heres what happened : MSN
heres the publishers response :Firewatch creator vows DMCA retaliation against PewDiePie for racist slur used in stream - Polygon
MY question is sincethey apparently allowed him to use it in the forst place … can they used the dcma to revoke permission ?
Note theres a medium long discussion about it in the comments section of the second link that some say yes and some say no and it got me wondering about it …
The substantive question would seem to be whether a Let’s Play video falls under the Fair Use copyright exception. The fair use guidelines are deliberately vague, with the intent that the courts would rule on specifics. A Let’s Play video is certainly transformative, in that it is an entirely different category of work from the original game (a video rather than a game). It only shows a small portion of the original game, in that most of the game isn’t visible at all, and of what is in principle visible, a player only sees a small portion. It is for purpose of commentary or criticism. The existence of a Let’s Play video does not diminish the market for the original work, since you can’t do with it what you can do the original work (you can only watch it, not play it interactively), and the game’s publisher even admits in the complaint that videos have probably enhanced the market. All of these point in favor of fair use.
On the other hand, PewDiePie is profiting from the videos. That’s a point against him. Whether it’s enough of a point is for a court to decide.
Publishers routinely ignore copyright violations that help them. E.g. Mr Skin is ignored in the large part since the studios think that it somehow helps sales. The owner even brags that the studios send it new DVDs upon release.
PewDiePie was similarly ignored since they game makers thought that his streams would help with sales. (But small time people get threatened with takedown notices all the time.)
Now, there’s a problem. So copyright laws are used as a method to separate this company from PewDiePie.
Their IP, their call. If PewDiePie thinks it’s fair use, he can take them to court. It’ll be hard to find a responsible IP lawyer that would take the case.
As the others have stated, it’s somewhat of an open question as to whether a let’s play video infringes a copyright holder’s exclusive rights.
If it does, then it’s the copyright holder’s right to decide to let it go on or to put a stop to it, and even change his or her mind.
If the copyright claim is good, then the use of the DMCA is justified.
At first glance, however, the fair use argument in these cases seems to weigh in favor of fair use.
Why do you think so? His case looks pretty good to me, and there are many lawyers and public interest groups that will defend unsavory characters to hold the line on fair use.
They don’t use the DMCA to revoke permission, they revoked his permission by saying they revoked it, then used the DMCA to get youtube to take down the videos. I make the distinction because it’s only the method for taking them down that is part of the DMCA, the actual ‘can you make videos’ and ‘can they revoke permission’ don’t really have anything to do with it’s not all that relevant to the main controversy.
The publisher is claiming that “let’s play” videos (especially for-profit ones like PewDiePie) don’t fall under the “fair use” exemption in copyright law. Since they don’t, they’re free to give and revoke permission to use footage from their game in those videos. While they formerly gave him permission, they have decided that his racist antics are hurting the image of their game and humanity in general, and so revoked his permission. The reason is only relevant because they might have trouble if they were denying him permission for a ‘bad’ reason, like discriminating against a protected class ‘oh we don’t want a black guy reviewing our games’.
The counter-argument is that they can’t revoke permission to use the game in let’s play videos because such use of the videos is fair use, and so doesn’t require permission in the first place. I think this argument is on pretty weak grounds; let’s play videos are for-profit, and it’s a stretch to say they’re “commentary or criticism” rather than a performance using the copyrighted work. Commentary or criticism is usually for things like a review or a discussion of specific points in a work where you use the copyrighted material like a quote to back up what you’re discussing, this is a lot more like Mystery Science Theater 3000 where you play the entire work and react to it - and MST3K did not fall under fair use and had to license the movies they used.
In any event, makers of “let’s play” videos that don’t have permission have two options. They can give in and either let the DMCA takedown (which is basically like a cease and desist letter) happen or take down their own videos and effectively accept the ruling (maybe adding a rant that they think it’s unfair). Or they can challenge the DMCA takedown order, which means the publisher and LPer will go to court, where the LPer’s lawyer will have to argue and convince a judge that the LP videos fall under the fair use exception. Other people making LP videos don’t have to take them down because they still have permission from the publisher, any court decision would really only be relevant to them if a publisher later revoked permission.
Yeah, not sure why you’d expect it to be hard to find a reputable lawyer to take the case. While I personally think LP videos don’t fall under ‘fair use’, there’s certainly a legitimate argument that they do, it’s not a position that’s so absurd a lawyer could get in trouble for arguing it. He’s clearly not a nice guy but he’s not the kind of person that a lawyer cannot work with at all. And while he might have to pay the lawyer up front (and hope he gets legal fees paid if he wins), it’s not impossible that an organization or individual interested in copyright issues would fund a defense for him.
It is unlikely that other makers of LP videos would band together to fund a lawyer to protect him (making him a ‘test case’ for all of them), because his antics have generally pissed them off and hurt them financially. Usually if people want to get behind a test case they pick someone unimpeachable.
I’m following this thread with interest, but I’m afraid the two articles at the top were, IMHO, very poorly written, and especially the first one seemed to rely that the reader had some clue as to what was going on.
This is what I’ve picked up from the replies. Am I getting this right?
A could more elementary factual questions:
Did/can the creator simply ban the person from playing the game? Like, just use the ban-hammer so the guy can’t use the creator’s servers for online gaming?
Is there a user license agreement for playing the game?
Is the creator making the copyright claim specifically to have the content removed from YouTube, which AFAIK seems to err on the side of the IP creators? Or is the creator seeking to litigate on any posting of the gameplay videos?
I feel like I’m asking dumb questions but for some reason, part of this story just isn’t making sense to me.
Firewatch is a single-player game, and while EULAs can be pretty broad the idea that you can arbitrarily ban someone from playing a single-player game in their own house for something they said while playing another game entirely is more than a little controversial 
The game the Let’s Play guy (LP) was playing was online, but it’s a different game than the one that takedowns have been issued for. The Game Maker (GM) isn’t banning him from their game at all, they are banning him from using their copyrighted material to make money because they feel it hurts their brand and is bad for people in general.
The GM is claiming that they don’t give permission for the let’s play guy to use footage from their games in videos. Currently the videos are only on YouTube, and they used a process created by the DMCA to request that YouTube take the videos down. What GM have said is that LP has no permission to use their footage in his videos, and have taken the first steps in enforcing that claim. GM doesn’t have any justification for litigation if LP doesn’t fight the takedown and doesn’t repost the videos elsewhere. From their comments it appears that GM is willing to go to court if LP decides to post the videos again, but it’s not sensible to ‘seek to litigate’ at this point.
Oh, I meant to clarify this earlier but accidentally deleted it:
The guy who posts “Let’s play” videos makes money from advertising, sponsorship and appearance fees, and not a small amount - a while back his income was pegged at around $14 million per year. Part of this was a joint venture with Disney that included videos and mobile apps. But Disney cut all ties with earlier this year when it came out that he had been posting wildly antisemitic videos, like getting non-english-speakers to hold up ‘Death to Jews’ signs and having a guy dressed as Jesus say “Hitler did nothing wrong”.
So to be clear, this isn’t just someone making a few hundred dollars a month on the side, this is a full-time entertainer with a large business empire tied to his personal identity. And he’s not just a random guy who happened to have a video, it’s a big name in the gaming world who does this for a living. And the issue they have with him isn’t just that he used one racial epithet one time, this is the latest in a long series of him choosing to deliberately produce wildly offensive content to appeal to the more unsavory parts of his fanbase.
(Side note: it’s really unlikely that it ‘just slipped out’ because he’s not a native English speaker who might have grown up in a racist area where people casually drop n-bombs, he was born in Sweden and learned English as a second language, so had to pick up slurs along the way)
I guess a further question is - having given permission (implicit? explicit?) can GM revoke that permission after the video has been posted? Versus, say, denying permission for new videos. Can GM revoke permission for one particular poster, or would DMCA takedown imply they must take down all videos not only LP’s videos? I guess it depends on what the permission (if explicit) said.
Generally speaking, licenses can be revoked. That’s not the hard question.
But would a revoked license have any effect on derivative works that were created before the license was revoked? It’s hard to imagine that they could be, or making derivative works would become a horrible legal tangle.
Exactly. I presume it wasn’t a license, it was permission (or begnin non-interference). It it was explicit permission, it would depend on the wording - “you may use…” or “for now, you may use…” I presume the former does not contain a provision to revoke so therefore is a blanket permission.
If it was simply a case of not originally saying anything about the (mis?)use, then I guess the question is - can you complain about A using your material and not complain about B doing the same thing? Or must you revoke everyone’s permission?
These are the nits which lawyers turn into biting fleas.
Of course, the DMCA bypasses all this by having youtube take down the videos until the LP can show they have a right to use them. (via expensive litigation presumably? Or just a similar sworn notice?) Content carriers like YouTube have not typically made an effort to insert themselves in a rights dispute. IIRC, they are in fact obligated to take down the content unless/until the poster presents a similar notice that they own it. Not sure where it goes from there?
This is actually something I know a bit about, because I watch Leonard French, a copyright attorney on YouTube.
Let’s Plays are almost always not fair use, in Mr. French’s opinion. They are generally not transformative enough. They may have criticism in them, but the stated purpose of a “Let’s Play” is simply to watch someone else play the game. They do not have only the minimum amount needed to accomplish their criticism.
That said, most copyright owners view LPs as free advertising, and that not allowing them causes more harm than it helps. It’s not worth it to try and stop them, even if they might cause some people to not buy the game because they’ve seen someone else play it.
Some, like the one in this case, actually have a statement on their website giving permission Let’s Plays. This is an implied license to use the work. If Pewdiepie wanted to challenge this, that is what he would use, and claim Abuse of Copyright. And Mr. French believes he’d have a good case.
Sure, they can revoke the license for future works. But they can’t revoke the permission they gave in the past. This is why Mr. French suggests creating an actual license laying out all the restrictions ahead of time. (As he fully understands not wanting to have your product associated with racism and such.)
That said, Pewdiepie is apparently choosing not to pursue this. He deems PR of fighting back against this not to be worth keeping up his old videos. He has chosen to take down the videos. Fighting back would keep his use of the slur in the limelight even longer.
A license is just a formal way to give permission, I don’t know what you mean by “it wasn’t a license, it was permission”. It sounds to me like I agreed to loan you money, we wrote down that you agree to to repay it, but then you say “it wasn’t a contract, it was an agreement” when a contract is just a particular type of agreement. If a lawyer wrote whatever they permission they gave, it would certainly include the boilerplate ‘this can be revoked at any time for any reason’, though I don’t think there’s any precedent in copyright law that giving permission without specifying a duration means the permission is forever and irrevocable. Note that they’re not asserting that he did something illegal or sue-worthy by making the video initially or when he had it up before, they’re saying that he can’t use their footage any longer.
I’m also not sure why revoking permission is controversial, revoking permission to use copyrighted material happens all the time. Theaters, for example, only get time-limited licenses to play a movie and the fact that they played it last week doesn’t mean they neccessarily get to play it this week. And I don’t see why ‘if they don’t have a specific clause for revoking the permission that it lasts forever no matter how much Nazi stuff someone promotes with it’ would make a good law; it would just penalize the occasional startup who didn’t realize they needed to put in ‘we retain the right to revoke permission at any time for any reason’ boilerplate.
Others have already pointed out the difference between DMCA and copyright law, so I’ll answer the intended question: “Can the game studio revoke the permissions they granted to PewDiePew via the faq on their website?”
No, not yet, and possibly never (if the video is considered a “derivative work” and it was created while permission was granted, it retains that permission*). Title 17, section 203 of the United States code states that a grant of permission granted by an author may be terminated by that author “during a period of five years beginning at the end of thirty-five years from the date of execution of the grant”. Basically, 35 years after you grant permission, you have a 5-year window to withdraw that permission.
Notice of revocation has to be provided in writing at least 2 years, and not more than 10 years before the effective date of revocation.
*actually, it’s a limited permission, in that you can’t base another work off of the derivative work. So, if somebody created a video based on PewDiePie’s(PDP) video (and the game maker has withdrawn permission from PDP), that person would have to get permission from the game maker.
I don’t think they would assert that it is a derivative work, I think they would assert that it’s a performance of the work (or something along those lines) and argue from that point. Derivative works are things like making a play into a movie, not playing an entire movie/game and commenting on it, then selling the video of the work plus comments. I mean, where is the transformative aspect? It’s straight game footage with comments added.
Nitpicking. All lawyer stuff - actual contracts - would have a revocation or sunset clause. If for some reason one was not included, then it should not be breakable. (IANAL, not sure how to research precedent).
Basically, a contract is something for something. If I say “I will give you a million dollars if I win the powerball” that’s not a contract, and can’t be enforced. If instead we all buy tickets promising to share, I’ve given you something - the chance to win with my ticket - and vice versa, therefore we both got something out of the deal. A contract. Similarly, “cut my lawn today and I’ll share my winnings if I win” is also a contract.
Of course, I believe it was Sam Goldwyn who said “a verbal contract ain’t worth the paper it’s written on.” Without a written formal agreement, the exact terms may be in dispute.
I guess first of all, is a permission a contract? The player certainly gets something out of it - videos that make money. the argument is whether the “free publicity” is a consideration for the game writer. if so, it’s a contract, and therefore breaking it has consequences.
(Same as - if the movie distributor has allowed - contracted - the theatre to show the movie for 5 weeks, they cannot revoke permission - break the contract - earlier.)
So if the game author gave a permission with no option to revoke - well, fancy lawyers will eat up everyone’s profits deciding that one, and it’s a tossup what the judge will decide - so avoid court if you can.
They certainly can change the agreement for future videos, as mentioned.
I believe the argument for the video game being a derivative work is that the original is the whole game. In more complex games, the result in any one play-through could be completely different and complex. It’s not like Mario, where the same mushrooms and turtles follow the same path every time. So if it’s not something everyone can reproduce, seems pretty derivative. I’m guessing that’s up to lawyers.
Isn’t a performance an example of a derivative work?
And even in a completely predictable game (let’s say Dragon’s Lair, where a successful run always looks exactly the same), the video still isn’t the complete work. If I’m playing a game, I still have the option to go left instead of right. Even if going left means instant death, I still have the option, and having that option is what makes it a game. I can’t do that when I’m watching the video, and hence watching the video is not the same as playing the game, and hence it’s a transformation. And that’s before any of the added value from the audio track commentaries, which are a big draw for these videos, and why PewDiePie can rake in the big bucks for something that absolutely anyone could do.