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Why was it so easy to weaponize copyright against PewDiePie?

Firewatch

Over the weekend, superstar games vlogger Felix “PewDiePie” Kjellberg blurted a vicious racist insult during a game of PlayerUnknown’s Battlegrounds. The outburst sadly wasn’t too surprising, although PewDiePie promised to give up casual Nazi jokes last month, and it wasn’t the first time he had said that particular word. But this time, indie studio Campo Santo took the unusual step of filing a copyright takedown against PewDiePie’s playthrough of its 2016 game Firewatch.

“I am sick of this child getting more and more chances to make money off of what we make,” said Campo Santo co-founder Sean Vanaman in a series of tweets. “His stream is not commentary, it is ad growth for his brand. Our game on his channel = endorsement.” PewDiePie appears to have removed his Firewatch video in response, and Vanaman urged other developers to follow suit in banning him from streaming their games.

The Firewatch takedown probably isn’t a big financial blow to PewDiePie, compared to what he’s lost during earlier controversies. And it’s heartening to see developers condemn racist behavior, even when it might hurt their bottom line. But it touched a long-running sore spot in the video game community: the nebulous power copyright law gives developers over the people who build on their work.

Live streams or prerecorded “Let’s Play” videos are hugely popular and often lucrative, but they rest on a shaky legal foundation. Almost by definition, gameplay videos are full of game developers’ copyright-protected art. So without a studio’s permission, these videos are only legal if they count as fair use — a DMCA exception that protects criticism, parody, and other creative repurposing of a copyrighted work. Fair use is a broad standard decided on a case-by-case basis, but artists and entertainers in some fields can look at past legal decisions for a sense of what’s acceptable. For Let’s Play videos, these cases are almost nonexistent.

Kendra Albert, a fellow at Harvard’s Berkman Klein Center who works on video games and intellectual property, says that’s because there’s a largely symbiotic relationship between studios and video creators. “Most game companies understand that it's often in their economic interest to allow streamers to stream the game and send it out to a broader audience, and so there hasn't been a ton of litigation over it,” says Albert. Some studios, including Campo Santo, offer explicit permission for streams and Let’s Plays. Most video makers don’t want an adversarial relationship with developers, either — especially if they cover one big game, like Overwatch or League of Legends, full-time.

But when disagreements do come up, they’re all the more frustrating because of this ambiguity. Major companies have sometimes issued arbitrary or onerous restrictions: Persona studio Atlus briefly threatened to suspend players who showed too much of a game, and Nintendo angered YouTube video makers by banning them from placing ads on Nintendo game footage. Streamers can fight these rules in the court of public opinion, but without much sense of their legal options.

If PewDiePie’s Firewatch playthrough counts as fair use, then Campo Santo has no control over the video. If the studio knew it was fair use, it could even be punished for filing a false report. Without an actual trial, though, these are fairly abstract hypotheticals. Fair use decisions depend on a host of factors, including how much material from the old work is used, whether the new work lessens its value, and how much the new work “transforms” its source material. For PewDiePie’s video, a court might consider how deeply his commentary critiques or analyzes Firewatch, for example, or whether he’s using more footage than necessary to get his point across. There’s no cut-and-dried checklist, and not enough closely related cases to guess at a verdict.

And if the video isn’t fair use, then Campo Santo can enforce the copyright however it sees fit. Since its site offers blanket approval for Firewatch videos, it would have trouble retroactively suing PewDiePie for copyright infringement. But that’s different from selectively revoking future rights, even over an objection to something from an unrelated video. “You're not required to license your work to everyone under equal terms, at least in this context,” says Albert. PewDiePie could still show Campo Santo games within widely recognized fair use boundaries, like brief video clips with direct commentary. But anything beyond that would become legally risky.

You could conceivably argue that PewDiePie’s videos are definitely fair use, or that Campo Santo is breaking an implicit promise in its streaming policy. But there’s no formal contract (as far as we know) between Campo Santo and PewDiePie, and Let’s Play videos’ copyright status is unclear enough that Campo Santo isn’t unambiguously overstepping its bounds. Unless they pursue an expensive lawsuit with little to gain, these arguments are mostly moot.

PewDiePie’s biggest source of strength right now probably isn’t fair use law, but the norm against copyright takedowns. The EFF and other internet freedom groups have strongly condemned using copyright laws to enforce speech codes, and game developers have abused the DMCA to block negative press coverage. In general, so-called “DMCA censorship” is despised in both the general online community and the games world specifically.

Campo Santo isn’t trying to protect itself from criticism; if anything, it’s sacrificing money by banning the video. And unless developers blacklist PewDiePie en masse, its decision probably won’t shake the detente between streamers and game-makers. It will just mark one small studio’s dissent against a very rich man who yells casual racist insults in front of millions of people. But even so, its decision marks a softening of that long-held norm. Vanaman himself says he regrets the decision to use a DMCA notice, telling BuzzFeed that “censorship is not the best thing for speech.”

Campo Santo’s decision reads like a faint echo of the past month’s de-platforming of white supremacists, even by companies that had long tolerated their existence. It’s a reassuring sign that certain kinds of bigotry are no longer considered harmless enough to be tacitly accepted, but an unsettling move for anyone who’s watched organizations twist intellectual property law to shut down political critique or lock out competition. And beyond politics, it’s a reminder of how weird it is to have an entire entertainment medium operate in legal limbo — and how little we usually have to think about it.