Copyright, free speech, and entertainment lawyers have mixed opinions on the legality of game developer Campo Santo's decision to fight hate speech with a copyright strike after reaching a breaking point with YouTube celebrity Felix "Pewdiepie" Kjellberg.
Over the weekend, Campo Santo co-founder Sean Vanaman said he would use the Digital Millennium Copyright Act to "cut off" Kjellberg "from the content that has made him a millionaire" after Kjellberg said the n-word on a stream while playing Battlegrounds (for which he apologised this morning).
Shortly afterward, Kjellberg's video playthrough of Firewatch disappeared from YouTube, although it's not clear whether he pulled it himself. (Vanaman declined to comment for this article.)
We're filing a DMCA takedown of PewDiePie's Firewatch content and any future Campo Santo games.
— Sean Vanaman (@vanaman) September 10, 2017
Freedom of speech is freedom of prosecution
His stream is not commentary, it is ad growth for his brand
Our game on his channel =endorsement
— Sean Vanaman (@vanaman) September 10, 2017
It was an extreme use of the DMCA and one that was pointed: Three lawyers Kotaku interviewed said that, contrary to public wisdom, developers and publishers can wipe out full YouTube playthroughs of their games in a lot of instances because many would not qualify as fair use.
But although Campo Santo's intention was to sever Kjellberg's brand from theirs, the lawyers disagree over whether the developer misused the copyright strike in a way that verges on censorship.
Game playthroughs exist in a murky legal territory already. The Digital Millennium Copyright Act is what gives copyright owners like Campo Santo the right to take action when someone's reproducing, distributing or displaying their work in ways that aren't kosher.
Reproducing virtually an entire game for viewers who do not pay Campo Santo to see it, even with commentary, could easily constitute copyright infringement, and yet an entire industry exists around YouTubers playing through and reacting to games.
There are no concrete answers to these questions of fair use, because no case like this has ever gone in front of a judge. There's no legal precedent.
Most developers have been supportive of these "content creators," including Campo Santo, which gives explicit permission on its website for anyone to stream or play Firewatch on video.
After all, these videos can drastically increase game sales; Crypt of the Necrodancer developer Ryan Clark told the New York Times that, after Kjellberg played his game, he saw a $US60,000 ($74,824) boost in sales.
But lawyers interviewed by Kotaku say that argument might not hold much weight in court, as there are often no contracts or written permissions granted by developers to YouTubers. (On the flip side, one could certainly argue that by giving out codes for their games to YouTubers, as Vanaman did for Firewatch, game developers are offering their own sort of written permission.)
"Technically, video game companies can issue takedown requests for any gameplay that is posted online and companies like Nintendo have done this in the past," said video game attorney Michael Lee of Morrison & Lee LLP, an admitted fan of Let's Plays. "Generally the more content used and the less new content added, the less likely it is to be considered fair use."
There are dozens of factors at play here, including the length of videos, the amount of commentary, and the type of game played. "I just have to point to substantiality of use," said Mona Ibrahim, a video game attorney with the Interactive Entertainment Law Group.
"The amount of content used [in a Let's Play] — the fact it goes to the heart of the game itself — is way in excess of what any court up until now has said is fair use. You use too much of the content for it to qualify for fair use."
One strong argument against YouTube playthroughs qualifying as fair use is the fact that, almost always, they are designed for profit. They are rarely for educational or research purposes. "The law doesn't necessarily favour Let's Plays. Are they for profit? Transformative?" Ibrahim said.
Columbia University's "Fair Use" checklist seems to corroborate that a playthrough like Kjellberg's Firewatch video is fair game for a developer to strike down.
Video game attorney Stephen McArthur, of the McArthur Law Firm, agreed that full game playthroughs are likely copyright violations but added that, "It's a grey area since no court has directly addressed the issue" and that "There are other factors to consider, such as whether the developer has ever made public statements on social media or their website granting permission to streamers and Let's Players," which Campo Santo did.
The truth is that, at least for now, it doesn't actually matter if Campo Santo's DMCA takedown was legal. No one's litigated it. Nobody wants to be the person to royally screw that beautiful and profitable harmony between video game developers and publishers and gaming YouTubers by setting legal precedent.
Over email last year, after news broke that a developer retaliated against YouTuber Jim Sterling after his negative review with a DMCA takedown of it, Sterling told Kotaku that "In order to fight a counter-claim, they would have to pursue it in court ... So far nobody's done that, as it's the point in the process where a developer actually opens itself up to any form of consequence — if they fail, the YouTuber can then take them to court and seek damages."
"Issuing takedowns is all well and good when the developer can remain relatively shielded from risk — no studio has yet decided it's worth gambling further."
In a recent video, Sterling said that when the same thing happened with developer Digital Homicide (a court threw out the case), "There was a lot of pressure not to fuck that up. . . I got manoeuvred into a situation where I could have set the bar for everyone."
These publishers' takedowns of Sterling's videos appear to be clear-cut instances of the DMCA used to censor a YouTuber, but his hands were a bit tied: It would cost a lot of money to litigate and there's always the chance things wouldn't have gone his way.
Vanaman told BuzzFeed News that he regrets using the DMCA takedown.
"Censorship is not the best thing for speech and if I had a way to contact Pewdiepie and take the video down, I probably would. He's a bad fit for us, and we're a bad fit for him," he said.
Vanaman's protest was meant to assert the importance of inclusivity in gaming, which is admirable, but as he admitted, it used tactics that shadier characters have used to censor negative criticism of their games.
For years, advocacy groups like the Electronic Frontier Foundation have warned that when the DMCA isn't protecting something, it can be misused to shut down dissenting opinions or criticism. And because a lot of the systems that process these requests are automated, like YouTube's, videos are usually removed automatically.
"It's used disturbingly often to censor content that someone doesn't like, to censor speech someone doesn't like, precisely because it's so easy to use," EFF Senior Staff Attorney Mitch Stoltz told me. "You file and email or fill out a web form and something disappears from the internet."
The attorney Michael Lee agreed, emphasising how easy it is to weaponize the DMCA for censorship: "The DMCA was created to let copyright owners stop the illegal exploitation of their work.
Now, many companies and people use it to stop criticism of the underlying content and stop free speech. The selective enforcement can be used against an owner." He added that because Campo Santo gave blanket permission for anyone to stream their game on their website, that could be used against them too, if it came to it.
Attorney Mona Ibrahim disagreed with these censorship accusations, arguing that the takedown request's legitimacy is a matter of licensing. The developer of a game is allowed to determine who plays it, she said.
"You're not going to licence your content to someone who puts that content in a negative light or who undermines the values you cherish as a studio," she said. Still, she acknowledged that a move like this could backfire.
"What Vanaman's doing here kind of is a form of public protest. I don't know if the way he's broadcasting he's doing this is in his best interest if he decides to do this legally."