Microsoft announces what you can and can't do with their games on service like Twitch and YouTube - what does this mean for Lets Players?
So Microsoft has released a recent set of rules that clarify how you can use their content on services like YouTube and Twitch – these can be found in full here. Although these are written in fairly user-friendly language (which makes sense since the average YouTuber isn’t a lawyer) there’s still some industry terminology thrown in there for good measure and phrases that are perhaps more restrictive than you’d first think.
I don’t plan on going through all of these, but there were a few that have been picked up on in the media as particularly important, but also a few that haven’t, which I think probably should have been. This piece isn’t so much a legal analysis – it’s more exploring the ins and outs of the terms from an every-day perspective – usual disclaimers aside, let’s dive in.
Microsoft ‘Aint No Government!
First thing’s first – I’ve read quite a few infuriating comments online along the lines of “Microsoft can’t make laws so we can just ignore these terms.” While it’s correct that Microsoft can’t make laws, it’s completely irrelevant to this. Microsoft isn’t claiming to make any laws whatsoever – they’re effectively putting out an open letter to the world saying what you can and can’t do with their products. It’s kind of like if I lent you my phone, I’d say what you can and can’t do with it. If you breach these terms the police won’t come get you, but I’d be entitled to say, well, you broke my rules, so give me my phone back.
Whenever and wherever you use game footage, you must include the following somewhere in your product:
[Name of the Microsoft Game] © Microsoft Corporation. [The title of your Item] was created under Microsoft's "Game Content Usage Rules" using assets from [Name of the Microsoft Game], and it is not endorsed by or affiliated with Microsoft.
For YouTube videos the most sensible place would be the video description. There’s nothing controversial about this point, but it is important! Failing to comply with this would be an easy way for Microsoft to justify taking down your video, which is why I’m flagging it here.
You can't use Game Content to create an Item that is pornographic, lewd, obscene, vulgar, discriminatory (on the basis of race, religion, gender, sexual orientation, etc.), illegal, hate speech, promoting violence, drug use or any illegal activity, promoting crimes against humanity, genocide or torture, or is otherwise objectionable. Whether an Item is "objectionable" is up to us [emphasis added], but you can expect us to be concerned if a significant number of people in the game’s community or the public at large report the content as offensive.
This is the first of many grounds that basically gives Microsoft carte blanche to remove your video – “objectionable” is entirely determined by them (with passing reference to taking account of the community’s voice – which sounds incredibly dangerous IMO!).
Just to clarify a possible misconception, this obviously doesn’t prevent you from showing games that are “objectionable”, but it prevents you from making content/videos themselves that are objectionable. In other words, you can sit there and stream yourself playing No Russian from GTA (let’s pretend Microsoft hold the GTA IP) with no questions asked, but if you start commentating over the top of that, shouting that the genocide of Russian people is an excellent idea, your video itself breaches the terms, which is clearly not permitted.
On paper this clause is fine – why would they ever let people make “objectionable” videos with their games – but it really depends on how strictly they apply this, and how loose their definition of “objectionable” is. What is ‘obscene’? Does it include swearing? What is pornographic? Would it capture someone streaming a game with their t-shirt off?
Except as described here, you can't sell or otherwise earn any compensation from your Item, including through advertisements in the Item. This means you can't charge money in exchange for your Item, post it on a site that requires subscription or other fees to view the Item, or post it on a page you use to sell other items or services(even if they have nothing to do with Game Content or Microsoft). You also can't use Game Content in an app that you sell in an app store.
So straight up sale of your product is prohibited, fair enough. But earning any form of compensation is also prohibited – except as explicitly provided in the rest of the terms. In other words, rather than saying what is expressly prohibited, (i.e. everything is allowed except A, B and C), they have gone the complete opposite, and stated that everything is prohibited, except X, Y and Z. This makes sense from Microsoft's perspective, since it would be impossible to draft something outlining every single thing that is prohibited, but it also means you’ve got to take a really close look at what is allowed and stick to this to the T.
Their comment “or post it on a page you use to sell other items or services (even if they have nothing to do with Game Content or Microsoft)” is interesting. Does this mean that if I have my own website where I have a store that sells LegalGamer T-shirts and posters, I’m not allowed to post my new video on my own website? Presumably so, but the reasoning behind this seems unclear.
You may make your Item available on Youtube or Twitch and participate in programs on those sites that allow you to earn revenue from ads displayed in connection with your Item.
This is the only thing in the terms that mentions you making money from your video on YouTube. While it’s short, it’s relatively unambiguous, so hard to argue with really.
Once you've made and distributed your Item, anyone else using it also has to follow these rules.
I don’t really understand this provision here. In a lot of confidentiality agreements between parties A and B there’s usually a provision saying something like, if either party wants to disclose any confidential information to another party, C, then party C must agree to be bound by the terms of the agreement between A and B. In other words, C has to agree to follow the rules set down between A and B.
But that doesn’t work with something like a YouTube video, where the creator has no idea whether or not the viewer (party C) is going to comply with the Microsoft’s terms. If I create a video that complies with the terms, but then a viewer takes my video and somehow edits it to breach the terms, can my video be pulled down also? It seems unlikely that this was the intention (and if so it’s absurd), but I struggle to see any other interpretation of this.
In addition, your Items may not use the name of the Microsoft Game in their title to give the impression that Microsoft is the source of the Item, or authorized or endorsed the Item. Items that make referential use of our titles are fine, for example, “Let’s Play Forza Motorsport 5” or “Tips and Strategies for Halo 5.” Using the Game title to tag your Item on social media is fine. We also don't object to "Red vs. Blue" or "Operation Chastity". But we may object to "Halo: Covenant Strike," for example, if it could be confused as something Microsoft produced or licensed, or if it could be mistaken as an official part of the Game. We just want to make sure consumers don't get confused.
This clause, which has been the one getting most people talking, has been tidied up from a previous version which had many people concerned that they wouldn’t be able to use the game’s name in their video title. This doesn’t seem to be the case anymore.
Again, this is one of the tests that is completely up to Microsoft’s discretion regarding whether or not the public will be “confused” into thinking that the video is endorsed by Microsoft. Now, to me, this seems a tad out-of-line with the public’s understanding of how YouTube, Twitch etc work. People go to YouTube largely to watch their favourite personalities play or talk about a game, knowing full well that they aren’t employed, and the video isn’t endorsed , by Microsoft. Or they're going on to watch a review of a product before purchasing it, in which case again it's clearly not an official Microsoft video.
Should Microsoft decide to enforce this provision on a video, they won’t have to prove that the public actually was confused – they would simply turn around and say that the “ordinary person” would be confused. Now in other areas of law this “ordinary person” test is a real thing with certain rules and guidelines, but seeing as we aren’t in a court, Microsoft can mean whatever they want by it – one person could be enough.
So Microsoft have left themselves plenty of wiggle room to pretty much remove anything they want. Although the clarification (from not being allowed to use the game name at all, to being allowed to use it in some circumstances) was intended to help people, I think it muddies the waters even more! Now we’re being told that we can use the name in some circumstances, so long as there is no “confusion” – without really being given much detail of what “confusion” means. It’s fair to say that we should go by the common meaning of the words, but my idea of “confused” may be very different from yours, and likely very different from Microsoft’s.
And this was by no means accidental - it’s smart legal drafting, to give Microsoft the power and flexibility it needs. And honestly, that’s fair enough. As owners of the games, they are entitled to do what they want with their property rights – even going so far as to prohibit all videos if they wanted (although this wouldn't make sense for a lot of reasons).
Whether or not these rules are considered “fair” or not will really come down to how stringently Microsoft applies them. Microsoft have been greatly improving their public image recently and to pull a Nintendo might not go down so well.
As to why they have done this, I can only speculate. There’s talk that it’s to control SEO rankings so that their official videos get pulled up as first result on YouTube, but seeing as YouTube rankings don’t go by video name/description alone (at least I think they don’t – one of the mysteries of YouTube), and that un-official videos can now contain the name of the game anyway, I don’t know if this theory holds weight. It’s likely that PewDiePie’s video on whatever game will still likely rank above any official one.
I think it’s more of a front-loading precaution – to get these guidelines in place, so when that one video that completely violates everything comes along, Microsoft can point to this, say it has been in place for ages, and justify its removal.
It’s easy to come at this from the perspective of how this is going to damage YouTubers and content creators – big ‘ol evil corporations and such. But in all honesty, Microsoft could have likely pulled a number of videos on grounds of copyright infringement (on which I wrote another piece, here) anyway if they had really wanted to – so these terms hardly give them anything additional.
I think these terms are incredibly broad and give Microsoft a lot of power. But I also think they are fair and serve as some important clarification on at least a few issues - whenever a company is open about their content use policies this is at least a step in the right direction. Like I say, let’s wait and see how these are applied though before jumping to any conclusions.
Header Photo: (c) owned by Square Enix - thanks for making Vivi so awesome!