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Copyright Infringement & why Twitch TV and YouTube Gaming are above the law

Services such as Twitch TV and YouTube Gaming make millions of dollars, but are they really legal?

Copyright law and intellectual property in the United States seem to be this insanely gray area where certain exceptions and conditions exist for everyone, and this is especially true in the world of gaming.

Why is it that video games seem to get the short end of the stick when it comes to protection against infringement?

Video games have proven time and time again that they are indeed an art form, so why is it that when it comes to copyright law there is almost no enforcement? I'll be breaking down copyright law and exactly how Twitch and YouTube gaming are breaking these laws and hurting developers in the process.

Intellectual Property and Copyright Law

Before actually getting into what copyright law is, we need to understand what intellectual property is. Just like physical property that you can touch and own such as your house and car and items etc., intellectual property is basically the property of your mind, so your thoughts and ideas.

Unlike physical property, proving you are the first one to think of intellectual property and actually claim it as your own is a much harder thing to accomplish exactly for that reason.

The best way to preserve your intellectual property is to register a copyright for it. Basically, the copyright will be a legal document that clearly illustrates that you are the creator of something and gives you authority over it. This authority entails that you can then give people the right to copy your intellectual property, hence copyright.

Copyright Law was intended to preserve the value of the original work while giving the intellectual property owner fair compensation for their contributions. On top of this, it was also actually meant to incentivize the fields of science and the arts for people to make strides in these areas by providing certain time restraints for the copyright to remain intact. Today the focus seems to have shifted from trying to advance these fields to basically sponging every dime out of any product that comes across the market.  

"In the United Sates, all works created after January 1st, 1978 have a protection period that is in place for the life of the author, creator, or owner of copyright, plus an additional 70 years after the date of such individual’s death. "

Under copyright law is the Fair Use Doctrine, which allows anyone to make derivative works of a copyrighted product as long as it adheres to certain guidelines. Rather than dive into all of the nuances that may or may not fall under the Fair Use Doctrine and piece them out with a fine-tooth comb I am just going to tell you that a majority of users who upload streams of video games claim their work to be protected by this doctrine.

The Gray Area of Streaming

Let me start out by saying that many of the most popular games that are streamed for reasons such as eSports have legal terms within their user agreements that allow them to be streamed without fear of copyright violation. This article isn't about those types of games since a large portion of their fanbase and revenue actually rely on the publicity from such events. This article is directed more towards single-player games that have entire playthroughs available for streaming on the web.

How is it that an entire playthrough of a game can be uploaded and streamed over a million times even without commentary and still not be taken down for copyright infringement? The answer is Fair Use.

So when this medium [video games] that was unlike any other came along, it was forced to oblige to outdated rules that didn't really fit its particular needs.

When this Fair Use doctrine was introduced obviously the creators had no concept of video games. When this medium that was unlike any other came along, it was forced to oblige to outdated rules that didn't really fit gaming's particular needs. Video games are still, to this day a very unique medium in the sense that it is a very active form of entertainment. This basically means, that unlike books, television, or movies, video games require constant participation from their audience in order for the game to progress. Almost every other medium available basically has a predetermined and fixed path that it follows whether the audience is engaged or not.

Keeping that in mind, it has been argued countless times that a player's actions and gameplay within the game count as performance in and of itself and is a unique piece of derivative work rather than a copy so should be protected under fair use.

Certainly, if a player adds commentary, music, and production value to a gameplay video then that could easily be considered fair use. However, a video of a strict playthrough of a game is most definitely copyright infringement, yet it happens all the time without any kind of compensation to the game developers.

Some Kind of Middle Ground

Nintendo came under scrutiny a few years ago when it decided to crack down on Let's Play videos on YouTube of their games. The company eventually decided to ease up on restrictions and instead put ads on these videos so the company would then see some kind of money from it.

We may own the physical disk in which the data is encoded on, but the actual software itself is still a piece of intellectual property that has a registered copyright.

But this is the kind of thing so many gamers think they are entitled to. Just because we may purchase a $30-$60 game, we think we can do whatever we want with the content from that disk, and that's just not the case. We may own the physical disk on which the data is encoded, but the actual software itself is still a piece of intellectual property that has a registered copyright.

And let's be honest, throwing a disclaimer saying that you do not own the rights to Mario on a video doesn't cover your ass at all.

While I think Nintendo's actions a few years ago may have been a bit extreme, I think it may have been a necessary step in the right direction. Allowing YouTubers or TwitchTV users to benefit from protected material without any kind of compensation to developers just isn't right in my eyes.

In the same context, though, gameplay is unique to each player and is worth talking about as something that is protected by fair use.
While I think Nintendo's actions a few years ago may have been a bit extreme, I think it may have been a necessary step in the right direction. 

Laws are always playing catchup when it comes to technology, so each situation regarding copyright may be different depending on the copyright holder involved. Until that magical time when the law properly reflects the technology of today, this is a conversation that must be considered, especially by users who stream these kinds of videos.

Published Sep. 1st 2015

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