Jim Sterling receives DMCA takedown notice after giving a negative first impression of a game - what's going on? Today I'd like to talk to you about copyright in video games. I’m bringing this up is because of a very interesting situation that has occurred between Jim Sterling, a YouTube commentator/reviewer and a games developer called Imminent Uprising. This has once again raised the issue of whether developers can rightly strike down certain negative reviews on the grounds of copyright infringement or whether these are protected under the doctrine of ‘fair use’. A lot of people passionately argue the latter, but I wonder how many have actually done any reading into the law behind this. Saying things without any justification for saying them is a huge problem with our internet generation. But let’s go back a few steps. We just said a whole bunch of things that are a lot more complicated than they sound. What actually is copyright? How does this apply to video games? Are entire games subject to copyright, or just certain elements? What’s this DMCA I’ve been hearing so much about? Where does this come from and why do we need it? Why does DMCA apply to YouTube? Does this apply to me? What’s the doctrine of fair use? Are there any exceptions to this? Questions like these are all central to cases of copyright infringement. Throughout this article I'll try to give clear answers to some of the above question that you won't need to be a lawyer to understand. My hope is that by the end you'll have a stronger understanding of some of the legal issues involved and the types of questions you should be asking yourself. Disclaimer! Now let me get this out of the way. I'm not an intellectual property lawyer. I’ve barely even touched the subject throughout my studies and career. I’m also a lawyer in the UK, meaning I’ve never even read a US law before preparing for this article. All I’m doing is a bit of research to develop my own understanding of the issues and thought it would be worth sharing my findings. Nothing in this should be construed as legal advice whatsoever. THE FACTS The Jim ‘Fucking’ Sterling Dilema The issue first arose when Jim Sterling, a YouTube commentator who gives short first impressions of video games, reviewed a new game called Slaughtering Grounds, developed by a company called Imminent Uprising. Sterling didn’t very much like the game and gave it a fairly harsh reception in his video, originally posted on YouTube. In response to this truly British tongue lashing, Imminent Uprising proceeded to swallow the blue pill and release their own version of Sterling’s video. This was simply the original review video with some fairly choice captions overlain such as "what I'm going to do now is run around aimlessly since I haven't made any attempt to actually figure out the game thus far...because I'm Jim Fucking Sterling Son" and "why show game features when we can show how big of a fucking idiot we are." In a tale that could give Inception a run for its money Sterling proceeded to review the developer’s video. Oh yeh, and then the developer released another video responding to Sterling’s. Just to be clear, that’s a total of one first impression video followed by three reviews of reviews! In the end Imminent Uprising grew weary of review-wars and thought screw it, let’s go nuclear, filing a ‘DMCA Notice’ on Sterling’s original YouTube video. This basically means they accused Sterling of infringing their copyright in the game. Now that we know the facts, let’s take another step back. What does DMCA actually mean and what’s a ‘DMCA Notice’? DMCA What is the DMCA? DMCA stands for the Digital Millennium Copyright Act (a summary of which can be found here). This is a piece of US legislation signed into force in 1998 that amended the United States Copyright Act, Title 17 of the US Code. Title 17 is effectively the collective body of Copyright law for the US that is continuously updated as new laws come out. The DMCA’s main purpose was to provide certain limitations on the liability of online service providers (OSPs) for copyright infringement that occurred on their websites. I.e. just because someone uploads some naughty content to YouTube doesn’t mean YouTube should get prosecuted. Section 512(k)(1)(B) of Title 17 defines OSPs as “a provider of online services or network access, or the operator of facilities therefor.” This would include content hosting websites such as Blogger, Twitter, Facebook and YouTube. This means that companies like YouTube, who often unintentionally host copyright infringing materials (simply because there’s no one monitoring everything that goes online), are able to avoid liability if they comply with certain rules. What’s a DMCA Notice? So how do these OSPs go about limiting their liability? By following these 3 steps: 1. Ensuring they have no actual or constructive knowledge (constructive is where you don't technically know, but would have been able to work it out if you were paying attention) of the infringing behaviour 2. Ensuring they receive no financial benefit directly attributable to the infringing activity (in a case where they have the right and ability to control such activity); 3. When given a proper notice of infringing material being posted on its network, the OSP “responds expeditiously to remove, or disable access to, the material that is claimed to be infringing.” So the ‘DMCA notice’ is not something that was actually introduced by the Act itself, but is more a bi-product of limb 3 above. There’s no set form this notice must take, and it can be something as simple as a letter to your OSP/ISP. Companies like YouTube were obviously receiving so many of these that they decided to introduce their own online complaint system to speed up the process. Application of DMCA globally The DMCA is a piece of US legislation and as such should only apply to issues within the US. Copyright laws differ greatly between countries so it’s important to determine which country’s laws apply to this circumstance of each case. Let’s take a look at that now. Which country’s laws apply to YouTube? So, Imminent Uprising’s game was created in the US but released in many different countries on Steam. Sterling’s video was created in the UK, apparently posted on YouTube GB, but also possibly located on US servers and viewable in the US. Which laws apply here?! Trying to even figure out which laws apply to YouTube is itself quite a challenge. As a company based in California the obvious answer is US law. But Sterling’s video appears to be based on YouTube GB and there’s a set of YouTube terms and conditions that are governed by English law. When you click to be taken to their copyright policy, you’re actually redirected to Google’s Copyright policy. This is fine, but this appears to be based on US law, talking of ‘fair use’ exceptions. I’ll admit that I haven’t looked into this too deeply, buy YouTube’s terms and conditions are at the very least confusing. On the one hand on YouTube GB you’re saying you agree to settle any disputes exclusively in English courts, but on the other you have conditions saying you’ll be bound by US copyright law which, by definition, only apply within the US. I know that Google will have lawyers far more experienced than me ensuring that everything ties together nicely, but in such a consumer focused business where we expect people to obey the rules, they should at least ensure the rules are clear. What law applies to this game and can a case be brought in the US? Thankfully this answer is a little more straightforward. Well, at least half of it is. The game was produced in the US so is regulated by US copyright law. But does this mean that a US court can apply sanctions on Sterling, who I believe is based in the UK? This is the question of ‘Jurisdiction’ you may have heard about and is usually one of the first things a court will consider in any case. If the court doesn’t have jurisdiction, it won’t consider the arguments. The recent case involving Kim Dotcom and Megaupload has shown that, even though many experts agree that US copyright law doesn’t apply outside US borders, sanctions can still be imposed upon foreigners for infringement, so long as they have some sort of ‘tie’ or ‘link’ to the US. Kim Dotcom is Finnish and German, residing formerly in Hong Kong and New Zealand. He created a website that hosted and shared copyright infringing material. In order for the US to prosecute him, they had to find jurisdiction. The prosecution successfully founded this on a few important factors (i) some Megaupload servers were located in the US; (ii) Megaupload used PayPal, a US company to pay some of the individuals involved; and (iii) a US company apparently posted paid ads on Megaupload. Another interesting case was that of Aubrey Canning. Canning produced a home video and used a copyrighted song in the background. He uploaded this to YouTube Canada. However, the video was allegedly stored on YouTube’s Californian servers and could be viewed in the US. As such it was held Canning could be prosecuted for US copyright infringement. Although Sterling’s video was posted on YouTube GB it was clearly visible in the US. If the US courts were to follow their logic in the above cases it’s not hard to see them finding jurisdiction. Whether or not this stretching of jurisdiction is acceptable is a question of complex international law. Just for clarity, a finding of jurisdiction doesn't mean that that the defender is guilty. It simply means that the court has authority to consider the arguments from each party. COPYRIGHT Which parts of a game can be subject to copyright? This is a really interesting topic, but one that I'm not going to go into here (the World Intellectual Property Office has performed an interesting, yet complex, summary that can be found here). The law on copyright is constantly lagging behind advances in technology and doesn't really fit well with complex video games. For example, there’s no express protection for video games in any copyright laws that I've seen; they’re more often than not brought under protection through one of the other categories, such as audio-visual works. It’s clear though that Imminent Uprising holds copyright in at least some elements of their game in some form (whether that's the art assets, the sound, the game engine, level design or a combination of all of these), and I’ll proceed with the rest of this article on that basis. The question then becomes whether or not Sterling’s video review, or any other video reviews, that use actual game footage, are to be considered copyright infringements. What are you allowed to do with copyrighted material? Let’s proceed using US law, since that’s what would be applied in this case if it actually goes to court. The owner of a copyright gains certain rights and powers, mainly being able to control who can use your product and how it may be used or reproduced. There are some clear examples of things we can and can’t do with copyrighted material. For example, you’re clearly allowed to buy and play the game in your home. You’re clearly not allowed to buy a copy of the game, burn it onto a new disk, retitle it and sell it as your own creation. But in between these two obvious examples the lines are blurred. The question in Sterling’s case will be whether or not you can use game footage in a video review you are making about that game. This has never really been raised in relation to positive reviews (although Nintendo have been doing some controversial, yet legal, things with let's plays) because let’s be honest, everyone’s a winner in those cases. So what separates negative reviews from positive ones? Isn’t criticism an expression of freedom of speech? Or do some reviews go so far that they violate the principles of the often cited ‘fair use’ defence? Let’s take a look at that now. FAIR USE Fair Use Fair Use is covered in section 107 of Chapter 17, which I set out at length as I’ll be referring to parts of it later on. "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." Before we look at these in more detail, let’s take a look at Imminent Uprising’s statement posted in defence of their DMCA notice. Imminent Uprising's Claim (here) “The DMCA filed is not to censor review’s, there are countless negative review videos posted(including multiple sterling videos) and only one in particular with a DMCA filed on it. The reason is we have a legitimate claim, we can prove a violation of our copyright(fair use is not blanket immunity) and damages.” On another site someone managed to pull a further response from one of the studio’s executives, who stated: “This brings us to the Fair Use Doctrine. Criticism and parodies are highly protected by the fair use doctrine. However, when using criticism one must be fair and reasonable to be protected by it’s articles. While negative criticism could be deemed reasonable is the manner in which the criticism presented fair? Herein lies our DMCA complaint and our case we will be presenting in court. With the above in mind, we will be presenting a violation of our copyright based on the following: In the sole instance of Jim Sterling’s “Squirty Play” video, we find the usage of the terms “WORST GAME OF 2014 CONTENDER!” and “Absolute Failure” to describe the entirety of our product while not actually evaluating it in its entirety unfair and unreasonable use of our copyright material.” Now it's obviously dangerous to analyse a statement someone posted somewhere on the internet - if the case goes to court then there will be proper written pleadings (arguments) which would hopefully be a lot more fleshed out. But the studio appears to be making the claim that, because Jim Sterling didn’t play the entirety of the game he isn't allowed to make generalising claims about the game as a whole. Their argument is that he should only be allowed to criticise bits he has played. And if this is there real argument then there seems to have been a simple misunderstanding of what 'fair use' applies to. This doesn’t require an analysis of whether the review itself was fair – this would simply be far too subjective and cause chaos, allowing anyone who got a brutal review to issue a DMCA notice. No, instead fair use requires an analysis of whether the use of the copyrighted content was fair. I can sympathise with the developers and understand where they are coming from though. Emotions will obviously have been running high when someone tears apart the months/years of work of tens of people in a single 10 minute video. Sterling's video was short, dismissive, mocking and perhaps some of the comments were unfair or exaggerated for effect. But like I said, these comments from the studio aren't formal legal arguments and if the case goes to court then there will be an analysis of the actual law. So let's take a closer look at the fair use defence. Fair Use Requirements The first thing to note is that tests like these are intentionally left broad and vague when being drafted. That’s because at the time of making the law the lawmakers know they can’t possibly foresee every scenario in the future, so must leave enough wiggle room in them to allow courts flexibility in their interpretation. Courts can imply different meanings to everyday words or give seemingly simply tests complex requirements. This is both a blessing and a curse for lawyers, but it’s pretty much what they are hired to argue about. The Fair Use defence is renowned for its “fact dependency.” By this I mean that every case will depend on its own facts. Small differences in circumstances often have a big impact. And it’s not enough to simply read the law as stated above. You need to read up on the years and years of case law that have carefully interpreted and applied the test to different scenarios. There’s no way I could ever become well versed enough in these to give a thorough overview, but I’ll do my best to draw some broad conclusions from what I’ve found. Introductory paragraph of s107 It’s interesting to see that criticism and comment are expressly included within s107’s introductory paragraph as examples of things that may be fair use. Clearly this cannot be restricted to positive reviews, so at least by implication negative reviews can potentially be fair use. Factor 1 – Purpose and Use of Copyrighted Work Case law on this factor seems to say that the questions you should be asking yourself are: (i) Has the original material been transformed by adding new expression or meaning? and (ii) Was value added to the original work by creating new information, new aesthetics, new insights and understandings Let’s consider what Sterling did in this case. The gameplay without any commentary over it would be considered the “original material.” Did the addition of commentary transform the work at all, or add new expression and meaning? Personally, I’d have to say it does. Whether or not you find Sterling’s video funny or offensive, there’s no doubt that the 10 minute review he produced was of a completely different nature and character than a 10 minute video of someone playing the game without commentary. Again, you don’t have to agree with what Sterling said to be able to see that there’s a difference between a simple gameplay video and a critical review. Under limb (ii) above you could also argue that Sterling gave new information, insight and understanding to his viewers that wouldn’t be present in the gameplay itself. However I’d consider it a stretch to label commentary made after playing the game for only 10 minutes as insightful. Factor 2 – Nature of the work This seems quite an ambiguous leg of the test, but appears to involve consideration of whether or not the copyrighted work has been published by the owner. If it has not yet been published then the copyright holder should have greater control as to how it’s first released to the public. If it’s already out there for everyone to see, the work isn’t secret and as such the fair use defence is wider. Since the game was made on sale to the general public I don’t consider this factor particularly important here. Factor 3 – The Amount and Substantiality of the work taken There are 2 important and separate parts to this question – amount and substantiality. What I mean by this is, it may not be copyright infringement if you copy a lot of unimportant parts of a film, but it may be if you copy a few crucial or iconic ones. In other words you need to consider both how much was taken and the importance of the bits taken. This is easier to judge in other types of copyrighted work. In a song it’s easy to label the catchy chorus or melody as very important parts. In a movie it could be the scene with Jack and Rose on the railing of the Titanic. In a poem it could simply be a couple of lines of written text. But in a video game, what are the “most important” parts? Is it the engine it is running on, the particular artwork or music used or character design? With video games it’s hard to isolate a single element since they are all required to create that game. Each thing on its own is not necessarily that important, but bringing them all together is what makes a game. Are big, iconic set pieces the most important parts of a game? What about the section in Unchartered when he’s battling his way across the top of the train? That was a really iconic part of the game, but there’s no way they could prevent any other game developer from making a game level involving a train. What I’m trying to say is, are there any segments of a game that are so outstanding, so defining to make that the most “important” part of the game, a part that shouldn’t be copied across into a video review? Even art assets from a game as popular as Bioshock may have been heavily influenced from an old Japanese comic from the 1970s, as shown here. So Sterling played about 10 minutes of what I can only guess is a much longer game. In the second post from the studio executive above they actually argue that Sterling didn’t play enough of the game to fairly critique the whole thing. It would be difficult for Imminent Uprising to then turn around and argue that he also somehow copied too much of their copyrighted work. Factor 4 - Effect of the use upon the potential market for or value of the copyrighted work Now this I think is a very interesting part of the test and one that seems to strike closest with the concern of Imminent Uprising. Was Sterling's use of the copyrighted material so negative that it deprived them of sales to their game? Even if it did, is that sufficient grounds for a DMCA notice? This limb often appears in cases where someone has taken someone's else's copyrighted material and copied it across into their own product in the same medium (e.g. Film, books, poetry etc). For example, if I took the opening guitar portion from Stairway to Heaven and put it as the intro to my own song, I have created a product that may directly compete with the original song, which may result in lost sales of the original. Or what if I start making exact duplicates of expensive pictures, but I sell mine a lot cheaper than the original so everyone buys mine instead? In such a case I've stolen copyrighted material to create a product that is in direct competition with the original. I've reduced the market for the copyrighted product, which would likely not count as fair use. But in Sterling's case he took content from one medium (a game) and transferred this into a completely separate form (a video review). As such the two products aren't really in direct competition with each other - if you want to play the game, then you can still only buy the game from the developer. But a US case called Rogers v Koons has held that direct competition isn't required for there to be a breach of this limb. In this case an artist saw a photograph, then proceeded to make and sell sculptures copying the scene portrayed in the photo. The photograph owner was never going to make sculptures himself, but the court held that this counted as unauthorised use, even though there was no direct competition. This case shows that there can be copyright infringement even when the products aren't directly competing with one another. You could argue that Sterling's harsh review will likely have discouraged anyone from actually buying the game. Isn't this a clear case where copyrighted material has been taken and used in a way that has a negative "effect of the use upon the potential market?" It's possible to argue that this negative criticism led to a reduced volume of sales for the game, but then you have to remember that negative criticism is one of the things which is almost expressly permitted under section 107. Also, would it even be possible to calculate how many sales, if any, Sterling's review cost the game? In legal terms this would be the question of loss - and you can't recover potential loss - you can only ever reclaim actual loss suffered. Overall I'd say that this is the most promising limb for Imminent Uprising to try and argue their case under. As I said before though, courts have filled hundreds of pages debating how this should be interpreted and I can't begin to do this topic justice in just a few short paragraphs. SUMMARY Summary of these points
It’s important to note that it’s not necessary to satisfy all 4 limbs above to be fair use. Even if you fail one it may be outweighed by another. Also, s107 states that these 4 factors are only examples of the factors that can be considered (by the words “shall include” in s107) so the court could consider additional things if it chooses. The very brief review above shows how difficult it would be for Imminent Uprising to found a claim of copyright infringement and thus justify their DMCA notice. But how can we expect people to properly defend their copyright when the law is so ludicrously complex and unclear? Does everyone have to sit down and read through the legislation and hundreds of pages of case law before they file their DMCA notice? Even if they did this there's no guarantee they'd get the right answer since there's so much room for debate which can only be settled by a court. The law in this area is a mess and until it's changed we're going to keep seeing cases like these. If you've made it this far I have to commend you; I only really realised the number of issues this would throw up once I started writing about it. Please remember that this article was never intended to draw solid conclusions - who was right, who was wrong, how the case would be decided if it went to court etc. It was simply a quick tour through copyright legislation to increase your awareness of the issues involved. Imminent Uprising are in a difficult position. They had their work criticised very heavily and reacted emotionally as I'm sure most of us would. But developers and publishers need to know that baseless filings of DMCA claims is very serious - it makes that clear when submitting such a notice on YouTube. This is particularly so for people who make their living off of YouTube, where you can only receive a certain number of DMCA claims before you account is permanently banned; these are people's livelihoods you are playing with. It will be interesting to see how this case progresses and, if it does, on what grounds. Hopefully the next time you see or hear someone simply saying 'yeh, that's obviously fair use', you'll have a greater understanding of what this terms actually means and be able to challenge them why they think this is so obvious - because legally there's never any certainty and I doubt whether the majority of them have ever even bothered to look at the law behind this. I wish all the best to Sterling and Imminent Uprising and sincerely hope that this can be resolved maturely and without resorting to litigation. Thanks for taking the time to read this.
9 Comments
Robert Ryan
12/9/2014 01:56:35 am
"Hopefully the next time you see or hear someone simply saying 'yeh, that's obviously fair use', you'll have a greater understanding of what this terms actually means "
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Legal Gamer
12/9/2014 04:21:20 am
Hi Robert,
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Stanley Ford
9/20/2016 08:22:14 am
I very much appreciate your descriptions of the legal issues around DMCA and Fair Use, as well as how they may apply in this particular case. You have a gift for explaining complex issues, acknowledging and leaving room for emotions without letting them take the place of rational thought. I wish more internet postings were constructed in a similar manner, and look forward to reading more of the same articles on your site. 12/23/2015 06:02:26 am
Saying things without any justification for saying them is a huge problem with our internet generation.
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12/23/2015 10:25:02 am
What’s this DMCA I’ve been hearing so much about? Where does this come from and why do we need it? Why does DMCA apply to YouTube? Does this apply to me? What’s the doctrine of fair use? Are there any exceptions to this? Questions like these are all central to cases of copyright infringement.
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Saying things without any justification for saying them is a huge problem with our internet generation.
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7/1/2022 06:31:54 pm
The recent case involving Kim Dotcom and Megaupload has shown that, even though many experts agree that US copyright law doesn’t apply outside US borders, Thank you for making this such an awesome post!
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7/1/2022 08:21:13 pm
Even if they did this there's no guarantee they'd get the right answer since there's so much room for debate which can only be settled by a court. I’m so thankful for your helpful post!
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