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.