IP. Ultimately it’s just simply to recognize that they are working with someone else’s work, one that almost certainly took considerable effort to bring to the market. In this sense it puts an obligation on us to show the game in the best light that we can. This is not to say we can’t criticize a game, or that we should misrepresent the quality of the product. Showing it the best light does not mean ‘skipping over’ weak spots in the game if I’d have played them normally, but rather we should do our best to be as entertaining as possible and show the game as it is. The game isn’t just a prop to be the butt of a cheap joke or a rant. If we put on a bad show, the consequence is not just felt in whatever hit to viewer/donation numbers we feel, but is also felt in the lost sales for the developer whose game was poorly presented, as was almost the case for Satellite Reign for me. As we saw above, larger games are less likely to suffer this as there are alternative streamers, but indies may never get another opportunity to show what they’re made of.

In the end, it’s a matter of recognizing the fact that we are profiting (even if only in a small way) from other people’s IP, and respecting the work by ensuring that we are providing some kind of added value in the form of commentary, skill, or viewer interaction.

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