back to article Developer swings DMCA sueball at foul-mouthed streamer PewDiePie

A prominent indie games developer says he will be filing Digital Millennium Copyright Act notices to forcibly cut ties with a controversial games streamer. Sean Vanaman, co-founder of Campo Santo and one of the creators of the hit game Firewatch, said he will be filing copyright infringement claims against all streams of his …

Perjury

It's illegal to file false DMCA claims against a youtuber just because you don't want him playing your video games anymore.

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Re: Perjury

Is it?

I don't care about pewdiepie or that specific game / developer, but I'm genuinely asking from the legal standpoint.

I'm assuming game developers have some rights / control regarding this, and streamers would need their permission and/or could be asked for some licensing fees? After all, (some) streamers are making a living out of this, in somewhat (and I'm really stretching here probably) the way that cable companies make money off the TV channels they carry, but in exchange for license fees. Of course game developers certainly must be getting lots of sales out of the deal (endless hours of free advertising).

I really don't know (or have any very clear opinion either way), but does anyone know the "legalities" of this?

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Anonymous Coward

Re: Perjury

First, let me preface this with the fact that I am not a lawyer. That said...

While intentionally filing a false DMCA claim is indeed illegal under penalty of perjury, this is not a case of false DMCA claims. As addressed in the article, everyone who uploads a recording of or streams footage of a game is violating copyright and potentially subject to DMCA takedown requests. Most developers choose to let it slide because the relationship is generally mutually beneficial.

Instead, this is simply a case of not filing DMCA claims equally. To my understanding, with regards to copyright law, unlike trademark law, there is no requirement to enforce all violations or lose protection.

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Re: Perjury

I doubt it, Nintendo does it all the time.

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Re: Perjury

A you tube lawyer went over this, On their website they said you are free to stream, They did not put any restrictions so I don't know why people dont voted the above poster.

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Anonymous Coward

Re: Perjury

Certain games (presumably not the one in question) explicitly allow streaming in their license agreement.

E.g. Minecraft's EULA says:

> Within reason you're free to do whatever you want with screenshots and videos of the Game. [...] you can't make any commercial use [...]. If you upload videos of the game to video sharing and streaming sites you are however allowed to put ads on them.

Source: https://account.mojang.com/documents/minecraft_eula

For other games, some countries have "fair use" rights, although exactly what that means varies from country to country. E.g. in the US you might argue that streaming with a commentary was "transformative" and didn't affect the market for the computer game, so was legal under fair use... and if you're willing to fight for a decade and you have a spare million dollars to spend on legal fees to defend the lawsuit, then you might even win.

Note that process defined in the DMCA allows for a counter-notice. So if company X says you're infringing, then you can respond with a counter-notice that says "no I'm not, and if you really think so then sue me". If company X doesn't sue you promptly then the content is supposed to go back up. This is supposed to allow contentious cases to be decided by courts, not the hosting companies, and is supposed to allow the content to go back up if company X doesn't actually sue. However, companies including YouTube don't necessarily follow that process, once they've received a DMCA complaint they may just decide to keep your content down and/or terminate your account whatever you say.

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Re: Perjury

It sounds very far fetched to even consider "streaming" as copyright infringement of any kind or shape.

The game dev is not selling the streaming experience. He is selling the gaming experience.

This might well open a can of unhealthy worms.

And, PewDiePie has raked in millions? Really?

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Re: Perjury

"...this is not a case of false DMCA claims. As addressed in the article, everyone who uploads a recording of or streams footage of a game is violating copyright and potentially subject to DMCA takedown requests."

Because there is no such thing as Fair Use.

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Re: Perjury

I doubt it, Nintendo does it all the time.

Nintendo has a history of questionable statements and actions.

However in this case Nintendo is simply a bully, generally abusing Youtube's Content ID and DMCA systems against those who are too small (or cannot afford) to fight back and protect their rights.

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Re: Perjury

World of Tanks vs. Foch, https://www.youtube.com/channel/UCYmKvoh0a_7yx0PKNtSSrNA

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Anonymous Coward

Re: Perjury

"And, PewDiePie has raked in millions? Really?"

Not sure if he still is, but he was the highest-paid YouTuber, earning around $12m/year (I can't see how - I find him unfunny and somewhat objectionable).

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Re: Perjury

"And, PewDiePie has raked in millions? Really?"

Yes, each of his videos has literally millions of hits within a couple of days and he puts them out multiple times a week.

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Anonymous Coward

Re: Perjury

He's a Nazi.

Any and all means of stopping his ability to use his platform are completely justified.

F*ck that guy

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Boffin

Re: Perjury

funny thing about free speech is your going to hear stuff you don't like.

As soon as you say it is alright to censor someone because you don't like the intolerant racist shit they spout then you become just like the many tyrants of history and today who would silence any speech they disagree with.

If you don't like what someone is saying don't do business or associate with them, but don't try to shut them up. Let them speak loudly and widely so everyone will know exactly what sort of person they are.

I for one would rather have the racists and other intolerant extremists saying exactly what they feel like saying. Makes it easier to know who the bigots are.

As the old saying goes, “I wholly disapprove of what you say—and will defend to the death your right to say it.”

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Re: Perjury

Instead of blindly saying "fair use" I'd suggest that you actually read the legal definition of it. The allowed useage is not as broad as many people think it is.

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Re: Perjury

"...And, PewDiePie has raked in millions? Really?"

Yep. He's currently worth $20m approximately. Don't underestimate the money making engine that is YouTubing/Streaming. If you're good at it, there is gold in them there hills.

[Source] https://www.celebritynetworth.com/richest-celebrities/actors/pewdiepie-net-worth

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Oh Really?

"All streaming is infringement ..."

Is it really? Surely that's only if you're trying to sell it as a product being 'passed off' as the genuine article, which in this case is a playable game. Nobody who watched the stream is playing the game, they are watching somebody else play the game and they know that full well.

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Re: Oh Really?

And not just streaming. Standing next to someone as they're gaming is infringing: you can use the DCMA to deport anyone in the same room without a blindfold. In fact, one gamer, playing outside, can have everyone in America not in a building, deported. I racial slur you not.

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Anonymous Coward

Re: Oh Really?

Which parts are actually copyrighted - the game as a whole, character design, individual models, level design, GUI design, sound effects, music, on screen text and dialogue, etc? When streaming, you're still copying and redistributing the display and audio buffers generated by the game in question, which contain all aspects of the game to an extent except the input mechanism.

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Re: Oh Really?

Really. If we want to split hairs, even *running* the game is copyright infringement. It gets copied to ram, cache, display buffers, GPU memory, the display (if running on a TV, this may also have a cache and filter/buffer the image). Then if you are streaming remotely for room based or wireless based gaming, your doing it all over a second time.

But if we are looking at the social and legal agreements, then "streaming" of interactive medium is generally considered not copyright infringement. However games do also have a lot of music and video content, which is restricted. That and a lot of companies are pushing for total control.

Easy option, I avoid those companies and streamers who are rather distasteful.

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Anonymous Coward

SF office check

Trumped-up drama check

anti-gamer crap check

So predictable.

For the record, vanaman has backpedalled so fucking hard on this that he left a vanaman-shaped hole in the wall behind him. This non-story should not be getting coverage on a major, influential technology journal.

Which is why, I suppose, it's getting coverage on the shadowy remnants of the register.

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Maybe you think it's no big deal and at worst it's just an unfunny joke but he's got form on normalizing racism and antisemitism and he's got an audience. If it's a joke, he should know better. If it isn't, that's worse. Whichever way it is, it doesn't matter, because it's all the same to neo-Nazis:

PewDiePie’s work has been gleefully praised by prominent white supremacists such as Andrew Anglin, editor of the Daily Stormer, an American neo-Nazi news blog. On 22 January, the Daily Stormer changed its motto to “The world’s #1 PewDiePie fansite”, and Anglin wrote a blogpost congratulating Kjellberg for “making the masses comfortable with our ideas”.

PewDiePie thinks 'Death to all Jews' is a joke. Are you laughing yet?

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Following your logic you're promoting Daily Stormer.

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Anonymous Coward

Nobody thought Nazi jokes were too far before. Still waiting on everyone to condemn Mitchell & Webb and Seth McFarlane.

https://www.youtube.com/watch?v=hn1VxaMEjRU

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Hell I was more offended by the Will and Grace commercial before the nazi thing since they actually call it comedy about a fat dumb woman and some gay guy, I actually woke up to that on TV one night and the jokes were so bad and so was the acting. God couldn't change the channel fast enough off of that garbage.

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Bronze badge

You not appreciating the humor of Pewdiepie does, of course, not in any way affect the validity of DMCA claims against his videos. If you don't like it, I can suggest not watching his videos.

Kinda like how you not appreciating the humor of Daily Stormer does not in any way affect the legality of the site in question. Wait... you are aware it's satire, right? Right?

In any case, if you don't like the humor of that site (which is far, far "worse" than anything Pewdiepie has published) I can suggest not visiting it as well.

(DMCA claims against someone streaming gameplay as part of review or commentary would be utterly bollocks, by the way. The basic issue has been settled pretty darn well in court long ago - before the DMCA or even before the Internet. Most recently we saw this with "reaction" videos which have far less added work than this.)

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FAIL

@DainB: How did you work that out then? Would the DS approve of my message in the same way as PDP's? I really doubt it.

@patrickstar: I don't know PDP's motivation for continually using unacceptable language. I didn't say I believed it was a joke, I said perhaps PDP himself believes it's a joke but it doesn't matter because it's all the same to the DS. Don't put words into my mouth.

I certainly didn't say DS was humourous. If you think it's humourous or continually make apologies for DS, that's your problem. Other people thankfully don't think it's humourous or apologise for them, which is why they've been homeless for the past few weeks.

I wasn't talking about the merits or otherwise of the DCMA request or getting PDP's video removed by DCMA request in this post.

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Silver badge

No, please read again on the off chance you are not being deliberately obtuse:

I am saying it's unknown whether he thinks he's being funny or if he does it maliciously but it doesn't matter either way as it contributes to the normalisation of racism and antisemitism, as the blog on DS said.

I am touched by your willingness to defend the DS' freedom of speech (at least I hope very much it's that), but you obviously haven't heard of Karl Popper and the paradox of tolerance.

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By the way, those mean words (as you lightly put them) encouraged the easily manipulated to begin a campaign of bullying against the mother of the demonstrator who was ran over by a car at Charlottesville. This is at the very least is harassment.

It would probably be classified as hate speech elsewhere and proves that they are not worthy of tolerance. If the justice system ties itself in knots over this, luckily companies in the US can freely choose that the DS will not be a customer of theirs in the same way that I would not freely choose to invite a neo-Nazi round to tea at my house.

So no, I will not be reading a neo-Nazi website using Tor, no matter how many times you post the URL, thanks.

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Anonymous Coward

One thing I'm curious about.. If an African american would use the N word repeatedly, would that person also face the same amount of criticism?

Continuing a bit, imagine a youngster, living in a place where that word isn't heard, watches the streams of that person a lot, growing up without knowing the origin of that word, other than by the manner in which the streamer uses it to refer to himself and other fellow friends, what will happen if that youngster one day tries to adopt the language used by his idol?

I have a feeling there's probably a name for this in social studies and that people are going to yell at me for being g ignorant.

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The whole point of freedom of speech is that you are allowed to say things even if someone finds them offensive. This includes writing political satire even if someone doesn't find it funny, as well. It doesn't matter if what you have to say somehow risks increasing some more or less fuzzy thing that's generally considered bad. Or that some of your readers do stupid things afterwards, as long as you are not very directly inciting specific criminal acts.

Freedom of speech even includes allowing people to do what you are doing here - advocating for it being abolished. Even though this has proven to be far more dangerous than writing mean things about dead people and their families.

That Google, Facebook et al. are all doing something should be a huge warning flag, not something to be applauded.

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To the people that say streaming is copy right infringement you are wrong. There is a such a thing as fair use. H3H3 law suit further clarified this. As long as there is commentary, critique, parody or use on the news it's fair use. Oh and just because Nintendo does it does not make it legal. It just means no one has had the cash to go against Nintendo.

https://www.youtube.com/watch?v=uhn6yrNzM3M

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I think it may be an open question. Streaming the playing of a game, or a walkthrough video, looks to me to be a derivative work. It's not just the game, it's the player's actions to control the game. And the DMCA process can end up in court if there are conflicting claims.

I'm not sure that this is a good answer in this case, but both parties have claims, and I don't have a problem with somebody saying "Don't stream my games again." What bothers me is applying the DMCA to content which has already been streamed.

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Anonymous Coward

Maybe I'm being thick (it happens a lot, unsurprisingly) but how can you file a DMCA take down on a stream? Won't the stream have finished by the time it is put into place?

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Because the video is still on youtube (other video platforms are available) even after the stream has ended - which is where the ad-generated money comes from.

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Anonymous Coward

.... and in other news, the Football Association have announced that they will be taking legal action against anyone recording the action of kicking a spherical ball - while they do not claim any rights over use of an eliptical ball its is believed this will also be controlled once a legal conflict between the Rugby Football Union and the Rugby Football Legaue is resolved.

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You joke but...

That is exactly what some Youtubers are doing. They know two or more parties will attack them for "copyright infringement" so they let those companies kick it off and get stuck in a stalemate, while they keep on kicking along.

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