Transparency: Streaming Games is Stealing
The more I watch livestreaming of video games, the more I like it. The personalities of some of the streamers are great. Not only are they entertaining, but most good ones invite you into their homes and share with you their life struggles and experiences. Many are beginning to allow you to even pick the music on the stream and which game you want to see them playing. Truly, it’s taking the let’s-play videos from a couple of years ago and giving the audience direct interaction with the person on the other end of the screen. It’s extremely brave of the streamer and entertaining for the audience.
Who would have thought that these amazing individuals were also flagrant and conspicuous thieves? (I say with an air of sarcasm.)
“What?” you might say, “I had no idea!” Well, unfortunately, it’s true, and I’ll tell you how by taking a part the typical stream. Of course, not every stream contains these elements, but in general, these are the things you see in many streams all the time.
Analysis of a Typical Stream
First, you usually don’t see the streamer, she normally has some sort of introduction that includes either images or artwork from past games played or maybe art from the game she is about to play. This infringes on the distribution rights and public display right of that artist’s work.
Secondly, when the stream does finally come up, maybe a portrait shot of the streamer explaining what she is about to play. Here we have multiple instances of stealing. Usually, there is a poster or ten of her favorite games or movies or television characters behind her. Likely, she doesn’t have a license to display those images. And if she has a tattoo of her favorite cartoon character (which is, of course, Jake from Adventure Time) on her shoulder, arm, or chest, then she really has legal problems.
Finally, the stream starts. Of course, if she continues to display her portrait, then the previous violations still hold. This being a gaming stream, she is obviously going to stream a game because that’s what she does. Well, that game doesn’t belong to her because most games are digital which means that she has a license to use it for personal entertainment not public display. However, if she does happen to own a physical copy of the game, she probably doesn’t have a license for public display of that game. And then, if she plays anything but royalty-free music on her stream then she in violation of copyright for that work, too.
I’m no lawyer, judge, or any kind of legal advisor. And thank goodness I’m not becuase this streamer would be in big trouble. But it could be argued that the streamer isn’t in violation because of the copyright exemptions and exceptions. OK, I’ll concede that for a moment, but let’s take a look at those exceptions to see if they actually apply.
Radio stations, television, and other broadcast media, including YouTube, Pandora, Netflix, and Spotify, have a statutory licenses with copyright holders and artists to publicly showcase that artist’s work. This means that they have paid a fee to broadcast the work in a way they see fit. Games don’t exactly fall under this kind of agreement, but the music and some of the other work in the stream might. However, it’s highly unlikely that the streamer actually has a license like this because they tend to be expensive and cumbersome to deal with if your primary purpose isn’t to broadcast music or song covers.
All other copyright exceptions don’t exactly apply to streamers because they are for physical distribution and printed media, except one. And this is the big most controversial lawful exception of them all: fair use.
Breaking Down Fair Use
Again, I’m not an expert in the field of copyright law, but let’s turn to the people who are. Jane C. Ginsburg, a professor of Literary and Artistic Property Law at Columbia Law School (she probably knows a thing or three), calls on one very important court case from 1841 in the book The Evolution and Equilibrium of Copyright in the Digital Age. Folsom v Marsh tried an author over the use of another person’s ownership of President George Washington’s work. The written judgement of that court said, “In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”
Crash Course: Intellectual Property (DFTBA, Stan) breaks that statement down to four major judgements placed on a work claiming fair use. Bear in mind, unlike most court cases, fair use cases have an "affirmative defense," which means that it’s up to the defendant to prove fair use. Here are the factors used to justify fair use:
- Purpose and character of the use. These usually fall under a couple of categories including review and commentary. Recently, transformative work has fallen under this as well. That’s why parody and remixes can get away with using other people’s works.
- The nature of the original work. Basically, if the more original and creative the work is, the more likely it will hold its copyright. The more fact-based the work is the less likely it will hold the copyright, which is why I can cite Ginsberg and Crash Course.
- How much of the work is used. This is based on the amount of work that is use and if that portion displays the definitive parts of the piece. In other words, how much of the original work is spoiled by the secondary work.
- Does the derivative work harm or prevent the original creator from making money off the original work? Usually, this is weighed against public benefit, which is why reviews of movies and games can use clips without worry.
Back to our streamer…
Although some streams, like the ones for journalistic websites, are often filled with review and commentary on the game. Many streams aren’t about that at all, and with most games falling more on the side of creative than fact-base, the err is in the game developer’s favor. Many streamers stream indiscriminately and a lot. This means that number 3 from above will not be weighed at all in the streamer’s defense.
The most controversial question then is “Does it financially harm the copyright holder?” Some would say yes because now the audience doesn’t have to buy the game. However, others say that it actually helps advertise the game.
Are streamers stealing? In short, yes, but until the developers and copyright holders come down on them, they aren’t going to get into trouble. Twitch (and other streaming services) has adopted a policy that until a user has been cited by the original copyright holder twice, that it will not take permanent action against the account. Most of the time, since there is no money involved on the users' end there isn't a suit brought against an end user, but the video-on-demand is removed.
Because the music industry, understandibily, has the most to lose, Twitch created an algorithm that will mute portions of VODs that contain copyrighted music.
Before streaming certain games, read up on the developer's policy regarding reproduction of the game content. Nintendo, for instance, has a weird one. Plus, it’s always nice to get as much permission as you can before streaming someone else’s game. And who knows, maybe that developer will send people your way, which benefits both of you.
Also, remove that Adventure Time tattoo. That show will not be popular in a few years, and you’ll regret having that permanent mark on your shoulder.