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Blog Post #9: Gaming on YouTube and Fair Use

              The topic of Chapter 13 is the issue of copyright and fair issue in free speech. One of the topics of interest that caught my eye was the enforcement of copyright law in cyberspace, especially in regard to the Digital Millennium Copyright Act of 1998 (DMCA) and the Online Copyright Infringement Liability Limitation Act. According to Tedford and Herbeck, the DMCA was passed to prevent a possible “chilling” on free speech (390). As part of the DMCA, the Online Copyright Infringement Liability Limitation Act states that Internet service providers (ISPs) are protected from being held liable for copyright infringement on their site as long as the service: “…‘(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing, (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent, or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material.’” (390). However, an ISP is only protected by the DMCA if they have a “notice and takedown” procedure on their site and respond to notices of copyright infringement in a timely manner.

              It is this last detail that stirred up a lot of debate in the court case Viacom International v. YouTube. In this legal case, Viacom issued a lawsuit against YouTube for “brazen copyright infringement.” Although YouTube did remove the content from their servers, the issue remained unsolved because the clips were soon re-uploaded. Viacom’s next step was to try to establish a licensing agreement with YouTube, but when these negotiations failed Viacom decided to file a $1 billion lawsuit against YouTube (391). The case was dragged on for over 7 years until Google (which had purchased YouTube during the interim) reached an out of court settlement with Viacom. Once this incident was resolved, YouTube began implementing new policies, such as “copyright strikes” and a “Content ID” system to better target and remove infringed material. Nowadays, the YouTube platform is home to less copyrighted material, and far more original content (392). However, a recent incident involving one of YouTube’s biggest stars might upend a major category of content on the platform.

              The incident I am referring to is PewDiePie’s racial slur during one of his livestreams. For anyone who might not be familiar with PewDiePie, here’s a synopsis. His real name is Felix Kjellberg, and his channel, titled PewDiePie, is one of the largest on YouTube. The content of his channel varies, but PewDiePie is best known for his gaming videos. In fact, PewDiePie is probably a major reason as to why the gaming section of YouTube is as popular as it is now. Unfortunately, not only is PewDiePie a popular YouTuber, he is also a controversial one. During his videos and livestreams, PewDiePie can sometimes express racial or malicious commentary. The last occurrence was just last month when he called another player the n-word while livestreaming an online, multiplayer game. In response to this event, game developer Campo Santo issued a copyright strike against PewDiePie’s channel. The purpose of the strike was to force Kjellberg to remove videos containing the developers’ game, Firewatch, from his channel. One of the co-founders of Campo Santo, Sean Vanaman, stated that, “I am sick of this child getting more and more chances to make money off what we make,” (Ore).

The article I cited this quote from, “Is playing video games on YouTube a copyright infringement? No one wants to find out,” next addresses another issue that it is underlying this incident; that is, whether an individual’s playthrough of a video game should be considered copyright infringement. In the gaming section of YouTube, clips of a game are usually not treated in the same manner as any other copyrighted material. The reason that most game developers allow their copyrights to be violated is that the video often acts a form of free advertisement and/or endorsement that will promote watchers to buy it themselves. However, in light of this controversy around Kjellberg, some developers are beginning to wonder if they want their game’s image associated with “Let’s Players” who use strong, uncensored language. One the other side, these “Let’s Players” argue that their commentary while playing the game qualifies as fair use. However, since there have never been any legal cases about the use of video games in YouTube videos, no one is sure if this argument would hold up in court (Ore).

Lastly, the author of the article, Jonathan Ore, comments that, “In the world of gaming on YouTube, a copyright strike is considered the nuclear option, and for good reason. Any legal precedent on the nature of video game footage on the Internet could have huge ramifications for many of YouTube’s largest channels…”. I find this prospect alarming. Although I am not constantly on the gaming section of YouTube, I still have many favorite channels there. Channels that provide engaging, and often hilarious, commentary on games that I am unable to play myself. I would hate it if these channels and their creators would be forced to stop producing content just because a few individuals, such as PewDiePie, give “Let’s Players” and gamers a negative image. At the same time though, I completely understand why game developers don’t want to be associated with them when their reputation could possibly be tarnished. What are your thoughts? Should developers limit those who are allowed to use their game footage in Let’s Plays? Does commentary while playing a game qualify as fair use? And finally, if a legal battle did occur, which side do you think would win?

Sources:

Ore, Jonathan. “Is playing video games on YouTube a copyright infringement? No one wants to find out.” CBC News, 7 Oct. 2017, http://www.cbc.ca/news/entertainment/youtube-gaming-pewdiepie-fair-use-1.4309312 Accessed 9 Nov. 2017.

Tedford, Thomas L., and Dale A. Herbeck. Freedom of Speech in the Unites States. 8th ed. Strata Publishing, INC., 2017.

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