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Pro Gamers, Streamers, and YouTubers

I was recently invited to speak to professional video and computer gamers (“Pro Gamers”), Youtubers, and Streamers about legal concepts and laws that impact YouTube occupations. According to Wikipedia, Pro Gamers are associated with gaming teams and/or broader gaming associations. In addition to prize money from tournament wins, Pro Gamers may also be paid a separate team salary. Team sponsorship may cover tournament travel expenses or gaming hardware. While such esports have been televised, most are now broadcast via Internet streams. Popularization of streaming has paved the way for game based video content creation by YouTubers and Streamers. Streamers are distinguished from YouTubers by their broadcast medium. The former usually plays unscripted games that viewers can watch in real time, while the latter records and edits streams prior to broadcasting. Streamers and YouTubers enter into agreements with services such as Twitch.tv or YouTube, in which they receive a portion of advertisement revenue from commercials, which run on streams or alongside a broadcast.

Against this backdrop, Georgia independent game developer, Hi-Rez Studios, used the popularity of esports to launch their game, SMITE. SMITE is a free-to-play multiplayer online battle arena game. Players choose from a selection of mythical deities, join session-based arena combat, and use custom powers and team tactics against other player-controlled deities and non-player controlled minions. In the two months of its open beta testing period, Hi-Rez Studios grossed 100K on sales of SMITE accessories, which profit they pooled with 100K to make the 200K grand prize for the tournament. Four teams from Europe and four from North America competed live at Center Stage to win the champion title and the grand prize.

Occurring simultaneously was GameVidExpo. GameVidExpo is the first industry and fan conference to celebrate game based video content as entertainment, and featured Internet celebrities (i.e. YouTubers and Streamers), game developers, and expert panels. GameVidExpo sought programming therefore that attracted those with an interest in creating and viewing game based video content, whether live or prerecorded. My panel spoke about the problem faced by YouTubers, which arises from the Content-ID service. YouTube’s Content-ID service is an effort by YouTube to engage copyright owners and YouTubers to identify protected content and either allow limited use of it or block it entirely. Limited use includes the copyright owner monetizing upon the YouTuber’s video by enabling ads either on or before the video, and tracking, which allows the analytics to appear in the copyright owner’s YouTube account.

If a YouTuber believes the video constitutes a fair use of copyrighted material, he or she may dispute the Content-ID service. The copyright owner then has the option of either releasing the claim on the video, or renewing it. If renewed, the YouTuber may appeal; however, the copyright holder must either release the claim finally, or file a formal take down notice that complies with the Digital Millennium Copyright Act (DMCA) pursuant to Section 512(c) of Title 17. Should the DMCA notice stand, the YouTuber receives one strike on the account. After three strikes for infringement, the YouTuber’s account is suspended and all videos uploaded to the account are removed. YouTubers with suspended accounts are prohibited from creating new accounts.

The problem is the Content-ID service does not allow a court to review whether the YouTuber makes a fair use of copyrighted material. Section 107 of Title 17, states general guidelines used by courts to determine whether a use is fair. Ironically, these guidelines were promulgated in a case involving video game console manufacturer Sega Enterprises Ltd. in 1992. The belief held by YouTubers engaging the Content-ID service is that game play and reviews are fair uses because they function as comment and criticism of copyrighted material. Under the Content-ID service, there is no court to determine the fact intensive inquiry needed for a determination of fair use. It is simply, copyright owner against YouTuber, and neither are lawfully qualified.

Another approach is for a YouTuber to file for a declaratory judgment to determine if such use is fair, but this costs money, which even YouTubers collecting advertisement revenue do not have. Meanwhile, the exhaustion of the Content-ID system (claim, counterclaim, renewed claim, appealed claim) takes time. When time is of the essence in a fast-paced market like computer and video games, such time is a luxury that YouTubers cannot afford. If a YouTuber cannot make timely available comment or criticism, then he may lose subscribers and advertisement revenue.

The issue remains unresolved. Perhaps the market will provide the venue by which YouTubers will find their voice. Or perhaps a legal forum will address the system, which assumes the authority to determine fair use. Stay tuned!

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