Legal Archive

I sometimes blog about topics of a legal nature. It is important to note that I am not a legal professional and therefore am not giving opinions of a professional nature. These posts are just my understanding or my opinion of certain legal topics or court cases.

Thoughts on Recent DMCA Issue re: Pewdiepie

Important Note: I am not a legal professional nor do I have a professional relationship with anyone mentioned within this blog post. I would also like to state that a lot of the information presented within this post is my opinion or in some cases my understanding of laws surrounding Copyright in relation to the Digital Millennium Copyright Act. The facts presented within this post are my understanding of the facts, but do not constitute as a credible source. If any of my conclusions or the facts presented within this post are incorrect, feel free to reach out to me and help me understand the mistake made.

Very recently one of the largest YouTube video creators, ‘Pewdiepie’, is the topic of conversation due to his use of a racial epithet which has historically¬† been used to attack and demean those identified as “African Americans” as well as anyone with a darker skin tone. The use of the word was during a live stream as Felix, the man who uses the alias ‘Pewdiepie’ online in his YouTube channel, was playing an online game known as “PlayerUnknown’s Battlegrounds” (also known and references as “PUBG”) in which the word was thrown at another player within the game. While one could reasonably come to the conclusion that the use of the word was accidental, it doesn’t take away from the fact that the word was used.

This comes after months of issues between the YouTube personality and main stream media in which many online publications accused him of pro-Nazi beliefs and communication on his channel. While many of these cases were certainly presented outside of a context that does change the ultimate meaning of the situation, even in context this particular use of the word is something that one could reasonably state is unnecessary. Many have accidentally said something they didn’t mean to say, but the accidental use of the word I would assume indicates that it’s a word he has used before. No one simply uses a word like that off the cuff without having some sort of history, whether it be from being around people that use it or having used it previously. Regardless, it certainly comes off negative and I personally cannot stand the usage of the word in this context even if it was on accident.

Recently one of the names behind the successful independent game “Firewatch”, Sean Vanaman, made posts on Twitter claiming that they would file a DMCA takedown of the videos on the ‘Pewdiepie’ YouTube channel relating to Firewatch and other games released by the studio. He explains this is in regards to his use of the racial epithet during that live stream, indicating that he does not want to be associated with him in any way, shape, or form and would use Copyright as the means to remove any association. He even admitted to having most likely financially benefited from the videos he will be filing the takedown notice and has indicated that he needs to think about the implications of such benefit, potentially meaning that he would like to avoid similar situations in the future.

Source: https://twitter.com/vanaman/status/906983575337107456

Archive Copy: http://archive.is/kQB0z

I want to first voice my agreement with the sentiment which Sean has. The use of the word by Felix is not something that should be encouraged and the creator certainly has a bad history of activities that I wouldn’t want my name or any associated brands to be associated with. Regardless of whether the use of the word was intentional or not, it is not something that one could simply forgive and forget and Felix certainly has a rather interesting history of producing quite questionable content. As being one of the largest content producers on the platform, one would and should hold him to a higher standard than lesser channels given that he would be one of the most prominent channels one would find when trying to find out what content on YouTube is like. While there are certainly millions of channels which use the platform, this type of content can shine a negative light on the platform as a whole and cause more problems than have already been caused due to the advertising issues which many other creators attribute to him.

In summary of recent events, a large number of larger advertisers pressured YouTube to take additional steps to prevent their advertisements from appearing on hate speech and other unacceptable content on the platform. While I certainly applaud advertisers wanting YouTube to take steps to protect them from being displayed next to videos depicting hate speech and real-life violence in terrible context, this has also put the platform in jeopardy and has negatively affected countless other content providers who do not make content that matches that description. Following all of this, Felix has once again placed the platform in a bad situation even if the incident didn’t occur within the same content he produces on YouTube.

All of this being said, the statements made by Sean Vanaman on Twitter paint a really bad picture for many. His intention to file a DMCA takedown of videos containing Firewatch gameplay produced by Felix is, in essence, promising to abuse a system in order to silence someone. Copyright law is supposed to protect created works both fictional and non-fictional in scope and presentation. The Digital Millennium Copyright Act aims to protect online content by providing provisions for Copyright holders to request or demand the removal of content which infringes on their rights as a content producer. This means parties that copy their work and present it either as their own or without the permission of the Copyright holder in a non-protected fashion must remove the content when demanded, otherwise the Copyright holder has the express right to sue the offending party.

It is important to note that platforms like YouTube rely on “Safe Harbor” provisions which shift the responsibility of the content to the content producers rather than the services that host the content. YouTube does have a responsibility to Copyright holders to act on their behalf when a DMCA takedown is submitted, but there are also some provisions which protect content creators from unlawful DMCA claims which do provide these platforms with minimal leeway to protect their own creators. That being said, those protections aren’t all too strong and often times a content creator using someone else’s Copyright in a legal manner are still affected by claims despite having a correct fair use argument towards their use of the Copyright.

While, to the best of my knowledge, neither Sean Vanaman nor Campo Santo have taken any actual steps towards making a claim under DMCA to YouTube, it is not a positive outlook that he would make the claim that the use of the racial epithet is at all in relation to whether or not the works produced by Felix are or are not protected by DMCA. The DMCA is supposed to protect Copyrights, not one’s association to another or assumption of support of what one says. For Sean to make those public statements, it shows that he might not understand DMCA or may have a skewed perception of it that strays away from the intention of the act.

YouTube currently exists in a weird state as they provide automated tools for Copyright holders to make claims against content. The process will have the content taken down immediately while offering the channel which has uploaded the content a means to contest the decision to remove the content. This is in compliance with the DMCA, but the implementation leaves it quite open for abuse since YouTube’s involvement in protecting a creator or uploader could have them lose their safe harbor. This would have a terrifying impact on all independent creators on the platform and would certainly damage free speech in the platform.

I do want to single out a very specific tweet from Sean that I particularly agree with and feel should be a compelling reason for him NOT to file a DMCA takedown notice:

Archive Copy: http://archive.is/iMmmz

Freedom of speech certainly does not protect you from how the rest of the world is going to view you and it certainly doesn’t protect you from the very public consequences of that speech. It simply means the government cannot prosecute you over your personal beliefs and expression. It does not mean that the rest of us have to agree with or support what is being said, and it certainly doesn’t mean that those associated with the individual making that speech must continue to be associated with that individual. It is perfectly fine for Sean Vanaman on a personal level of Campo Santo on a professional level to publicly comment on that speech and distance themselves from the ‘Pewdiepie’ channel and brand.

That being said, leveraging DMCA as a tool to do so is very much not what the DMCA provisions are created to do. These are not tools used to remove content from the Internet produced by those you disagree with. Fair use provisions are there to protect commentary, criticism, and educational content from dealing with censorship from those covered within the content and those which will disagree with it. Felix’s use of Firewatch in his Let’s Play format video is and should be protected speech regardless of what kind of person he is or the quality of his character. We need these fair use provisions to continue to make progress as a society and to allow innovative technologies and forms of communication to mature and move us forward.

While it remains to be seen if Sean is going to stick to his word and actually take action against the channel using the DMCA takedown procedure or if he is going to wise up and use a more appropriate means to compel Felix or YouTube to remove the content, this definitely serves as another reminder that the laws passed to protect Copyright on the Internet are severely outdated for the type of growth the Internet has seen in both the usage of it as a means of communication and the types of media content which creators are uploading quite frequently through a wide variety of major and minor platforms. The Digital Media Copyright Act was quite clearly made without taking into consideration the content forms found on most YouTube channels.

Outdated Provisions / Terrible Ambiguity

One of the most frustrating aspects of fair use is the process of determining whether some sort of content is considered fair use or not. Since these guidelines are non-binary, it can be very difficult to determine whether even a single video meets the requirements of fair use or not. In the recent lawsuit between Matt Hoss and h3h3productions (a YouTube channel operated by Ethan and Hila Klein) Mr. Hoss attempted to make the argument that since they used a large portion of his original video within their commentary video that it couldn’t fall under fair use. While one of the elements of fair use involves the portion of the work being used, there is such a level of ambiguity that we cannot possibly determine how much of the video should be used when making commentary or criticism. While h3h3productions ultimately won the lawsuit, we still are sitting in a position where the determining factors for fair use are too vague to give content creators an understanding as to how they should present their content and how much of another creator’s Copyright they are allowed to present relevant to the points they are trying to make.

Wikipedia has a large number of images and information on their website that meet the fair use standards due to the lack of quality in images and using only the minimum of a Copyrighted work as to make important points within the articles on the website. This approach does ensure that their use of Copyrighted works is most likely to fall under fair use, but can often make it increasingly difficult to offer readers a comprehensive view on a topic which is one of the things that Wikipedia is quite proud of. Anyone can visit their website and learn from it since articles are updated by those which have a direct interest in the legitimacy of the information contained on the website. The people maintaining these articles are often experts in their field or are at least well versed enough to know how to perform the approach amount of research to produce educational content.

In my opinion, it would make a lot of sense for the law to define in rather certain terms what type of content falls afoul of fair use. It is entirely possible for law to make references to legal cases and real-world examples as a means to convey what the law or legal code is about. With how easy it is to put information on the Internet, I feel it would be possible to ensure that those researching the laws and regulations in regards to Copyright which are meant to protect Copyright holders would be able to get a clear depiction of the types of content that are and are not fair use. It would also serve as a means to protect Copyright holders more effectively if one can say without a shadow of a doubt that content either meets or fails to meet the requirements for fair use.

I believe digital Copyright is in a weird state right now where only the largest content producers are actually protected and all others which release any form of content online are simply vulnerable to any sort of coverage of any type of Copyright. You’re not protected against a larger company deciding to use their legal resources to silence you in a lawsuit since most smaller content producers do not have the finances to defend themselves. If there is anything the Matt Hoss lawsuit has taught us, it’s that you need to be at that type of level to be able to fend of a legal attack from anyone that has the resources to levy a lawsuit against you. If you speak your mind on a particularly topic about any other type of content online, you’re opening yourself up to an attack on courts and there is no very specific protection that actually protects you; it just merely offers you an opportunity to protect yourself if you have the money and legal resources to do so.

Edit: I would also like to note that there has been some recent coverage over this whole ordeal that seems to indicate that “Let’s Play” content is not protected under fair use. While I do agree that there are not direct protections in fair use for that type of content, not all types of “Let’s Play” content are the same and there are legal arguments to be made which have not had an opportunity to be discussed in court yet. To say that there is no protection for these types of use of Copyrighted content is entirely correct, but that doesn’t mean that this type of content couldn’t see a legal protection in the future nor does it address the fact that DMCA itself still has a lot of situations which have never been seen in court. I feel there is a moral obligation of content creators to voice that particular side of the equation, but to also remind hopeful content creators that DMCA was not created with them as the protected class. It favors the large creators that have the ability to hire a legal team to represent them when they feel someone else’s content infringes upon their own. Those which speedrun games, produce interesting unique takes on games, criticize them, or otherwise create content with gameplay are not the protected class regardless of whether they should be or shouldn’t be. The major issue here is the simple fact that there is a ton of ambiguity written into Copyright law in ways where it would take a landmark case for us to truly understand how these types of content would hold up in court. Until someone finally decides to try that, we will never know.

GDQ’s Copyright Hypocrisy

One of the first things I want to communicate here is that I can respect what GDQ is attempting to do with their events. I am a large fan of Mario Marathon which friends and family already know quite well given that I have a tendency to force it upon them each year that it is going on. I am a fan of charity events which support causes I like to support and I also am a fan of gaming marathons. As a result, something like GDQ is precisely what I am looking for in my entertainment.

With that being said, there are a number of things about GDQ which have a tendency to annoy me, one of which involves their outright hypocrisy regarding copyright and DMCA.

For those unaware, Games Done Quick has long decided to file takedown requests with YouTube’s automated system whenever someone tries to upload a video containing footage of the runs or content from their live broadcasts on the platform without permission. The runners have permission to upload their own runs to their YouTube channel since they are the one providing the entertainment during that run, but otherwise you would need to reach out to GDQ. I don’t know what their policies are in regards to requesting access to their footage and whether or not they authorize any third parties that are not directly involved in GDQ to use that footage, but a number of people trying to put together “best of” videos have been copyright claimed and had their content removed from the popular video format.

Here’s the issue.

One of the biggest reasons GDQ can currently exist in its current form is due to the fair use protections that protect them from copyright claims from game developers and publishers. Video games are a protected media preventing parties from profiting off the work of others without the express written permission of the copyright holder. In this case, if I were to steal assets from another game to make my own, profiting from that work would certainly be illegal. There are situations where I could parody, criticism, or otherwise comment upon the work of the original artist, but simply reproducing their own assets and especially the entirety of their game would most certainly open myself to lawsuit.

GDQ is protected because they are creating their own derivative work offering commentary on the original work within a different media context. Instead of merely recreating the gaming experience, someone is playing the game in a way that offers its own value. Speedrunners are attempting to play the game as fast as possible under certain conditions and the broadcast of the game is not the only presented content in this context. Generally, the gameplay window only takes up part of the stream and other aspects presented in the stream are the commentary from the speedrunner and those presented with them, the staff reading off donations or making announcements, a live crowd potentially seen in the stream, and other information presented on the screen. Even if the game was a large part of the content, the fact that they are performing the game in a rather impressive way and offering commentary on the performance on top of that prevents the work from falling outside of the bounds of fair use.

In short: GDQ is allowed to exist because of fair use.

GDQ enjoys a protection against copyright holders by presenting their form of entertainment under fair use. They are not profiting off of the form of entertainment, though one could argue it is fair to profit off of playing a game at a high level since they are not recreating the enjoyment of the game for the viewer in the same way the viewer would enjoy the game if they were playing it.

Circling back to the issue at hand… there are a number of YouTube channels out there which produce “best of” compilations or commentary on the GDQ events which have a tendency to use clips from actual GDQ events. The staff at GDQ has made public statements regarding the use of GDQ footage and has taken measures to request the removal of this type of content from YouTube. GDQ can ONLY make this claim if they claim ownership over the original video and audio which they produced.

“But wait… shouldn’t commentary or criticism fall under fair use?”

Yes. It does. GDQ is requesting YouTube remove content from their platform as they believe they own a copyright over footage that requires fair use to operate… and wants to undermine others that want to create similar content under the same fair use guidelines.

In my honest opinion, every single takedown request filed by GDQ staff where the content being produced is not be reproduced in its entirety is an insult to those which rely on fair use. What these channels are doing is PROTECTED under fair use under the same guidelines that GDQ itself is protected. This is a hypocritical move made by GDQ to punish others wanting to offer their own take on the best or worst moments of GDQ as they are the only ones that can possibly benefit from that type of content.

First and foremost, while I am not a legal professional and therefore do not have an intimate understanding of copyright law, I believe it is not only unethical what GDQ is doing, but potentially illegal. By filing a single takedown notification to YouTube, GDQ has stated to YouTube that they own the copyright of the footage being presented in these clips. This may or may not be true, considering that they are producing their content through fair use. However, they are also purporting that the party that is using the footage under a situation that is protected by fair use is not protected by fair use, and they are also SPECIFICALLY claiming that they understood the use of their work to NOT be protected by fair use. That is a requirement of filing a takedown request; you have to admit that you understand copyright law and fair use before you file the claim.

There have been cases of people filing DMCA notifications claiming that actually did not understand what designates fair use, but an organization which SIGNIFICANTLY relies on fair use has no excuse to not understand what constitutes as fair use.

It is my opinion that what GDQ does in these situations should be considered perjury and should be subject to criminal penalties. We see this issue again and again with copyright trolls, video game developers not keen on being subject to criticism, and content creators which cannot handle criticism being thrown their way. We have seen it with the likes of Alex Mauer, Digital Homicide, and Matt Hoss. GDQ puts itself in the same group as the previously mentioned by silencing criticism and commentary about their event in the way that they have.

While this is just my opinion, this is precisely why I choose not to support GDQ.