Copyright Revisited

I wrote a blog about copyright. I am happy with its content (perhaps not the style) but given the latest streaming controversy I thought it would be good to revisit the topic and make some ideas more explicit. Because so much of this topic deals with the recognition of an author’s work, I would like to acknowledge the work of Suzanne Scotchmer and her book Innovation and Incentives, which contains a useful primer on intellectual property law for non-specialists. It is a good economics text on intellectual property, and is available here (which is attached to an affiliate link for a good friend of my cast JessyQuil).

The essence of the case is this: A very popular streamer uttered a racial slur in anger towards a player while playing PlayerUnknown’s Battlegrounds. In response, Sean Vanaman of Campo Santo (developers of Firewatch) announced he would be using the DMCA to take down the streamer’s Firewatch playthrough and bar him from streaming any future Campo Santo games. The issue of the slur seems clear cut to me, but the copyright issue seems to be far less clear and of more interest to streamers and the public alike. The problem is further complicated due to the fact that Campo Santo appears to have a very permissive streaming policy on their website.

As is common in most copyright disputes, the doctrine of fair use is invoked with regards to streamed content. Furthermore, we are interested in whether or not the broad statement on Campo Santo’s website can be ignored or retroactively revoked due to behaviour in the present. The previous article talked about copyright as a means for authors to protect their work from infringement, as well as abuse through associations they do not want to have made. Here I would like to discuss the issue from the perspective of fair use and see if the consequences of Vanaman’s actions align with our intuitions when we first hear the story.

What is fair use?

Fair use has been in US law since 1976, but has been recognized as far back as the 1840s. It is intended to retain some public benefit from copyright which is by definition a restriction on the public’s access to a creative work. The Stanford page dedicated to fair use offers two broad categories: Commentary and criticism, and parody. More granular examples would include news reporting, scholarship, search engines, library photocopying, as well as parody, commentary, and criticism. Essentially there are some exceptional cases where copyright should not apply because they are in the public interest.

Congress has not told judges the objective of fair use, only four factors to consider in deciding whether or not a work is infringing:

  • The purpose and character of the use
  • The nature of the copyrighted work
  • The amount and substantiality of the materials copied
  • The effect of copying on the plaintiff’s potential market

To my knowledge, there has not been a court case to decide if streaming falls under fair use or not. While this individual case is unlikely to go before a judge and ultimately establish a precedent, we can examine for ourselves how closely our streams fall under these categories.

How does fair use apply to streaming?

I would like to reorder the list of criteria into what I think is the least complicated to the most complicated.

  • Amount and substantiality

While they are limited to a subset of all possible choices, let’s plays are as close as we can get to the entirety of a game being distributed online in a non-interactive form. This particular factor seems to be the most clear cut in the fact that ‘less is more.’ The less of the work you use, the more likely it is that you fall under fair use. The nature of streaming is that most, if not all, of a game is used in the creation of the content, and so I think that all of our work is ahead of us if we are attempting to base our fair use claim on this criteria.

  • The effect of copying on the plaintiff’s potential market

From the previous blog, we’ve talked about how not all coverage is good coverage. I am not a suitable candidate for an authority on this topic, but I can leave this magnificent twitter thread by @twittysuch as an example of what marketers think about streaming and its effects on the market. Her rather prescient thread anticipated the exact case that was the catalyst for this article. However, Vanaman did allow that the 5.7 million views potentially helped the game. It is possible that the specific video Vanaman issues the strike against may not run afoul of this criteria due to Campo Santo’s stance on streaming and his allowance that the video may have helped. Generally, streamers cannot rely on this being the case in their own circumstances.

The Stanford page cites Rogers v. Koons (960 F.2d 301 (2d Circ. 1992)) as an example of how works that are not directly in competition can still deprive a copyright owner of income. This case involved wood sculptures carved using a photograph as a basis without asking the photographer’s permission. The sculptures, which earned the artist several hundred thousand dollars, were claimed to be fair use due to the photographer not being a sculptor. The sculptures were found to be infringing as what mattered was the potential market for the sculptures regardless of whether or not the photographer had considered making them himself. This is an instructive case because so much energy is spent on talking about whether or not the experience of watching a streamed game is a substitute for the game itself or a complement. We often make distinctions between games like Firewatch (which tend to be very story driven and ‘movielike’ and so more prone to competing with the game itself) and something competitive like Counter-Strike (where the eSport component is a complement to the experience of playing the game itself and is usually enabled in client). It seems that we are having the wrong argument as this argument has failed to address the potential market that the law cares about. Developers seem well within their rights to claim that even though they develop and distribute games, streaming represents a potential market and so the work is infringing.

  • The nature of the copyrighted work

This is one of the most difficult to apply to streaming since the nature of the work refers to features such as whether or not the original work was fictional or non-fictional. Clearly video games that can be streamed are products that have been published (and ones that have not been released are not disputed when efforts are taken to remove the offending video). Fictional work is generally more difficult to copy from than non-fictional (from a fair use standpoint), but this seems to be a meaningless distinction in the case of games. What about a transfer between media: video game to live video? This is partially covered by our discussion of Rogers v. Koons above, but let’s consider another case that comes from Scotchmer.

During the run of Seinfeld the Carol Publishing Group published a trivia book called the Seinfeld Aptitude Test (SAT). The book contained references to the characters and quotes from the show without obtaining a license from the rights holders and the Carol Publishing Group was sued. Carol Publishing’s argument was that only minimal parts of the episodes were used and that more substantial use would be covered by fair use anyway. The court rejected both arguments, finding the trivia book to be substantially similar to the original work (the TV show). The fair use argument was rejected on the ground that it was not “transformative” which is the final category we will consider.

  • The purpose and character of the use

This criteria seems to lie at the heart and soul of most fair use cases and certainly is the most discussed when it comes to streaming. Does streaming have the tranformative aspect that we look for in the obvious cases of fair use? To demonstrate what I mean, consider the case of parody. Nobody can seriously claim that Spaceballs is infringing on Star Wars, or that Galaxy Quest is infringing on Star Trek. In fact, particularly good satire may go so far as to destroy the original work that it was based off of. This is a proud institution with a clear public benefit, and so I personally consider satire to be my favourite example (maybe even the gold standard) of fair use. It annoys the hell out of people and makes them want to stomp it out, and it’s very important that we not allow that to happen. Academic work is also a good example of a transformation, though for many of us it is a transformation from an entertaining product to a soulless, dry, scholarly artifact.

Our usual attempts to map these clear cut cases on to streaming is to point out the commentary of the streamer as enhancing or transforming the work. To use the phrasing from the Stanford page, a streamer’s commentary may provide “… new information, new aesthetics, new insights, [or] understandings.” As a streamer it is flattering to think so, and I do my absolute best to provide added value in my casts, both to differentiate my own stream but also to respect the game that I am streaming. Unfortunately, I am not convinced that commentary is simply enough.

There was a TV series that ran from the late 80s to the late 90s called Mystery Science Theatre 3000 (MST3K for short). The series consisted of hilarious commentary running over old B movies of highly dubious quality. While some accounts I have read attest to the films used being in the public domain, I recall some episodes were difficult — if not impossible — to get a hold of due to rights issues. Even though seemingly nobody would watch these films on their own merits, and the value of the work seemed to derive entirely from the cast’s commentary, a reasonable case was made that the rights holders of the original works should be paid. I find it hard to disagree with this line of reasoning, simply because I do not believe perceived quality should be a determining factor in the application of intellectual property law. Either I have produced a creative work and am entitled to its protection or not. I can entertain the possibility that the cast of MST3K was so hilarious as to transform these works to a point that would dictate fair use (as I think anyone who has seen the series would be inclined to believe), but it is also hard to argue that I am not letting my appreciation for the show affect my thoughts regarding its interaction with intellectual property law. I think it is commendable that MST3K sought the rights where it needed them, and by and large the format seemed to work. I am also encouraged by the fact that this kind of comedic alchemy was able to create value for otherwise worthless films simply because it creates an environment in which film financiers are more willing to take a risk on projects due to the ability to generate revenues from them (though there may be a perverse incentive to make especially bad ones that get showcased on commentary shows).

I give this example  mainly because few, if any, casters can ever aspire to the quality of MST3K, and so if they can’t claim fair use, I’m not entirely sure our commentary has any more hope. I can’t think of a single caster who can claim their commentary reaches the level of scholarship that applies for the academic transformation, and it would be absurd to argue that streaming provides a new aesthetic to a point that our work is described as transformative. Simply put, we’re not Joel and the bots, and we really aren’t adding that much to the game. We try our best, and we add value. In fact, a lot of developers seem to appreciate the work that we do. But even when I reflect on the best streamers I’ve watched, I really can’t say that they have transformed the game to a level where the streamer can claim to have created an original work that stands out as fair use. And more importantly, as the controversy shows, any claims that what we do is for the public good are highly suspect.

Should Campo Santo use the DMCA strike?

While my analysis above may be overly pessimistic for streamers, it is clear that there is a very difficult case to be made if streamers want to claim fair use. As such, we may want to move beyond whether or not Campo Santo can use a DMCA claim against the Firewatch video to whether or not they should.

I am genuinely torn by this. I think any developer should have the option to sever ties from public figures who can associate their work with views they find intolerable. Again, this is their property and they have every right to defend it. Of course, we are also worried that this can be used to silence criticism of a game. It seems to me that criticism is clearly covered under fair use, and that we have had means of informing consumers as to the quality of the game before streaming became a factor in purchasing decisions anyway. In truth, I’m doubtful that it would ever come to this, but even if it were, criticism is a place I’d be willing to plant my flag and say there is a strong case for fair use, which is why I have avoided discussing it here.

Despite how repulsed I am by the streamer who is at the center of the controversy (both past and present actions), I do find it hard to justify Campo Santo’s position here. In one sense, I find fault with their overly broad invitation for streaming. Compare the policy linked above, to Amplitude’s streaming policy. Amplitude’s policy goes down to the expected ESRB rating of the content on the stream. In this sense, it is hard to be especially sympathetic to Campo Santo’s displeasure at people’s streamed use of their product simply because this is a studio of veteran developers and it is not uncommon for studios to put restrictions or guidelines as to the conduct of the caster when streaming their games.

The biggest problem I personally have, and I suspect causes the most unease regarding this decision is the retroactive nature of the copyright action. The streamer’s content with regards to Firewatch was fine, and it was their behaviour a year later when streaming a different game that caused the problem. Again, the association is what’s important here, so even then it’s a grey area, and I suspect the battle lines are likely to be drawn largely around how much people like Campo Santo or the streamer. One might argue the onus is on Campo Santo to have done a better job of vetting who they gave their keys to, since this streamer’s current behaviour is not entirely out of character. Of course, a mistake in the past does not prevent its correction in the future, though if we want to hear their actual reasoning we need only look to Vanaman’s tweets.

Assuming we want to place some blame on lax vetting policies at Campo Santo’s feet, either in the form of the overly broad permission on their website or the willingness to ‘look the other way’ with regards to this particular streamer’s conduct, it’s important to remember this is a two way street. This streamer is a millionare from what they do. We have gone well beyond the realm of being a hobbyist, and with professionalism (even if only in name) comes paperwork. Their failure to get the proper permissions in writing is their own problem. Every other industry that relies on intellectual property has managed this, and virtually every public resource on this topic recommends that you get your permission simply and in writing.

The paperwork is what gives me hope. At the moment we exist in a wild west for intellectual property and most of our discussions have much more to do with our feelings and hopes rather than any sober evaluation of the facts. I am partially sympathetic to this simply because for most of us it’s a hobby and this is all it will ever be. But if we want to start taking this role seriously, and be taken seriously, then we need to start acting like it. This means checking for permissions before streaming things rather than relying on convention and goodwill. This means having to hear “no” when a developer does not agree with your vision for their project, or does not see the value in what you do. One day the free ride is going to end, and some will be better positioned than others to work in the new environment. There are certainly some content creators who are doing very well for themselves with some very liberal use of other people’s IP simply because the owners of that IP have not deigned to enforce their rights. So long as streamers continue to operate this way they will always do so at the pleasure of the developers.

Taking content seriously

Ultimately, while I can’t feel comfortable with Campo Santo’s position, this largely reflects how poorly streamers have positioned themselves. If your entire business model rests on one group not enforcing their intellectual property rights, then you are opening yourself up for a major risk that could come at any time. The next claim of this nature can come from anywhere. Consider that there was a fracas over a very popular trailer for The Last Night when one of the developers was revealed to have been involved (or at least supportive of) the gamergate movement. Suppose this developer, upon releasing their game, decided that any streamers perceived as ‘Social Justice Warriors’ would be subject to a DMCA strike due to disagreement with their views. The principles that enable us to approve or condemn Campo Santo should equally apply here, though I suspect there would be more (justifiable in my view) outrage in this imagined case.

So long as we continue to have these debates along ideological lines (that is “The streamer is right” vs. “Vanaman is right” based on our priors) I don’t see a resolution. As indicated in the previous blog that talked about this, I also don’t see Twitch using its resources to protect streamers’ interests when it comes to intellectual property either (their Terms of Service leave it entirely in the streamers hands to mange these permissions). If you are fine streaming at the pleasure of the developer, then you can simply continue as before and hope that they are not particularly ideological or, at least, are on your side. But for those who seriously want to consider making a living from streaming, we are long past the point where people can afford to ignore asking for permissions. Developers have put years and often substantial amounts of their own money to realize these projects. It is not just respectful of their efforts to seek out their formal permission to create content based off of their work, it is respectful of your own status as a professional content creator.


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