Battle Royalties

You’re hanging out with your friends and take out your mobile phone to show them something. Before you can get to the site, one of your friends notices the carrier and proceeds to berate you for going with that other company that came after their own carrier. How could you support such a dishonest practice for a lower monthly fee or your preferred choice of handset? Their company was first! If we were actually talking about phones, this scenario would be incredible. Switch mobile phones with video games and this story is unremarkable.

The news is old at this point, but Bluehole Inc., the developer of PlayerUnknown’s Battlegrounds (PUBG), issued a statement later in September accusing Epic (who released a free to play Battle Royale mode for their game Fortnite) of copying PUBG and even implying that specific PUBG innovations may be ‘leaked’ (or could be in future). Game fans being what they are, battle lines were drawn roughly corresponding to people’s preferred title. There appears to be a general feeling that Bluehole was overreaching, and yet I notice a certain persistence in some fans to insist that Epic has done something wrong, and I think something has been missed in the overall discussion. As such, I thought it would be instructive both to examine the case itself, and why Bluehole seems to be relying on a fairly undesirable trait in the gaming community to try and push their claim.

The perceived case against Epic

One curiosity that has emerged from this controversy is that the consensus seems to have formed around what people think Bluehole has said, rather than what their press release and CEO has said. The perceived case seems to be that Bluehole believes Fortnite is infringing on some kind of property that they own and that they should be compensated by Epic for ripping off their game. This is not what is found in Bluehole’s statements but rather my estimation of what a casual observer thinks that this dispute is about. I think this may be why I’ve found the conversation around this dispute so unedifying. Both sides, untethered to reality,  launch into their respective dystopias where PUBG fans envision indie developers being perpetually screwed by big companies and Fortnite fans forsee a litigious nightmare in which all genres are reduced to iterations of some ur-game (Bertie the Brain if you go by Wikipedia) and any developer that dares create a game is instantly buried under a mountain of royalty claims. Why spend time discussing untrue claims? They seem to be fairly prevalent, and communicate a misunderstanding as to the role of copyright. I need to entertain the possibility that at least some people reading this may also hold these views on either side, and so this will hopefully clarify a few things and move the discussion into more productive territory.

If we assume the battle lines are not drawn around fandom for a particular game or developer, then the dispute can be seen between one that wants to ensure the rights of developers are protected, while the other wants to ensure competition in the market for video games. The rush to dystopia outlined above is likely a function of the fact that both of these are entirely reasonable values, and it seems that when we discuss it we spend more time making the opposing side unreasonable rather than recognizing that these values are not incompatible. We desire competitive markets for a number of reasons. All things being equal, they seem to be fair: Anyone with a good idea can enter, and people can decide for themselves, rather than having some external force dictate who is allowed to make things. They ensure the lowest price while simultaneously stimulating innovation for fear that a competitor may offer a better product for less. Acknowledging that at least some subset of readers will not be so enamored with capitalism (and a smaller business-minded subset will be even less enamored with competition), I will at least offer that competitive markets have been deemed worthwhile enough to set up institutions to ensure they continue to operate that way, and that a broader evaluation of economic systems is beyond the scope of an article about a tiff between two video games.

Can we have perfect competition in video games? No. And not because it only exists in textbooks, but specifically because games are virtually costless to reproduce. Once the game is made the expected outcome would be for the price to effectively fall to 0 as distributors of this game enter the market to capture some of the surplus. In addition to ensuring the creator receives the rewards for this product, there are a number of other rights we want to protect as well, as I’ve discussed in two other posts. This protection is copyright. Copyright is not intended to protect the profits of a business. At best, it simply ensures that whatever revenues emerge from the work accrue to the rights holder. Another way to look at this is the old saying that copyright protects expressions, not ideas. Copyright ensures that I cannot put a character like Wilson from Don’t Starve in my own game, or that I can’t make a survival game based on Clementine from The Walking Dead without getting permission from the rights holders. However, the protection is narrow enough, that I can have a cartoonish gentleman scientist named Wilfred in my game, and Telltale cannot prevent me from producing my own adventure game in a world overrun with zombies with an adorable child as a moral center.

Hopefully these examples are enough to provide some intuitions as to why this version of the Epic-Bluehole dispute is a non-starter since genres are not covered by copyright. This does not mean that we have to like existing copyright law, as its protections are quite narrow, novelty doesn’t appear to be a requirement, and it has done a very poor job of protecting developers such as Vlambeer when their games were cloned. However I’m not sure the dispute is over the current state of copyright law, otherwise we’d be hearing a lot more about it. Before moving on to what was said by Bluehole in their press releases, I’d like to talk a bit about previous cases in gaming to see how we have navigated this territory in the past.

Past cases

While I was dismissive of the ‘copycat’ case, this is a matter that has been before the courts. There is an unfortunate tendency in discussions about gaming and intellectual property to say a given topic has been untested in court. While this is often true for a specific complaint, there are often instructive cases we can look to. Ars Technica has identified two potential legal cases that relate to this issue, and I found their analysis of the Fortnite and PUBG to be in line with the impression I had gotten from watching Twitch streams (though I think the differences between the two games are more substantive and so think they overstate the similarities between the games). I am not especially convinced by their invocation of the Sega vs. EA settlement as Sega claimed to have a patent in this case (although it has certainly piqued my curiosity as to that patent) while most disputes of this nature do not involve patents. The injunction granted in the case of case of Atari v. North American Phillips Consumer Electronics (link from the Ars Technica article) is more interesting. A memorable quote from that case observes “it is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” In this case Atari was granted the injunction against a Pac-Man clone due to it capturing the “total concept and feel” of Pac-Man.

This outcome seems favourable to Bluehole’s argument, but it is important to remember that this case (and similar cases) are very much about the audio and visual components of the game and whether or not they are subject to copyright. Games are much more sophisticated today, and in the case of Fortnite and PUBG the one point of agreement seems to be the difference between the visual styles. When considering the ruling in favour of Atari, it’s helpful to actually look at the games.

Assuming that these look and feel rulings could be extended to gameplay, we should consider Capcom USA Inc. v. Data East Corp and Data East USA Inc. v. Epyx Inc. (there’s 6 years between these cases so I’m assuming this accounts for the difference in names). The Capcom v. Data East case concerned a claim of infringement between Street Fighter II and Fighter’s HistoryDespite the clear (and likely intentional) similarity of Fighter’s History to Street Fighter II, the supposedly infringing elements followed necessarily from the genre of karate fighting game and so were not protected.

These are not especially strong precedents for Bluehole as even if we were to move past the fact that all of these cases were about elements where there clearly is not a similarity between the Fortnite and PUBG, they would need to show how the areas of similarity did not follow from the battle royale genre. It’s already clear that one cannot copyright a genre, and so we’re left trying to establish that the allegedly lazy rip-off that is Fortnite somehow managed to copy something that was not essential to the genre (that is, they just copied the genre, but in somehow doing so they copied something extra that was not essential to the battle royale genre).

The actual case against Epic

Bluehole’s statements seem carefully worded to maximize on implications and put a lot of focus on Epic as the developers of the Unreal Engine. The original press release talks about their community’s “growing concerns” regarding the similarities in Fortnite (I don’t really think anyone heard about these concerns before the press release, but then, this statement could mean anything). Bluehole also says that Fortnite “… may be replicating the experience for which PUBG is known” which is more specific than “growing concerns” but isn’t especially concrete, and so hard to claim is protected. The specific issues that we can actually deal with are that Bluehole feels it is improper for Epic to make a competing game due to their relationship through their licence of the Unreal Engine, and that PUBG was mentioned in promotional material for Fortnite (presumably in reference to this video).

You may have noticed that promotional videos and advertisements often leave comparisons to “another leading brand.” When I saw Bluehole’s complaint, I had to wonder if this ad copy was a result of a legal restriction placed on mentioning a competitor, or if was because advertisers do not want to give any additional airtime to a competitor. The FTC have issued a statement on comparative advertising that answers this. Comparative advertising is permitted so long as it is substantive and truthful. This doesn’t provide us explicit guidance as it does not seem to be written with the scenario of ‘Help a competitor is saying nice things about my product and I want them to stop’ in mind, but it’s hard to imagine this complaint forming the basis of any litigation. Presumably Epic will be happy to comply with Bluehole’s wishes that they not mention PUBG in future, but I leave it to your own judgement as to how upset Bluehole actually is about all of this. The claim that Epic’s mention implies that Bluehole is ‘on board’ with the Fortnite battle royale mode omits H1Z1‘s mention in the same sentence and assumes that they are in a position to authorize such modes in the first place. Furthermore, Bluehole’s complaint that their players are misled to believe that they can play PUBG in Fortnite now does little to credit their players and is inconsistent with their other claim that they do not feel they ‘own’ the genre. In truth, I think very few players of either game know or care about the relationship between the two companies, and the statement seems tailored to the sort of person who does read up on industry gossip and is likely to take a stand one way or the other. To believe Bluehole’s claim requires that there are players who presently play PUBG, are aware that the developers licence the game engine from Epic, and then parse the sentence “At Epic we’re huge fans of the battle royale genre and games like PUBG and H1Z1…” in such a way as to mean ‘the developer of PUBG has allowed us to implement their game inside of Fortnite.’

In addition to the promotion issue, the relationship with Epic came up in the (not very clear) clarifying interview. C.H. Kim (CEO of Bluehole) believes that Epic should have talked to Bluehole  before embarking on their own battle royale mode. He also expresses concerns that a feature internally developed for PUBG could be “… leaked, or other things could happen.” This seems to be implying that Epic will steal source code from  Bluehole and release it as part of the Unreal engine, or otherwise make it public. If Epic does this then it seems that there are very clear mechanisms for Bluehole to seek redress, especially since they have been accused and convicted of the theft of valuable trade secrets from the game Lineage 3 and so have more working knowledge than most developers about this process. To the best of my knowledge Epic does not vet projects made using their engine and their audits are limited to financial ones in the case where they believe they are not being paid royalties. The most relevant sections of the Unreal Engine’s EULA seem to be 9 (Feedback and Contributions) and 11 (Ownership). These sections say that you keep your own code, but they are free to use any feedback and contributions you make (contributions being defined as “any code, whether in Source Code format or object code format, or any other information or content, that you make available to Epic by any means…” with certain restrictions). Bluehole is entirely in control of the code it submits to Epic, and the existence of Fortnite does not change this fact or the EULA. Simply put, if Bluehole thinks Epic is stealing their code, they should come out and say it, otherwise they are operating under exactly the same terms they were at the start of the project.

It is worth mentioning that Bluehole is not the only company under discussion that has been the target of litigation. Canadian developer Silicon Knights sued Epic for failure to provide a working game engine and sabotaging Unreal Engine 3 licensees. Other claims included a failure to meet a deadline to deliver a working version of Unreal Engine 3 for Xbox 360 developer kits, insufficient documentation, withholding improvements to the game engine, and using licensing fees to fund development of their own titles rather than the Unreal Engine. This case is interesting because it moves beyond implication, which is what Bluehole has provided, and claims that Epic has specifically been attempting to abuse its position when competing against licencees. Epic’s response to the suit was to counter-sue, effectively accusing Silicon Knights of stealing their engine. Silicon Knights had made something of a big deal over the fact that Epic’s mismanagement of their license required them to develop their own engine in house. As it happens, the engine Silicon Knights developed contained thousands of lines of Epic’s code, including comments (with typos), modified variable names, and the copyright notices removed. The judge declined to award Silicon Knights the damages they wanted (which included all the profits from Gears of War), and ultimately awarded over $9 million to Epic. Silicon Knights was ordered to recall and destroy all copies of Too Human and X-Men: Destiny (among other games that were under development and do not appear to have been released at the time of the judgement). The counterclaim muddies the waters quite a bit as the theft of the Unreal Engine is a bigger headline than whether or not Epic is allowed to compete with licencees, but so far as I was able to read, none of Silicon Knights’ claims regarding the crippling of the engine were regarded as legitimate (in many cases these seemed to stem from seemingly deliberate misreadings of certain deadlines), and no other developers joined their suit regarding the abuse of licensees.

When elaborating on Bluehole’s complaint I was surprised at how little substance there was to their position. The specifics of the complaint don’t change with the release of Fortnite’s battle royale mode. The statements are vauge and heavy on implication, which seems the only possible option when there is so little to go on.  But perhaps there is a moral case that has been sidelined in the discussion of the possible legal avenues Bluehole might consider. We will examine what could be considered a moral case before moving on to what I consider Bluehole’s true intention is with these statements.

The moral case against Epic

It is not a particularly good look to licence an engine to a game and then release your own version after it becomes successful. While I think Bluehole’s case against Epic is essentially non-existent, this post isn’t intended to be blindly pro-Epic. Nobody who has worked on a game really wants to see a competing product come out, though there is some consolation in the fact that this type of competition usually only comes after a title has been successful. But this competition will seem especially harsh when the company you are licencing your engine from enters that space and provides a free offering.

I think the optics of this decision are worse than the reality of it. Epic has always released its own games alongside its engine. Unreal Engine 4 is probably the most accessible version of the engine to date and there has been a concentrated effort to make a broader range of games with it. In addition, Epic has gotten out of AAA game development and is focusing on smaller projects that don’t require them to bet the farm with each new installment. With more people using Epic’s technology to make games and with Epic expanding its portfolio of games, it seems inevitable that there will be some overlap between Epic’s games and the ones that licence their technology. Of course, the Fortnite battle royale mode is not a product of random chance but a specific decision to implement a game mode because of another title’s success. The reason why I have such difficulty getting worked up about this is that I haven’t been outraged by any previous times Epic has released any of their own games. Epic have released plenty of First Person Shooters, including a free to play one, along with mobile games, MOBAs, and platformers, and people have continued to licence their engine for these types of game.

Is it the fact that the battle royale mode is in a different genre from what they normally do? Perhaps, but then, Fortnite is also different from what they have traditionally produced, and right now all battle royale games are different from their developer’s usual genre. Even if it were inside a more established genre, the question seems to be boiled down to: Can Epic pursue other lines of business given that it is the developer of an engine? It seems to me that we are best served when these kinds of rules and restrictions are in place to address some imbalance from the ordinary state of the world. For instance, we motivated copyright as being a means through which we can ensure creators have the means and incentive to continue to create in the face of an easily duplicated product. It is not clear to me what imbalance is created by Epic’s licencing of their engine. Developers licencing their engines is not a new practice, though the accessibility of these engines has improved tremendously. I don’t think there would be any particular uproar of Daybreak (developer of H1Z1: King of the Kill) opted to licence the ForgeLight engine to other developers despite the fact they would likely be competing with them. If we reverse the scenario and take a company likely better known for its engine now (Epic), the formula does not seem to change. That is, there does not seem to be any prima facie reason to restrict the lines of a business a game engine developer can enter into.

There also seems to be a tendency to think that Epic has made this decision from the top down, while I think the reality is that the decision to incorporate a battle royale mode into Fortnite came from the development team and probably only passed a layer of “we’ll be competing with a high profile licencee” at the top once they decided to implement the mode. This seems a lot more consistent with how battle royale modes have been developed historically. The original battle royale mode existed as a mod in multiple games, before being implemented into H1Z1, with PUBG being the first game to start off as a stand alone title. The popularity of this genre has led to the mod/alternative mode to be a dominant growth engine for most of these games, and Epic’s approach in adding the battle royale mode to an existing game is unremarkable compared to past implementations in this sense. Furthermore, I think gamers are largely underweighting the effort that Epic, or any other developer, needs to put in to implement a mode like this. The maps between the two games are substantively different, but in order for the constricting battlefield mechanic to work there should be no dominant strategy of going to a particular location (i.e. the whole map has to be balanced or it all falls apart). The construction of shelter is a genuinely interesting innovation to the genre, and the addition of traps is an element missing from existing battle royale modes that is present in the original inspiring material (the Battle Royale film). Discounting this effort is the same kind of thinking that leads to Reddit comments like “adding multiplayer is easy.” In some ways, it’s good that we’re not thinking about all the trouble a developer went through because we really just want to play the game. However, the fact that I think something looks easy should not give me licence to proclaim on what took effort on a developer’s part and translate that opinion into assertions as to what games they should be permitted to develop. I suspect the Fortnite team is being forthright when they say they love battle royale games, and that they thought that their interest aligned well with a clear demand for this kind of game. This is exactly the kind of thing we tend to praise in indies (make what they love, or what inspires them). I do think they came about this honestly both in terms of offering their own take on the genre and assessing it as being a good fit with their existing game.

When considering a moral case against Epic, I do think it’s worth considering the past behaviour of both companies. Bluehole appears to take a zero sum view of the battle royale genre. While I think it’s fair to say that they won’t be able to collect the same kind of surplus they did before the entry of Fortnite into this space, I also think they don’t allow for the fact that people playing the competing free to play game may lead to future purchases of their premium game (I speak from my own experience here where I did not consider buying PUBG but will likely try Fortnite at some point to see what all the fuss is about. I’ve gone from a 0 probability of purchasing PUBG to some slim probability I may find I like the genre and want to play more). I invite you to contrast Bluehole’s response to the dynamic between Chris Roberts and David Braben, designers of the seemingly competing games Star Citizen and Elite Dangerous. Epic does not seem to think in zero sum terms. It does compete with developers who use its licence, but it also funds its competition through the Unreal Dev Grants program. Unlike licensees, Epic has a vested interest in releasing the improvements it makes to the engine when developing its own games, and provides technical support for them. This is why it is not surprising that the announcement of the battle royale mode was followed by a series of related improvements to the engine. None of this has to be viewed as altruistic, but simply a function of the incentives that Epic faces as the licencor of a game engine. Epic’s business model seems to allow that encouraging the development of competing titles on its engine drives improvements and allows them to showcase successful or innovative uses of it. EA’s Frostbite and ZeniMax’s id Tech 6 engines do not follow this model, being used only for games developed by their respective publishers. As someone who plays more small and independent releases, I benefit more from developers that have access to high quality engines without being attached to a big publisher, but this also means that developers necessarily face a more competitive environment, regardless of whether the developer of the engine chooses to participate. In this light, Epic’s decision to implement a battle royale mode seems not only consistent with their past activity, and with the use of the Unreal Engine more generally, but with how past battle royale modes have been implemented in the past.

Bluehole’s strategy

While I have tried not to have a particularly strong prior when writing this post, I am generally more sympathetic to Epic’s case here. One reason for this is that I believe Bluehole is well aware that they don’t have much of a case against Epic and that their real intention with these press releases is to tap into an unfortunate and negative feature of gaming culture: a propensity to form self-righteous mobs.

It is hard to generate a lot of sympathy for a South Korean developer who has released multiple titles, including one of the biggest hits of 2017, and characterize it as a scrappy indie and so the interview with the Bluehole CEO contains a number of references to Brendan “PlayerUnknown” Green. The PlayerUnknown brand is what allows Bluehole to attempt to move from a fight between two successful businesses and instead reframe the discussion as “Hey, you could be the next PlayerUnknown. Epic is trying to screw you!”

The interview points out that Bluehole hired PlayerUnknown to develop the game and that the other major battle royale game, H1Z1: King of the Kill, hired him as a contractor to develop their own mode (which eventually became a stand alone game). This is an admirable decision, and I think it’s encouraging to have multiple instances of gamers who developed successful mods translate this success into careers (other examples would be League of LegendsDota 2and Ultimate General: Gettysburg). I also think this is an entirely sensible decision from a business perspective, since PlayerUnknown has the most human capital built up in this particular genre and was available for hire. While a sense of respect for PlayerUnknown may have been the motivation, it cannot be disentangled from the fact that Bluehole moved to establish itself as the first standalone offering of an emerging and popular genre. A large portion of their success can be attributed to being first to market with a viable standalone product, and hiring the person most familiar with this genre saves tremendously on time. Bluehole identified a gap in the marketplace and has been richly rewarded for it, but to reduce PlayerUnknown’s involvement down to an act of charity or respect is to understate just how essential he was to the success of the game.

What is smuggled into the conversation with this idea is that Bluehole “licensed” the battle royale idea from PlayerUnknown. The genre is not PlayerUnknown’s to license for the reasons that we have outlined above, and if Bluehole really did pay a license for the game mode that’s on them, not the other developers who are under no obligation to do so. Again, the implication here is that ‘unlicensed’ implementations of the battle royale genre are somehow denying PlayerUnknown (and by extension the millions of would-be PlayerUnknowns) an income. By focusing on the gamer turned developer, I believe Bluehole is attempting to poison the well for Fortnite and extend their nearly uncontested status in this genre through intimidating would-be entrants. If players were sufficiently outraged as to boycott or harass Epic (which was entirely plausible as  “Fortnite copied PUBG” is still an unprovoked comment you’ll see in Fortnite casts) then not only would Fortnite be eliminated as a competitor, but Bluehole would demonstrate that it essentially has a private troll army to frustrate entry into the genre unless they are paid a license. Not only do gamers lose out from the lack of competition, but content creators who simply want to play their game of choice are the ones who bear the brunt of such a mob.

While this is speculative, it is the simplest explanation to me why Bluehole’s statements on a subject that should otherwise be so clear are so heavy on implication. Epic has not stolen code, but Bluehole is apparently very concerned that they might. Bluehole hasn’t officially stated that they feel Epic should pay them a license, they only point out that Daybreak and Bluehole paid PlayerUnknown. An appeal to gamers’ tendency to form mobs is contemptible on its own, but doing so when the cost will be primarily be borne by people playing the competing game is unconscionable. Fortunately, it seems that a consensus has formed that Bluehole is trying to stifle competition, and that it is in gamers interest to allow a proliferation of battle royale games. I am happy to see this strategy fail.

Note on affiliate links: I have an affiliate status with GOG.com for which I am given a portion of sales for traffic I drive to the site. The inclusion of a given title is for illustrative purposes first, but when it is available on GOG I will provide such a link. Naturally I encourage you to do your own price comparison or buy on your preferred platform. I include, on occasion, affiliate links from other broadcasters to support people who helped me in a given post or the cast in general.

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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.

 

The Secret Reason Your Favourite Streamer Hates You: Backseating

Introduction

This article is the first in an intended series on ‘viewers behaving badly.’ I say intended because I am familiar with the frustration that comes from an author proposing a series only to leave it unfinished and so take David Kreps’ approach in his Microeconomics Foundations I: Choice and Competitive Markets: advertise the proposed series (a trilogy), fail to produce another (so far), but leave an escape route disclaimer of saying the series may never be finished (it’s also a very good and inexpensive micro textbook, though the math would probably turn off most readers here. Perhaps try a campus library if you live near a university). The reason I propose it as a series is because I would prefer these posts to aspire to more than simply ranting about behaviours I specifically get annoyed by, and instead address common threads that can be found among streams and address the reasons why certain rules exist. My ambitions for the series aside, any claims to objectivity will be undermined by the ability of long time viewers will no doubt be able to identify the catalyst for a particular article. In short: I hope to do more than just complain about my audience, but I don’t think it’s at all useful to detach myself from things I personally find irritating on stream.

Origins of the Term

While I’m not familiar with any history of the term, backseating seems to have its origins in the phrase backseat driver, a pejorative for unsolicited advice while driving. Unsolicited advice seems like the most basic foundation for the phrase as one needs no more than an understanding of the words, while the phrase backseat driving seems to create a little narrative to be filled in by the audience. Imagine teaching english to someone and having to define backseat driving, let alone backseating. The negative connotation is directly present in the term unsolicited advice, but potentially is amplified through the drama of the phrase backseat driving. Both cases are annoying, but backseat driving adds to it the active contribution of a distraction from an activity that should command the recipient’s (i.e. the driver’s) full attention.

Taken literally the term backseating makes no sense. There are few, if any, back seats to a stream and while one may rely on prior experience when explaining backseat driving, the term backseating requires familiarity with the term backseat driving to make any sense. I also think this term has grown to encompass more than its origins, and so I would like to mention some sister concepts that I think have been rolled into what we refer to in backseating. The term armchair quarterback is probably the most familiar, referring to a football spectator who mistakes their fandom for expertise and pontificates on what teams ‘should’ have done. A related term, armchair general, I thought had emerged from wargaming, but apparently goes back further (and at least according to Wikipedia goes back to Clausewitz, though doesn’t have a citation). Armchair revolutionary (indeed the whole set of ‘armchair ‘) and keyboard warrior express similar sentiments for amateurs who are fast to criticize without any skin in the game, though personally I hope that we might reinvigorate the granddaddy of all of these phrases and go back to calling them dilettantes.

Despite its older origins, I see backseating as a new coinage with its own specific meaning for what is a decidedly modern phenomena. It combines the unsolicited advice and distraction of backseat driving, the presentation of knowledge without substance of a dilettante, and the criticism divorced from the context of actual involvement present in armchair general.

Backseating on Streams

Each streamer will have their own policies for dealing with backseating, though a casual glance at a random draw of streams is likely to show that the activity is pervasive enough to be mentioned in the rules and that it is viewed as negative enough to be forbidden. I know of one streamer who has gone from a strict no backseating policy to being a little more open ended, a handful who have gone from being somewhat placid about backseating to being annoyed to outright banning it, and the majority I know forbid it outright. I do not have an explicit set of rules for the stream, though, for my part, consider backseating to be self-evidently unwelcome, the same way I would consider racism or harassment of other chatters to not require explicit rules (in my experience both as a mod and a streamer, a list of rules only invites attempts to litigate everything down to the simplest purge).

Despite my exceptional distaste for backseating, I don’t actually consider its motivation to be entirely negative in all cases. Furthermore, there is something interesting in the fact that backseating requires special mention in a list of rules, rather than having its own unspoken but self-evident social penalties like public flatulence. In the next few sections we’ll consider not just the positive and negative motivations for backseating and their effects on a stream, but also why this kind of activity has become pervasive enough to require special rules to be set up in streams.

Negative Motives for Backseating

We will begin with the obvious motives stemming from the original phrase backseat driver. The backseater wishes to assert control over the stream due to their discomfort with what is presently being done on the cast, their lack of faith in the caster, or their wish to be in control. There is little mystery as to why backseating is largely perceived as a negative in these cases because they involve taking control from a streamer, and an unfavourable assessment of the streamer’s ability to conduct their cast. While likely not a conscious motive, the backseater wants the attention of the audience and creative control over the stream without actually taking the effort to build it themselves. This attention seeking behaviour might also be motivated by the impression that they have a secret that nobody else knows (since the rest of the chat is presumably not backseating), and an overwhelming desire to prove that they know what these ignoramuses can’t seem to fathom.

What makes this particularly frustrating is that while driving can at least be justified through a fear of safety when the driver behaves contrary to the backseater’s wishes, no such fear of safety exists in the context of a stream. Furthermore, streaming almost always takes place on a service with a plethora of options, and so not only has the backseater opted into the particular stream they are interrupting, but they have any number of options available if they are dissatisfied with the stream they are viewing. Here, not only is backseating not just disrespectful to the streamer, but disrespectful to the audience through insisting that the content they are enjoying should conform to the backseater’s wishes, rather than the backseater seeking out entertainment more in line with their expectations.

The primary (or at least the apparent) motives for backseating then appear to be the negative ones: A desire to be in control or the centre of attention, a disrespect for others’ abilities or priorities, and a sense of entitlement that demands their whims be catered to.

Positive Motives for Backseating

Backseating does not always come with a nagging whine from the back of the chat to “play better.” It may also come in the form of seemingly helpful advice. Streamers are more or less expected to communicate throughout the cast and so  will likely discuss their frustrations or confusion at certain parts. This can be misconstrued as a request for help, much the same way that a greeting of “How ya doin’?” can be taken as a request for information. Even if a streamer does not verbalize their thought process, the mere fact that the game is not in a state of constant progress (or the player is on a losing streak or what have you) may be perceived as an invitation for ‘advice’.

My own feelings on backseating are manifestly apparent by now, and so it will not come as a surprise to know that I doubt the sincerity of most of these cases, though even I cannot deny that there are some legitimate misunderstandings. However, I have also been present for casts where a viewer claiming to have never have played a given game was displaying a tremendous insight into many solutions to puzzles they ‘just noticed’ after a few minutes of the streamer going through the level. Even in the case of a genuine effort to advance the game, I can’t help but think that the dominant driver in these cases is to display knowledge about the game, rather than a benevolent wish that streamers get through their content as efficiently as possible.

Another potential positive motive for backseating is an viewer’s desire to participate in the stream. Streaming is an interactive medium, and a large part of its strength stems from its interactivity. That said, these are the very kind of good intentions a famous road is paved with, and the destination is the same. Rather than sharing in the stream, backseating wrestles control away from the broadcaster. Interactivity is a desirable feature because it is a shared experience, and backseating violates this principle through attempting to take control.

The Impact of Backseating on a Stream

Having considered some of the motives behind backseating, we will turn our attention to the much more important matter of how it affects the streamer and the stream. The first and main consequence of backseating is distraction. The streamer is no longer focused on the game or the entertainment but instead must now deal with this interruption to the natural flow of thought. While it probably does not require elaboration, an analogy may be in order. Everyone has a way of getting ‘in the zone’ whether it’s absorbing oneself into a good book, delivering a speech, getting absorbed in music, trying to solve a tough problem, or getting into an exercise routine. It’s a unique feeling, not really appreciated in the moment (the lack of distraction or absence of self-awareness is key to me), but certainly recognized after its passed. Backseating is an imposition of the outside world on a blissful mental state that is difficult to achieve. The streamer’s mind is no longer juggling the game, the channel, and their presentation in harmony, but has had one of these elements disrupted, breaking the focus. More experienced streamers may find it easier to regain this state, or find it more difficult to be shaken by outside disruptions, but it remains an unwelcome intervention from the outside world into a state I feel is conducive to the best and most enjoyable casting.

In a related way backseating is disruptive because of its disrespect. There is likely to be a degree of variance between streamers’ egos, and so the disruption is likely to be negatively correlated with the streamer’s sense of self. Again, personal experience is likely useful here. I’m those who have had the misfortune of meeting me in person will say I have no shortage of ego, though I am secure enough in this fact so as not to be too bent out of shape if a stranger on the internet doesn’t think I’m good at a video game (notice, after all, they’re watching me, while they have only succeeded in distinguishing themselves through disrupting my content). That said, it is hard to shake a twinge of annoyance at the assumption you not only did not know the solution, but were so hopeless you required intervention. This feeling of disrespect is amplified through the fact no consideration is made to the fact that the streamer’s concentration is divided between the chat and the game itself, as well as the fact that the most skilled choices are not the most entertaining. My Crusader Kings II casts are a good example of this: I have hundreds of hours in the game (a majority of it, in fact, on cast), and while I think there’s always something new to learn, I feel quite confident in my command of the game’s mechanics. This is also a game that derives a lot of its magic from the emergent stories, and so my understanding of the game’s mechanics is coupled with a willingness to make sub-optimal but dramatically appropriate decisions (legitimizing a bastard when you have an heir is only asking for trouble. However, the resulting story of how you sired a bastard son through your son’s wife, legitimized the bastard, only to have him grow up and assassinate the legitimate heir to inherit the kingdom is worth the potential fallout). Ultimately, the best casts are where the streamer is sharing something of themselves with the audience, and so any backseating, whether its instruction in the game, or demands for a certain style of casting, digs at this personal aspect and attempts to hijack the effort. A viewer can take or leave the content, but should not try to subvert it for their own ends. Nobody has the magic formula for streaming success, and not every stream needs to be the same. Sometimes casters need to find their voice, and they are not going to be assisted through malcontents spoiling the fun for everyone.

Fundamentally backseating also strikes at the heart of what makes gaming enjoyable. While this is something of an old example, consider the controversy surrounding the estimated playtime of The Order: 1886. While there was some dispute as to the duration of a representative playthrough of the campaign, a consensus seemed to form that the game was short in duration, and that this was a bad thing. Concerns about quality adjusted playtime notwithstanding, there is a fairly simple observation to make here: people seem to prefer more of a game than less of a game. Obviously this is with everything else being equal, and there is certainly a point where a game can be too long, but it’s a lot easier to feel cheated with too little of a game, than disappointed with too much of it. Part of the length of the game is a function of how difficult it is. Most classic adventure games are quite short (I’ve run through Day of the Tentacle twice and did not need to split it over casts), but don’t feel short because of the process of figuring out the puzzles. NES games are another great example of this as the limited space on the cartridge means that the duration of the game had to come from something other than increasing the number of levels (which is why some of these games seem arbitrarily difficult). With very few exceptions there are supposed to be points in games that present a challenge and require some thought to get through. Denying the streamer the opportunity to solve the puzzle means the experience on display is not what the developer intended, it diminishes the streamer’s enjoyment of the game, and it also diminishes the stream’s enjoyment of the game twice over given that there is less content to experience, and the stream is no longer able to experience the streamer’s thought process through a difficult part of the game.

This is possibly the most important and damaging consequence of backseating. Streamers have access to the exact same information as anyone else and if they wanted to be told how to advance in the game they would either consult a guide or directly ask chat. A viewer that attempts to backseat not only diminishes the caster’s enjoyment of the game, but ruins the fun for everyone else who is watching. Given that some population of a cast will have arrived because they are interested in the game, it is safe to assume there are multiple people in a given stream who will know the information being communicated by the backseater. The backseater’s solipsism is not an excuse for ruining everyone else’s fun.

The Spread of Backseating

Why is backseating a problem now? Or, if it’s always been a problem, why does it seem so much more prevalent? First, both the appearance and the fact of increase backseating can be attributed to technological progress: Where we originally had to be physically present to backseat drive, communications technology have expanded our capabilities to be irritating to virtually anywhere. Likewise, because streaming can be so personal (the audience is invisible, and the streamer appears to be speaking directly to you), the backseater’s disregard for others is reinforced by the environment. Finally, through various fan wikis and forums, it is possible to gain any information about a given game at a moment’s notice. While the fact that someone can do this is unremarkable, the illusion of possessing knowledge seems to be preserved through the fact that nobody can see how someone got this information.

Beyond these surface explanations, I think there’s something a bit deeper behind backseating. Overall there seems to be a diminished opinion of experts across more or less any discipline. If you don’t like the results from your doctor you can go to another one, or even consult a website to self-diagnose. Don’t know an answer to a problem? StackExchange has got you covered. Need some trivia on history? Just go to Wikipedia. None of these options are inherently bad and, in fact, are likely edited or curated by experts. What the accessibility of these sites has done though is allowed people to replace the knowledge of how to solve a problem with how to look for someone else’s solution. In many cases this is replacing actual knowledge with the mere appearance of it. An analogy may be fame. Before photography, you had to be someone very important for others to know what you looked like (your face was on a coin, or images of you were widely distributed in various buildings like churches). Now photography is cheap, and easy, and it is enough to simply be famous for being famous. Given the seemingly limitless capacity for celebrities to offer opinions on matters of importance, we don’t seem to have lost this deference we give to the people whose images we see all over the place, but the barriers for entry seem to have been significantly diminished. Likewise, it is not especially difficult to express an opinion online, and the fact that one can do so seems to have created the illusion that one voice on the internet is as good as any other’s. In addressing the phenomena of fake news Obama offered that “An explanation of climate change from a Nobel Prize-winning physicist looks exactly the same on your Facebook page as the denial of climate change by somebody on the Koch brothers’ payroll.”

We implicitly acknowledge the value of experts through our consumption of the information they provide, but we want to receive the credit for disseminating the information. Just like it’s simple to download seemingly anything: a song, a game, a book, a movie, we are able to take just about any information and pass it off as our own discoveries. If I read a walkthrough for a game start to finish and play the game, I am going to feel like I am the one who beat the game, but I was simply the instrument through which the walkthrough operated. It is not the same accomplishment as playing from start to finish without assistance. Finally,  while good streamers make it look easy, streaming is actually fairly difficult to do (at least well). Of course, one needn’t go through the trouble of finding an audience and building a community, when any given streamer has already done this work for you. All you need to do now is demonstrate how much more you know about the game than the streamer through backseating and you can show how much better you’d be at the exercise if only you had enough time off from kicking ass at video games.

Of course, this type of expertise is an illusion, but it’s a powerful one. I can recall coworkers who genuinely felt that knowing they could find a solution to a problem was equivalent to solving a problem, and I think plenty of people online expect that their opinion should receive the same weight as a well reasoned argument simply because both parties are speaking the same language and are on the same forum. Our reward mechanisms are roughly consistent with these views: homework and reports are often graded on outcomes, not thought processes. Most online discourse is graded on how well an opinion aligns with the audience’s prior (sort Undertale’s negative reviews by most helpful for an example). The appearance of expertise is much simpler than obtaining that knowledge for oneself, and so much more effort is now expended in finding the biggest platform to display this false knowledge than obtaining the genuine article.

This problem is as old as Plato’s Ion (the bard who claims expertise on generalship due to his understanding of Homer), and yet now we seem to be taking Ion seriously. It’s never fun to admit we don’t know something, and yet it’s an important ability to have. It’s impossible to talk about this and not acknowledge the fact that not only is it possible to be elected President on the basis of being able to play a successful businessman on television, but the appeal towards a lack of experience is actually considered a positive feature to campaign for any number of populist candidates following in the wake of this outcome. Where politicians aren’t directly articulating policy that is ‘just like the average joe’s’ they are directly turning it over to the public in the form of referenda. These are representatives who, if they don’t possess expertise themselves, should at least be consulting with experts to make decisions turning that responsibility over to people who do not have access to this expertise. Even the news is reporting an opinion poll on everything, as if their job wasn’t to inform people about the facts.

In an environment where so many important issues have now been surrendered to seemingly anyone, is it any surprise that seemingly anyone feels entitled to instruct something as trivial as a stream as to how to do things ‘properly’? Backseating a stream allows the quick rush of displaying the possession of ‘secret knowledge’ in front of an audience who is clearly invested in the game you are talking about. But the ‘fame’ is as illusory as the knowledge. Nobody really thinks it’s impressive that someone in chat knew what everyone else knows is public knowledge. In truth, chat should, and likely does resent the backseater for taking away from their experience. The streamer resents the attempt to wrest control of something they’ve put considerable effort into.

Games aren’t fun as play by chat, streamers aren’t fleshy controllers to implement your instructions, and if the audience were interested in your gameplay, they’d be in your stream. This is why I feel the net result of backseating is so negative as to not even require articulation in the rules. But if I must articulate a position I’ve already primed my bot: “Support the devs, buy the game for yourself, and LEAVE THE STREAMER ALONE!”

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.

Talking on Stream

Whatever failings I may have as a streamer, one fairly consistent (positive) comment I’ve gotten has been my ability to keep talking. It’s easy for someone of my temperament to fall into a reflective ‘chicken or egg’ cycle regarding my format and my ability to talk, but if I’m honest with myself I can say that this is a quality I had going in, and just needed a mentor (in this case two, SeriouslyClara and JessyQuil) to bring it out. Earlier in my life I was very shy, and along the way set out to try and be a bit more outgoing. I think shyness is still a trait I have (I’m not crazy about taking photos, I don’t always go out of the way to introduce myself to new people. Limit it to the opposite sex and I half think I’m no better than I was in my early-teens), but I’ve managed enough to be able to do public speaking, and I can feel a degree of comfort speaking with people to a the point that I talk too much and now need to reign it in. That said, there are also a few imperatives created by my particular format that make a lot of commentary important. You can take a positive view of it and say that strategy oriented games with opportunities for pauses invite a more dialogue heavy style of cast, or a negative view and say that without a cam every minute without dialogue is an absence of any personality (easily the most important factor in any cast in my opinion). Given that other casters (Brotatoe’s guides come to mind, though personally I’ve not read them) have written their views on casting, I thought I’d weigh in on the one thing I have some credibility for. My verbose style probably limits the utility of this post as an actual guide, especially as I can’t resist the opportunity to editorialize, but I’ll do my best to section it off in meaningful ways.

Why Talk?

In some ways this seems apparent. Other casters talk, and I think it’s safe to say that most people begin broadcasting because they saw a channel that inspired them (even if it’s “Well I can certainly do much better than that systemchalk guy”), but presumably we can come up with a better motivation than “monkey see, monkey do.” Why would I want to be a second rate Arumba when I can be a first rate systemchalk? (For those seeking the origins of my streaming interests, look elsewhere. You good people let me know about Arumba after I was well into my broadcasting hobby.) We are on firmer ground when we consider that live streaming is probably the best interactive broadcasting platform (though by no means exclusively. TV has attempted far more innovation along these lines than people give it credit for) available to us, and we are social animals. Since the greatest strength of the platform is its interactivity, it is only natural that we would want to leverage the strengths of the personalities bringing us this content, and ultimately speech is the most effective way to accomplish this. People are communicating with you in typed words, you speak words back.

Interacting with a personality is not itself a major revelation, but what we should do is unpack exactly what that means so that we can put it under the microscope and find out why we are compelled by some broadcasters but not others. It also puts some boundaries on the discussion. For instance, this has little to offer an aspiring eSports professional who is likely going to attract an audience based on their performance on broadcast games (either in tournaments or on stream, though preferably both). Assuming there is no preliminary work that has already been done through success on another platform, what people know about you is due entirely to what you have spoken after hitting the ‘start streaming’ button.

Of course, there’s an even more fundamental reason to talk and display your personality: it’s entertaining. There is, of course, no obligation to be entertaining, but I am assuming that there are far less costly and technologically intensive forms of masturbation available. And if you’re not having fun, surely there are easier ways to make a living. I’m always looking for new ways to be entertained, and so I have to hope that the broadcasters I visit are as invested in my entertainment as I am. Having identified a motive for dialogue on stream, let’s think about the substance of what is said.

What do I Talk About?

The importance of founding the ‘what’ question on the personality of the broadcaster (again, interactivity being the comparative advantage of live streaming and so personality being the factor that best leverages this advantage) lies in its versatility. Our potential audience is anyone with a reliable internet connection, which means it is global and growing. It’s hard not to believe that there is an audience out there for more or less anything, though clearly some formats will be more popular than others. I don’t really think anyone can teach someone how to become famous. There’s an old quote that is at least attributed to Henry Ford saying “If I asked the customer what they wanted they’d have told me a faster horse that ate less.” This suggests that even if you were to simply poll the Twitch user base, the supposed insights of “Call of Duty is in this year” or “People really want tutorial style MMO PvP streams” are simply identifying past successes and so are basically like driving using only the rear view mirror.

Focusing on personality also forces you to answer the question: why are you doing this? The best way for me to approach this question is to answer it for myself. I can clearly remember from the start what my intentions were in streaming. Gaming has always been a social experience for me, and I tremendously enjoy sharing games with people, even if they’re not gamers themselves. Furthermore, I really like games that make me learn things. When I was little I loved Civilization and can remember being fascinated by all the reading I was doing in the Civilopedia. It’s no coincidence that Kerbal Space Program was one of the first games I streamed because it was a game that I not only enjoyed sharing the experience of learning the game, but was also one that was very subtly teaching me more about orbital mechanics than I would have thought. The learning dimension somewhat expanded because I also talk about my academic interests. People who know me in person know that this is not limited to my stream. These discussions come from a genuine love of these subjects and the enjoyment I get out of sharing them with people. As it happens, games provide a wonderful framework to take people from “God I hated X in high school/college” to “Oh wow, I never thought about it that way.” Clearly the success of this is not for me to determine, but these are the reasons I stream and they are broadly unchanged from the first broadcast, though I hope I’ve become more effective at delivering them.

What I hope this biography conveys is that, while I do behave quite differently when doing a guest appearance on another stream, the content that you see (or more appropriately, hear) on Mondays and Fridays is inextricably linked to me on a personal level. Ultimately, I feel the best commentary comes from this place, which is why I don’t believe in a success formula. People will always remain the core of this broadcast medium, and your dialogue is one of the best ways to interact with them.

Sometimes answering this question is hard. Because it is part of yourself that you will be putting into each broadcast, answering “Why are you streaming?” bears some similarity to the dreaded question “What do you want to do with your life?” It’s a very personal question that you’re dealing with, and it is one that deals with your aspirations and ambitions, which will then be exposed to the world which makes no promises to cherish them as much as you do. But failing to answer this question means that we, the audience, are simply interacting with some cartoon, or worse, nothing at all. Here we do well to remember Polonius’ final piece of advice son Laertes in the first act of Hamlet, “To thine own self be true…”

While this section could be condensed simply to ‘be genuine’ the commandment version does not offer much about the insecurities associated with such an action, and leave the reasons for its importance up to conjecture. But while shrieking at a jump scare is, pretty much by definition, genuine, reaction alone is not enough to properly convey personality through the stream. This brings us to our final topic.

How do I Talk on Stream?

I have to guess every streamer at some point has had to deal with the problem of an empty chat room. Another reason for centring this discussion around a personality is because it should make this problem irrelevant. I knew playing Kerbal Space Program I’d talk about my experience learning the game if nobody showed up or 100 people showed up. This is the active creation of content where the streamer is bringing something more to the table than their access to a gaming computer and broadband internet. This is my Kerbal Space Program, there are many like it but this one is mine…

It is a lot easier to cast to an active chat than it is to an empty chat. Partly it’s because of the support, and partly it’s because I enjoy the interactivity of the medium both as a broadcaster and an audience member. But with this in mind, I still try to be active in how I interact with chat. I’ll illustrate this difference between active interaction vs. passive interaction with an example:

Suppose I’m playing The Talos Principle. I wander around a level, unable to solve a puzzle. “Man, I’m stuck on this one…” Go around in circle again “This game is really hard sometimes…” Notice something different “Oh I think I’ve got the answer.” Flip the switch, move to another section, wind up where I started. “Nope that’s not the answer.” “Oh hey yoloswag420360noscopeblazeit, how are you today?” … “I’m good, just playing some Talos. This puzzle is really hard.” Continue through level. “Yeah, it is a lot like Portal. The puzzles seem a lot harder though.” Have a breakthrough, solve the puzzle. “Oh I get it now. That makes sense, I can’t believe I didn’t get it before.”

There’s a trick to analyzing this hypothetical streamer. First imagine a checkbox of all the traits you’d want in a good stream. Are they talking? Yes, sounds are being produced. Are they responding to chat? Yes, and mentioned someone by name. But can we really call any of this interactive, or really even content? Let’s consider an alternative.

Back in The Talos Principle at the same puzzle. “Alright strap in boys and girls, I’ve completely lost my mind here…” While going through the level “I tried moving the box here, doesn’t seem to be any better place for that. There’s a fan part over there, but it doesn’t seem to be good for anything at the moment… I feel like I’m missing something but we’ve been through this level twice… Hey yolo, how’s it going? Were the other 420359 noscopeblazeits taken?” … “Glad to hear it. This is The Talos Principle. I’m loving it so far, but this puzzle is about to make me self harm.” … “Yes, it’s a lot like Portal. You know how in Portal 2 you get bits of the history of Aperture Laboratories through audio as you go through the level? This tells the story in a similar way, though it seems very philosophical.” Same breakthrough solve the puzzle “Are you kidding me? I’m an idiot. Have you ever noticed that you almost never think to look up in games? I wonder why that is. Maybe it’s because the original first person games only made us look forward? Or the levels are designed with most things at eye level (maybe because the designers played first person games where you only look forward)? I don’t know, what do you guys think?”

Very similar situation. A lot of the dialogue is geared towards the game, and this is a scenario that pretty much any steamer is going to find themselves in at some point: a difficult point in a game where they can’t make progress. However there are a couple of important differences in the scenario above that makes it better ‘stream talk’ in my view. First, personality is conveyed through phrases like ‘Okay strap in…’, the corny joke about the 420360 in the name, or ‘I’m going to self harm because of this puzzle’ (obviously context matters in this case!). There’s no way to fake this, but I feel the more genuine a streamer is with an audience, the more these turns of phrase will come out naturally. In addition, the ‘filler’ while going through the level has the benefit of a systematic approach of conveying a thought process through a game. It’s sometimes hard to distinguish between just plain noise. “I am going through a door” is information we can see visually, while “Okay, let me double check what I have to work with…” is something that communicates why you are retracing your steps (and motivates why you’re going through a door).

But the chief difference I wanted to take out of these examples was the difference between a reactive caster and a proactive caster. The first example seems to have an absence of content. The comments on the game are largely already restating the obvious or what is present in the game. Interaction with the chat is reduced to waiting for them to give material to respond to. In the second example, the streamer is always bringing something extra. They don’t rest at simply saying they’re playing The Talos Principle or responding to the similarities with Portal, but instead talk about specifics. They don’t just make sounds in response to things that happen in the game, but they become opportunities to talk about things and possibly bring chat into the discussion. Every stream will have its own spin and so the discussion may not be about the game itself, but what’s important here is that there is something from the caster that is being added more than just noise.

In a reactive stream, chat needs to put the ‘token’ of a comment into the machine before they get something from the streamer (or sometimes the game will pay the token and the streamer will respond). The active stream doesn’t expect anything from the audience, and so is less costly for people to watch. The reactive stream really doesn’t rise above watching someone play a video game with occasional interruptions of noise. The person streaming is more interesting than that, and the people watching the stream are more interesting than that.

Conclusion

Talking on stream is by no means an easy task, but it’s one of the best things you can do to leverage the unique advantages of live streaming as a broadcast medium. Because of its interactivity, we need to focus on people: the person doing the broadcasting, and the people the broadcast is going out to. Because of the size of the potential audience there are nearly limitless options of things to talk about, but we may miss the opportunity to present them simply because we’re either unpracticed or nervous about people’s responses.

In the end, this can only get better with practice. Talk with friends, or at parties, or try to do some public speaking. Think about what you have to say, and your unique take on things. In the end, as a broadcaster, you are far more interesting to me than the game you are playing (which to me is just sort of furniture to a stream). Your commentary is one of the best ways to convey your personality and stand out, even in a crowded space.