Jeremy Guenette 10/17/2013

IP Theory

DRAFT_v1.2

Vicarious Gaming :: The Legal Implications of Self-Published Gameplay Footage Online

//WORKING TITLE

TO DO: Legal Citations/Authorities, Draw Conclusions/State Position, History?, Judicial Policy/Recommendations

Introduction

1 Recent years have seen an enormous growth in the availability of and demand for video footage of video game gameplay online and in a variety of contexts.

2 The popularity of video games has seen enormous growth over the past two decades (//reference), creating communities and sub-communities interested in very specific gameplay elements.

3 The dramatic rise in popularity of unauthorized publication of video footage obtained from

4 The popularity of Youtube and live-streaming services creates a number of unresolved legal issues concerning the publication of video game footage online.

//explain terms? Footage/gameplay -> video footage, NOT piracy.

Factual Background

Forecasts predict the global market for video games is expected to grow from $63 billion in 2012 to $78 billion in 2017.[i] PC games such as League of Legends and World of Warcraft have ingrained themselves into popular culture to a degree unseen since the likes of Pong and Pac-Man, generating enormous communities of active players.[ii] In addition, the explosive growth of mobile platforms such as smartphones and tablets, fueled by rapid hardware improvements in handheld devices, have made video games available to entire populations – and generations – that have never been video game consumers in the past. And the availability of broadband internet access, market demand, and adaptation by commercial publishers mean that as much as 75% of game software revenue will be delivered via digital distribution by 2018.[iii]

//need more/better numbers :: http://www.google.com/trends/; http://store.steampowered.com/stats/; http://www.esrb.org/about/video-game-industry-statistics.jsp; http://www.theesa.com/facts/; https://minecraft.net/stats;

Within this context a number of significant legal questions emerge surrounding the application of traditional intellectual property law. Some of these questions tread familiar territory – the usefulness or effectiveness of software licenses, the nature of electronic copies as fixed expressions, and liability for contributory infringement. Because many of these issues affect the World Wide Web, they’re recognizable – courts have been struggling for years to answer some of these questions, though only with varying levels of success.[iv] Other questions are new, and have not been directly addressed in the judicial context. One of these inquiries concerns the increasingly popular practice of self-publication by players of video gameplay footage obtained from copyrighted software.

The appearance of this footage varies dramatically both in the methods of distribution and character of the content.

Distribution Techniques

There are two general categories of self-publication of gameplay footage – live streaming commercial platforms, and traditional recording-to-upload services. Live streaming platforms allow individuals to act as broadcasters by using ordinary computer and electronic equipment to record the visual and audio output of software programs being run on a personal computer or video game console. Using a mixing application[v] and a web-based casting service[vi], the broadcaster captures footage of a game being played locally, and viewers are able to watch and communicate in real-time (or with a set delay) with the individual playing the game via a chat-service. Although still a relatively niche market, streaming sites like Twitch.tv, an offshoot of Justin.tv which has now far surpassed its predecessor’s success, are increasingly popular.[vii] These sites generate revenue by displaying ads periodically during the broadcasts, and split this revenue with the individual broadcaster (the “caster”).[viii]

Broadcasters themselves fall into one of two general categories – professional players who earn income independently by playing video games competitively, and hobbyists who stream content either for their own enjoyment or to supplement other means of income.

Alternatively, a player can record footage of themselves playing a game, and then upload that footage to media-serving websites, the most common being Youtube. This has several advantages over live-streaming. First, access to a larger audience of potential viewers; Youtube’s popularity means a popular uploader has access to a much larger potential audience. On the other hand, there is significantly more competition for that audience, and it can be very difficult for an uploader to distinguish themselves from potentially thousands of others uploading similar content.

Secondly, Youtube offers monetization options that are more accessible and firmly established than what’s available from streaming sites like Twitch.tv. Although Twitch allows users to generate some revenue by displaying commercials, the number of commercials a broadcaster can display is limited in the interest of protecting the viewing experience (as well as ensuring the value of the advertisements – who would presumably be unimpressed by broadcasters who did nothing but run commercials while knowing or even encouraging their audiences to mute them and allow them to run continuously in the background). Youtube, on the other hand, has partnership agreements which are more proven and stable means of earning ad revenue. Although Twitch offers certain broadcasters the opportunity to sell “subscriptions” to their viewers, and rewards subscribers by not displaying commercials, this opportunity is only available to broadcasters who reach a certain level of sustained popularity, which can be more difficult to do considering Twitch’s smaller audience.

Lastly, Youtube allows for on-demand playback – a viewer does not need to “tune in” to a live broadcast, and can access the content at their convenience. Although Twitch automatically records broadcasts, it does not offer the same tools that are available to Youtube uploaders in the form of playlists, on-screen annotations, and granular quality options.

Character of the Footage

The character of the footage being published either via a live-streaming site or a traditional recording-to-upload service is enormously diverse. In most cases, the uploader will overlay their own commentary on top of the visual and audio footage from the game while they’re playing. This commentary could be a simple audio recording of their voice, or it could include a video of themselves recorded while playing the game. This commentary varies between humorous comments about the game, criticisms about design choices, explanations about in-game decisions, tutorials about how to achieve objectives, updates about personal lives, or general topics of interest that have nothing at all to do with the specific game being played.

One category of content is commonly referred to as a “Let’s Play.” This involves playing through either a portion of a game, or the game in its entirety, and allowing a viewer to “play along” with the uploader and experience the game as if they are playing it themselves. Obviously, watching someone else play through a game is a substantially different experience than playing through it yourself – but there is an enormous emerging demand for the kind of entertainment Let’s Plays provide. This entertainment can be instructional, especially if the player is particularly skilled at a particular game, or has an unusual level of experience with it. Or it can entertaining for the complete opposite reason – a particular player might be completely inexperienced with a game, or have a lot of trouble completing it, and the viewer is invited to share in the player’s frustration or learning process. Again, a large part of securing a viewing audience is ensuring that the player’s attitude, bias and mindset is effectively communicated to the viewer – in many cases, viewers are far more attracted to the personality of the player and his commentary than the qualities of the game actually being played.

The analysis of this paper will focus on the copyright issues facing Let’s Plays and their creators. Although the proliferation of Let’s Plays has led to the recording and broadcasting of virtually every popular game ever published, including many open source games and games no longer being sold or marketed by their creators (often referred to as “abandonware”) and therefore unlikely to be subject to any kind of infringement claim, many of the most popular Let’s Plays are full-playthroughs of modern, blockbuster titles. //reference __> examples

Different publishers and game developers have taken very different approaches towards players uploading content of their games. Although each publisher has its own legal policies, there are three general categories: publishers who allow players to upload gameplay footage virtually free of restrictions (although often with restrictions regarding “commercial use”), publishers who require permission prior to uploading, and publishers who attempt to maintain full control of footage of their games online. Publishers in the first and second category can be seen as benefitting from the increased exposure popular Let’s Plays provide (the “free advertisement” argument); popular uploaders can generate millions of unique views[ix], create excitement around the game they’re playing, facilitate player communities, and convince viewers to purchase games they would otherwise disregard, misconstrue or otherwise pass on.

On the other hand, some viewers might arguably watch a Let’s Play as an alternative to purchasing the game themselves. The genre of the game could be a significant factor – a full playthrough of a strictly narrative game that relies on plot devices or offers little replay value might discourage a viewer if he or she feels the story has been spoiled or simply offers them little beyond what they’ve already experienced vicariously through the Let’s Play.

Publishers who fit the third category, and attempt to control virtually all footage of their software property online, are very rare. Ordinarily, the backlash and bad publicity associated with removing content can be enough to discourage this approach.[x]

In virtually all cases, the web services providing the footage rely on the section 512 Safe Harbor clause of the DMCA, and will respond as required when notified by a copyright holder that infringing material has been uploaded.[xi]

Infringement Analysis

While publishers are almost unanimous in claiming gameplay footage as property,[xii] the nature of the product raises some interesting questions about whether the act of recording or broadcasting gameplay is a violation of the publisher’s exclusive rights under section 106 of the Copyright Act. The relevant exclusive rights at issue would include authorization to: 1) reproduce in copies, 2) prepare derivative works, 3) distribute to the public, and 4) perform the copyrighted work publically.

Reproduction

A copyright holder has an exclusive right to reproduce copies of the protected work. In order to constitute a “copy,” the reproduction must be fixed in a tangible medium sufficiently permanent to be perceived, reproduced or otherwise communicated for more than a transitory period.[xiii] Courts have struggled to consistently apply this standard to electronic goods, but have often found the act of loading content into RAM to constitute a “copy” for the purposes of examining whether an infringement of the right of reproduction has occurred.[xiv] This complicates the legal analysis, and potentially expands copyright liability to encompass a large amount of normal, everyday behavior of users online.

In the case of an uploader capturing gameplay footage, there are at least two potential claims related to infringement – direct infringement associated with copying the audio and visual output of a program and either streaming it or recording it for upload to Youtube or other service provider, and a claim of contributory or vicarious infringement if they are encouraging viewers to view their channel or other publishing source and load the copyrighted material into their own RAM to watch the player and therefore create copies. The claim of direct infringement is more straightforward – that without authorization from the copyright holder, the player recorded and published a “copy” in the form of a digital file which contained the copyrighted resources (images, sounds, design, etc). Alternatively, if the End User License Agreement (EULA) acts as a valid contract, and contains restrictions regarding the software’s use, and the player installs the software for a purpose prohibited by the EULA, the very act of installation could be interpreted as a “copy” of the protected software. Ordinarily, the installation “copy” would not be infringing, as the player would have permission under the license agreement – but if an enforceable term of the agreement is violated, that permission can be read as withdrawn.

The question of contributory infringement is more complex. In Grokster, the Supreme Court explains that one could be liable for contributory infringement by inducing or encouraging direct infringement by others, or vicarious infringement by profiting from it while declining to exercise a right to stop it.[xv] If an uploader encourages viewers to watch protected content, either by direct persuasion or even the act of uploading the content itself, and those viewers create unauthorized “copies” on their own machines by loading the video into RAM, the video uploader potentially becomes liable for contributory infringement every time someone watches the video. In addition, the uploader enjoys none of the safe harbor provisions of the DMCA, since they are not a service provider.

Derivative Works

Copyright owners have an exclusive right to create derivative works based on the protected work. These works are new, original products that contain protected elements of preexisting copyrighted material. There’s a strong argument that if the gameplay footage recorded by uploaders or broadcasters isn’t a “copy” as required to find infringement of reproduction, it does nonetheless constitute a derivative work. Similar to a film adaptation of a book, a player takes the copyrighted work contained within a game, and communicates to the viewer the new, specific story of that particular playthrough. Without the original source material, the copyrighted game, there is no story to tell. The player would still be free to tell viewers his opinion of the game, or describe his experience playing it, but the nature of the product is changed; without the game itself running simultaneously with the commentary, the viewer is unable to play along and share the experience in the same way.

Distribute to the Public

The copyright holder also has the exclusive right to distribute copies of the protected work to the public by sale or other transfer of ownership.[xvi] If captured footage constitutes a copy, then uploading and distributing that copy to the public is arguably a violation of this exclusive right. Again, the question of what constitutes a copy is potentially difficult to answer. A video game is inherently participatory, not a passive consumption. If an uploader takes a protected film and distributes it online, the entire value of the film is uploaded; nothing is ordinarily lost in terms of content, unless the quality is insufficient to convey the same experience. Uploading an image or installer for a video game is similar; downloaders would be able to play the game just as if they were legitimate purchasers, no value is lost between the original and the distributed copy. But capturing gameplay footage of just the output of a specific playthrough or portion of a game is not the same as uploading the game itself. The only portion being distributed is the output of the game, the reaction of the software to choices made by a single player – the original uploader. What’s lost in distributing this to viewers is the actual experience of playing the game, the input, which is the primary value contained in the product – the sense of accomplishment or entertainment that comes from directing the game, and managing its consequences.

Perform the Copyrighted Work Publically

The copyright holder has an exclusive right to perform an audiovisual work publically.[xvii] An audiovisual work is defined as one consisting as a series of related images which are intrinsically intended to be shown by the use of machines or devices together with accompanying sounds. Additionally, to “perform publically” includes performing or displaying “at a place” open to the public. At least two questions are applicable here – first, whether a video game is an “audiovisual work,” and second, whether a website constitutes a “place” open to the public. Certainly, a videogame contains images and accompanying sounds, but again, this is not the exclusive content of the work, and the particular arrangement of images and sounds might change dramatically depending on a player’s decisions.

The second question is more difficult. A website is certainly open for access by the public, but the statute seems to be referring to actual, physical locations where copyrighted works might be performed or projected. Whether that distinction is significant is not altogether clear – why would the interest in restricting public performance in a physical place be different from the interest in restricting public performance online? If the goal is to protect the copyright holder’s exclusive right to perform the work publically, then allowing it to be performed online has even more severe consequences, since huge populations would be able to view it with very little effort and expense compared to the logistical and material restrictions on showing a work in a physical park or other public space.

Fair Use Analysis

The exclusive rights held by copyright owners is subject to certain limitations found in sections 107 through 118 of the Copyright Act. One of these limitations is the doctrine of Fair Use, which has developed through various court cases and been codified in section 107. Fair Use provides an affirmative defense to an infringement claim, in the interest of protecting against excessively broad protection which would “stifle, rather than advance, the objective” of copyright law – to encourage original, creative works of authorship.[xviii] Because the distinction between what is fair use and what is infringement isn’t always clear, the Supreme Court has interpreted in broad terms the factors defined in section 107.

Purpose and Character of the Work

The first factor to be considered is the purpose and character of the accused work. Section 107 provides examples of what some proper uses of copyrighted material might look like: “criticism, comment, news reporting, teaching… scholarship, or research.” While certain uses of gameplay footage would qualify more clearly as fair use under this factor, such as game reviews or critical commentary, other uses are less clear. A Let’s Play series might contain significant criticism of the game being played, but whether general complaints or an attitude towards a game would fall into the same category as professional criticism is more difficult to say. Certainly, a player’s natural reaction to a game they’ve never played before, a first impression, could be very valuable to viewers, and might be more effective at providing them with guidance and information they can use to make a purchasing decision than professional, journalistic critique.

Courts have also looked at the “commercial nature” of the use in determining its character. If a player is uploading footage in order to generate revenue, as part of a Youtube partnership or Twitch broadcaster agreement, there is arguably a commercial element. Although this would not be determinative, “the fact that a publication [is] commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.”[xix] In the context of web-based publishing, the question of whether the use is commercial or not is often complicated because we are not dealing with individual, discrete publishing actions. Many players use gameplay footage in Let’s Plays or other forms of entertainment to build their brand name, or attract subscribers to media organizations they write or work for. In that case, the use itself may not be commercial in nature, and it may not be the strict purpose of the use to exploit the copyrighted material, but there is nonetheless a secondary commercial value the uploader receives.

The transformative nature of the work is also relevant to the discussion of its purpose or character. Parody is often guarded by fair use doctrine, even when the footage being used lies at the heart of the protected work. Players who upload footage of a game in order to comment on its absurdity, or failure of design, or poorly written code might be considered parodies, especially if an element of humor is involved. A serious Let’s Play, where a player plays through an entire game start to finish, is clearly less transformative. But the addition of a running commentary does change the nature of the product in significant ways – viewers tune in just as much for the player’s reaction and feedback as they do for the content of the game itself.

Nature of the Copyrighted Work

The second factor to be considered is the nature of the copyrighted work. Of primary purpose here is whether the copyrighted work is published or unpublished. In the vast majority of cases, the gameplay footage comes from published games available for purchase, although at times publishers may require uploaders to restrict their viewers to certain global regions. It’s not uncommon for publishers to grant special authorization to popular players to upload footage prior to publication for promotional purposes, and to issue takedown notices for footage uploaded in violation of nondisclosure agreements associated with beta tests and other restrictive arrangements. In those cases, even without the contract claims, a fair use argument would be difficult to make, since the scope of fair use is narrower with regards to unpublished works in the interest of protecting the right of first publication.

In addition, the nature of the protected work as either inherently creative or substantially factual is a consideration. Generally speaking, it’s safe to say that the vast majority of video games are designed to be entertaining and imaginative, limiting to some extent the applicability of fair use.

Amount and Substantiality of the Portion Used

The third fair use factor is the amount and substantiality of the portion of the copyrighted content used. Game reviews, news, and other secondary purposes for the use of copyrighted material tends to be relatively short and only displayed in the amount necessary to convey specific point about the software. A game reviewer might use portions of the game to explain an element he particularly enjoyed, or to criticize some aspect he disliked. Reviewers and journalists have a strong interest in keeping themselves in front of their viewers, to build popularity and recognition across a wide range of potential uploads.

Let’s Plays and other kinds of entertainment don’t share that interest to the same degree. The appeal of a Let’s Play is usually found in watching the player’s experience with the game; the game itself is the primary material, even if the player’s attitude and commentary is the primary charm. This distinction is often apparent in the way that the footage is presented. A reviewer will arrange the frame so that the majority of the video is focused on the reviewer themselves, and use a smaller frame within that picture to display relevant clips of gameplay or other information. A Let’s Play does the exact opposite; the frame is arranged so the player can see as much of the gameplay as possible, and the video of the player who is actually playing the game will be arranged in a corner of the frame as unobtrusively as possible (if it appears at all – many times only an audio track of the player’s commentary will accompany the video).

Effect of the Use on Potential Market or Value of the Protected Work

The last and perhaps most important fair use factor is the effect on the potential market or the value of the copyrighted work. This bears serious consideration if there is evidence to suggest Let’s Play’s or other playthroughs act as substitutes for the copyrighted work. Certainly, competition itself is not undesirable or inappropriate, but when the competition arises solely through the unauthorized use of the copyrighted material itself, an argument for fair use is difficult to make.

However, it’s significant that under this analysis the commentary and its effects are not relevant. The concern is only whether the use of the copyrighted material alone has an impact on the potential market or value of the game. The test might be roughly articulated as: if the player’s commentary was removed from the video, would passively watching the playthrough damage the value of the game? Again, genre may be a concern – if there is only one way to play through the game, culminating in a cinematic experience that is really only effective once, then perhaps the answer is often yes. On the other hand, many of those viewers might never have had any intention of purchasing the game

//Parody/De Minmis/Ease of obtaining permission online/Market failure?

EULA Implications

Commercial publishers have increasingly turned to contract law to extend their control and establish boundaries around the uses of their copyrighted products. In the contemporary context, virtually all video game software is licensed rather than sold, and that license is government by an End User Licensing Agreement requiring an affirmative click-through agreement by the player. Courts have not always been consistent in determining when a license agreement is formed, if its terms are enforceable, and to what extent such a license can prevent uses which would otherwise fall into the fair use category in the absence of an agreement.

Beginning with Bowers v. Baystate, courts have found that valid license agreements, so long as they’re freely negotiated, can preclude otherwise fair use uses.[xx] In other cases, traditional contract doctrines have been used to find contract formation in the absence of explicit agreement.[xxi]

//Contracting Away Fair Use?

Conclusions/Policy Recommendations

- Importance of objective reality in acknowledging the popularity of content considered ordinary and legally unremarkable online (in other words, the popularity of Let’s Plays and other similar kinds of entertainment have reached the point where a strict ruling that they constitute infringement isn’t going to be taken well by large numbers of gamers)

- Use of copyright law to enforce private interest that isn’t really in copyright (Ticketmaster, Atari v. Nintendo). Patent-like protection without patent limitations???

- Importance of availability of reverse engineering to technological advancement – can this interest be curtailed simply by using a license?