A Streamlined Explanation: The Problem with Streaming Games on YouTube

Felix “PewDiePie” Kjellberg is one of the most popular video game streamers on YouTube with more than 57 million subscribers (Orland, 2017). Because of a racial slur uttered in one of his recent Let’s Play videos, PewDiePie faced a copyright claim by the creator of another game, Campo Santo, who did not want to be associated with the YouTuber (Ibrahim, 2017). This takedown includes, according to Sean Vanaman (co-founder of Campo Santo games) (Vanaman, 2017), all videos containing Firewatch (Campo Santo’s first game and their only title to date) plus any future content published by the studio. This brings to light the question “How can YouTube allow Let’s Play videos and their creators to be in such a vulnerable legal position?”

In order to provide an explanation to this situation, we will approach this question in the following ways. First, we will be critically examining the ethical and legal issues of Let’s Play videos on YouTube and how they affect content creators. We aim to present an academic analysis of the debates surrounding these type of copyright disputes on the platform and the legal gray areas they fall under with current Fair Use laws (Larkey, 2015). Ultimately we will be assessing what YouTube’s role should be. Secondly, we have created and uploaded to YouTube a Let’s Play video that summarises the aforementioned issues as our intervention. By disguising the information and points within the contents of the video, we will hopefully attract viewers’ interest and increase awareness of this controversial topic.

YouTube: A Benevolent Patron or a Neutral Observer?

With the advent of Web 2.0, people as users of information and communicators can now make their voices heard on a variety of platforms online, as well as partaking in the cyberspace experience, which is what might be termed as the next instalment of the saga for a society of information. (Horrigan, 2007). The flow of that information has been closely tied to the private intermediaries present in that realm, which enable us to connect to the world. These intermediaries play a crucial role – one that is becoming increasingly complex due to the factors that are at play on societal, legal, governmental and cultural planes.

In light of the controversy that arose surrounding PewDiePie and Campo Santo, what lingered on the minds of many were the now more visible and publicized problems with YouTube and the legal issues related to content creation and free speech. While these issues were not-so-sudden in their emergence, with previous examples such as Nintendo using YouTube’s copyright claiming system to take the monetisation from videos due to content that clearly falls under Fair Use, for example reviews and reports on their latest games (Sterling, 2017), the highly publicized nature of this incident made them stand out more than usual.

In order to provide a clear answer to the questions that spring to mind within this context, we must first take a step back and examine the legal directive known as the “Digital Millennium Copyright Act”. The DMCA is a copyright law that is in effect in the United States. We have chosen to focus on American law since both YouTube, and a lot of YouTube’s largest gaming channels (Cohen, 2016), are based there. Our focal point in the article will be Title II,which is the “Online Copyright Infringement Liability Limitation Act”, which is a federal law that shields online services providers from liability due to copyright infringement by their users. Of course, such protection does not come for free. In exchange, in addition to many other conditions, online service providers are required to “expeditiously” remove or disable access to the content brought to question (U.S. Cong., 1998). And in that regard, the word “expeditiously” is of paramount importance. Despite having no clear cut, definite legal meaning, it conveys that any delay by part of the online service provider in taking down copyrighted content could be seen as undue, which would render the service provider liable.

When we consider YouTube, which is in a dominant position in terms of online video content and therefore fits the definition of “provider”, it is also inevitable that questions and concerns regarding the way it governs its users, investors, advertisers and clients arise. As disputes on intellectual property and the concept of privacy soar (Grimmelmann, 2007), one is also led to wonder what kind of stance and direction YouTube is taking in terms of establishing a protective and responsible policy towards its user base, as well as the legal and financial ends of its organization, discursively framing the services and technologies it embodies and provides (Gillespie, 2007; Sterne, 2003). As an entity that has an obligation to pursue its profit oriented interests, popularity and active status of content generation economy, YouTube “has to present its service not only to its users, but to advertisers, to major media producers it hopes to have as partners and to policymakers.” (Gillespie, 2010) It is also worth mentioning that YouTube holds the lion’s share with Facebook in terms of profiting from user generated content.  This poses a situation, when considered in light of the Online Copyright Infringement Liability Limitation Act, that can very well be deemed “nebulous” for both the legal and service-oriented parties.

The Million Dollar Question

Given these concerns and the current legislation, we can see why YouTube immediately removes any videos which are flagged as infringing copyright, allowing the producer(s) of content to question the claim and have it reinstated, instead of first making the claimant prove that the video is infringing on copyright. It should be noted that a service provider being found liable after taking down a video is very unlikely, as the costs of suing would prove to be much higher than any damage caused by a delayed response in taking the video down. Still, it is a risk that does exist, and which YouTube wishes to elide, as back in 2015, YouTube announced it would cover legal expenses up to one million dollars for some content creators in fair use contests (YouTube 2015). This bring us to the million dollar question: Do Let’s Play videos infringe on copyright? This is unclear.

Video games are very particular when it comes to copyright law. This is mainly due to the fact that they cannot be copyrighted as works themselves. Instead, a company can copyright the audiovisual component of it along with its source code (Pfeil, 2015). Among the bundle of rights these companies acquire from doing so, is the “public performance right”. Which is termed as the right “to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered” (17 USCA).

Looking into the legislation, the issue of the legality of Let’s Plays initially seems clear-cut: Fair Use permits the use of copyrighted material “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” (17 USCA) . The problematic aspect of it is whether or not Let’s Plays can be categorised as criticism. There’s no legal definition of “criticism”, and Let’s Plays have a format that is different than every other form of criticism so far: they often rely on showing the whole game, that is, all of its audiovisual expression. This seems qualitatively different from the criticism of other types of audiovisual material, although there is no legal confirmation of this since, so far, there have been no legal cases around this issue. Arguments could be made for both sides, and therefore, the only way to completely clear the issue is by developing specific legislation for this type of commentary or by setting a precedent in a legal case.

Intended as an egalitarian, supportive and welcoming platform for everyone, YouTube aims to stay neutral and refrain from leaning too hard in any direction, being the “vox” in “vox populi”, which is understandable when one considers that YouTube’s funding nearly entirely comprises of advertising revenue. (Allen, 2008) However, it is also worth noting that this neutral posterior is accompanied by the platform’s official policy, which “positions it squarely inside the DMCA safe harbor.” (Gillespie, 2010) This presents a defensive footing for YouTube to stand on when claims regarding “infringing content” of any shape or form is put forward. Now position as a mediator that refrains from choosing sides, YouTube provides a unique type of “patronage” (Burgess and Green, 2009) that nourishes creativity, but exercises some control or a lack of it in terms of what gets past its gray areas, something which is also echoed in legal academic circles, with Jack Balkin suggesting that “freedom of speech depends not only on the mere absence of state censorship, but also on an infrastructure of free expression” (Balkin 2008).

Conclusion

YouTube and its contemporaries claim to provide an equal standing to all their users, with the former outlining its mission statement as “Our mission is to give everyone a voice and show them the world.”, on its official website. Taking in the larger implications of that mission statement, it is inevitable that the power and position that is flaunted by an online media giant such as YouTube requires certain not-so-simple decisions be made day in and day out, but in the case of DMCA takedowns and the controversies surrounding the concept of fair use, these decisions “do not necessarily comply with the platform’s content mediation philosophy.” (DeNardis, 2012)

As the nature of the responsibilities tied to these intermediaries is changing rapidly and gaining more and more connotations in terms of civil liberties, their content policies and stance towards user rights becomes increasingly important. In addition to these implications, the flux of fair use and free speech towards a more privatized plane means that informed decisions and transparent content policies play a crucial role, not only in making sure that the philosophy of free speech is preserved, but also setting a precedent for a democratic online environment.

YouTube has every interest in guaranteeing that its content creators are free to continue generating the content that brings so many users to the platform. The attempt to remain neutral might be beneficial to the media giant at this point, since it avoids stepping on the toes of other media corporations, which also bring in a lot of the content currently in the platform (out of YouTube’s most ten most subscribed channels, only one, PewDiePie, is self owned)  but it could be argued that such passiveness in front of such problems might hurt their user base and thus the platform’s rentability in the long run. Therefore, it should take a more active role in pushing for an active discussion of copyright law in face of the new content formats that sparked from current technology and the passing of actual legislation in order to completely and finally clear up this issue. This is for sure no small task, and of course this is not just the responsibility of YouTube, but of every media platform that profits from user-generated content and of the content creators themselves, which means that bringing this to a resolution helps everyone.

Our Intervention

We decided to intervene by exposing the current situation in a Let’s Play. We chose the new indie game Cuphead, which sold over 1 million copies in around two weeks. We hope that YouTube’s algorithm might suggest our video to someone looking for a Let’s Play. Due to its distinctive style and difficult gameplay, Cuphead generated a lot of attention for itself, which should work in our favour. The idea of putting the content inside a video of something else instead of making it explicitly about the subject at matter came from wanting to attract people who wouldn’t usually be interested in it, more passive players who are more focused on the games themselves than the situation around them.

https://www.youtube.com/watch?v=5kYRSVCfPT4&feature=youtu.be

 

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