The now infamous YouTube legend PewDiePie had quite a year last year.
Back in September 2017, PewDiePie managed to receive another DMCA takedown request.
This time the developers of Firewatch went after PewDiePie.
Because PewDiePie (again) used a racial slur.
Not only that, he used it in the middle of live streaming another video game title.
So why didn’t PewDiePie make the headlines that time around?
Well, he didn’t because of his profile.
There is one more reason though.
Even though Firewatch issued an official DMCA takedown request, the fact of the matter is that neither the game nor its developers were directly involved in the incident.
But let’s focus on what the incident represented.
It represented a rather rare instance in streaming.
For, perhaps the first time, we saw a developer asserting its legal right over its product.
And from that moment onwards, we continued to see legal issues arising between game streamers and game makers.
No one would like to argue the fact that video games are indeed the best form of interactive medium.
Despite that, recent years have given us a whole game industry that people such as YouTube streamer PewDiePie have grown and propagated.
Now we have hundreds if not thousands of video game streamers online.
In fact, now video game streamers publish their content on multiple platforms.
Twitch is the latest in the long series of online publishing platforms where streamers regularly attract audiences in the thousands via live streaming on the site.
There is also the hugely popular Let’s Play video series.
And then there are the other hundred types of video content available for free on YouTube.
Video games and video gaming have moved, or rather evolved, from things that players did alone in their homes.
They have evolved into something that people watch other people do on online platforms without actually interacting with the game.
Consequently, these online personalities and streamers have grown a lot in terms of their popularity.
But so has the very relevant discussion about rights of developers and rights of streamings.
Especially with regards to the actual content.
Does the fair use policy cover streaming?
Because after all, these YouTube content creators are making money off someone else’s product.
Some believe that the original creators of any and all games should have more say in issues such as how streamers use their product while streaming it to the public eye.
Then there is the issue of streamers sharing their profits that they earn from their streams with the developers of the game.
They have also encouraged them to stream more of their games.
And even earn from them.
On the other hand, companies such as Nintendo haven’t taken the same route.
In fact, Nintendo has now become known for viciously enforcing the company’s copyrights in areas such as streaming and live streaming.
Apart from Nintendo, publishers such as Atlus too tried to enforce a strict policy for others to stream its premier title Persona 5.
Of course, Atlus then had to bear the brunt of a huge pushback from the company.
Resultantly, the company changed its initial policy regarding Persona 5 streaming.
If anyone wants to dig into each and every side of the current discussion regarding games and streamers of those games, then one must cast a rather wide net.
The only problem with such an approach is that YouTube normally does not allow people on its platform to go on record.
The same goes for other streaming platforms such as Twitch which also has never liked to involve itself in such a debate.
But what about the developer side of the argument?
Wel, there too we have seen too much encouragement.
One of the handful of developers who have agreed to offer a statement is Camp Santo.
And they too have recorded a small one.
Regardless, they have actually supported streamers.
Apart from that, they also did not have to do anything with discussions surrounding games and streaming games.
This is also what most other developers prefer.
When reporters reached out to Riot Games for a comment, the company pointed reports to its official legal policy page.
Along with that, Riot Games added that the company had nothing more to add to the discussion.
Some Ars Technica reports did manage to talk to a number of streamers.
They also got hold of a lawyer to understand more about the legal side of the whole argument.
This was perhaps the best move.
Because this would allow Ars Technica reporters and everyone else to look and then understand all sides of the streaming situation.
This would also allow them to capture a rather complete picture of some, if not all, of the existing school of thoughts that are surrounding issues related to streaming content of video games via online platforms.
Moreover, this also enables everyone to talk about what the industry needs to do in order to change the situation as it exists in the industry today.
Regardless of the discussion or other issues, video game streamers will continue to work and pump out new videos as fast as they can.
The same goes for developers of these games as well.
No one can really stop developers from developing more games and more quickly either.
Even then, there is a slight uncertainty about the future of video game streaming.
Defining Relationships in Terms of Advertising
Let’s take a look at Naka teleeli.
Teleeli is a YouTube video game streamer.
He posted his first video on YouTube way back in 2008.
Naka has also posted gameplay videos of Wonder Boy: The Dragon’s Trap.
And in one of those videos, Teleeli made quite an effort to informatively present the history of the game and the series.
Only after doing so did Teleeli went ahead with his epic narration of Wonder Boy The Dragon’s Trap’s into text.
Most of the time Teleeli makes videos using the “Let’s Play” format.
This is basically a format where a YouTube streamer would play a game as usual.
But in addition to that, the YouTube streamer would also provide the audience with a bit of audio commentary.
Most of Teleeli’s videos follow this format.
But his main focus is on playing retro titles.
Sometimes he also posts videos on indie titles as well.
At the time of writing this report, Teleeli had managed to amass around 40,000 YouTube subscribers.
When Ars Technica approached him for a comment on the streamer vs developer issue he said that he did understand the legal side of the argument.
He actually pointed out that he considered the whole issue to fall in a rather big grey area.
Taleeli added that both sides had several legitimate arguments.
Including that basically, all the content that streamers showed actually belonged to the original perform who made the game.
Some say that the streaming community has done something transformative.
Teleeli reiterated his feelings that he honestly tried to understand both sides of the issue.
Because, according to Teleeli, developers made the content and hence own it as well.
At the same time, Teleeli told Ars Technica, he considered streaming as something transformative for the viewer.
Well, one of the reasons why Teleeli sees streaming as a transformative experience is that viewers who are actually watching the videos aren’t’ exactly playing the video game per se.
There is little doubt about the fact that the literal imagery that viewers are consuming may actually be the same.
In other words, one the face of it, both watchers of the game and players of the game as experiencing the same imagery.
But as far as input experiences go, they are very different.
Teleeli admits the fact that the whole point of video games is that people should play them.
If someone removes that and then adds something of his/her own on top, then that is a transformative experience according to Teleeli.
Teleeli says that streamers add their own commentary along with their own reactions and the way they progress through any given game.
They also react to any given situation within a game on their own.
And that reaction is unique to them.
Taleeli told Ars Technica that he thinks that is a very transformative experience if one really thinks about it hard.
Naka also believes, that one cannot consider watching a given Let’s Play video the same thing as someone else playing the actual video game.
Because they aren’t even remotely similar.
Playing a game on your own is vastly different from watching someone else do it on a screen.
But that’s just Teleeli’s opinion.
He views the two experiences as fundamentally different.
And Teleeli’s knows it.
While talking to Ars Technica he pointed out that most of the content that he puts up and people see, still belongs to the developer.
And both participants, viewers and players, are fundamentally seeing the same thing.
Hence, he understands both sides of the situation.
He told Ars Technica that personally, he held the opinion that the community had to hit some kind of a middle ground.
More precisely, a legal middle ground.
That’s, according to Teleeli, would be the best solution to the problem at hand.
In short, Teleeli considers Let’s Play videos as transformative.
He also considers them as something that is completely allowed.
With that said, even a streamer like Teleeli has his worries about some aspects of the streaming business.
Teleeli told Ars that if somebody had the time and the determination to put their mind to the task then they could easily get YouTube to take the channel down.
He also agrees to some extent that developers should have the authority over streamers.
And a legal right in order to control the gameplay footage of games that they own.
However, Teleeli does not seem to agree with how developers/platforms/viewers flag some content and why they do so.
Taleeli has also heard many stories about how people preferred to watch videos of certain games rather than buying and then playing the game personally.
But again, he doesn’t think that developers should count those people as lost sales.
Because people who made the choice of watching instead of playing probably would not have taken the pains to purchase the video game title in any case.
Interestingly enough, Teleeli also mentioned that he heard many people who told him that they had actually gone out and bought a particular video game just because they saw him play the game beforehand.
Therefore, if everybody saw that as a form of advertisement, then according to Teleeli it is a pretty nice deal for developers as well as streamers.
That’s why he mentioned to Ars Technica that he thought most open developers had actually started to work with streamers.
And they coordinated with them on how to make videos for their video game titles.
The more that happens, the better it would be for all parties involved.
Because, as mentioned before, Teleeli thinks streamers are actually people who are, in his opinion, working hard to advertise their games.
While talking on the subject of streamers, Teleeli thinks that content creators should work hard to be outgoing and friendly.
Additionally, they should also make sure that they keep a close control over streams that they have made with their products.
He also added that the biggest thing he wanted as a streamer was for things to stay the same.
Exactly how they are right now.
Along with that, he wants content creators and developers to simply cooperate more and show more forthcoming behavior.
Of course, there are other streamers who think that developers shouldn’t have much say in what a streamer says or what the streamer streams or the manner in which the streamer streams a content.
Instead, they believe that instead of developers stepping in when a streamer does something reprehensible, YouTube or the platform itself should come in.
And lay out the rules and regulations.
What Does The Law Say?
Streamers have the right to have an idea about what they do and how they make their livelihood.
That bears no impact on what the law is.
Or if the law will automatically come to their aid if something does go wrong.
Many lawyers, law watchers and legal researchers have started to keep an eye on questions related to streamers.
And how they stream content.
As mentioned before, developers generally tend to stay away from talking about the subject.
Lawyers though, are different.
Ars Technica managed to speak with one lawyer who had information within this realm in order to another, and legal, view on an industry that is fast becoming too complex.
The founding partner of Morrison/Lee (a law firm), Ryan Morrison told Ars that there were presently several schools of legal thought from both sides.
His legal firm specializes in topics such as,
Morrison told Ars Technica that he though most legally correct response (at the moment) was that most streams and Let’s Play videos were derivative works.
Hence these streams infringed copyrights if the streamer did not have a proper license from the developer or publisher of the game.
With that said, Morrison also added that streamers did have the opportunity to make a fair use argument.
But there is a problem with that.
When anyone tries to defend himself with the fair use argument then one essentially admits that he/she has infringed on a content.
The rest of the argument then becomes about the infringer trying to explain why his/her usage is not illegal.
Morrison also adds that it’s super expensive for anyone to prove.
Moreover, only the judge can decide if someone hasn’t crossed the line of fair usage.
The other problem is, to get the judge to say that, people usually have to spend six figures on all the required legal work.
Then there is the fact that a fair usage argument has no block or white lines.
Streamers can’t just come and say that it is okay for them to stream some games the way they want to.
According to Morrison, we should all keep that in mind.
Legally speaking, without the prior permission or a license from the publisher or developer of the video game, streaming is essentially infringing.
And that includes all those Let’s Play streaming videos.
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