DMCA'd

There’s a few things that keep getting lost in the discussion around PewDiePie and Campo Santo’s DMCA. I just wanted to list them, instead of repeating myself over and over on Twitter.

• The slippery slope argument depends on content creators’ rights being on that slope. They’re not. Technically, all Let’s Play and other content is copyright infringement, and until a precedent for fair use has been set through court proceedings they remain there. YouTuber’s rights are currently at the bottom of the slope, and as such whether the hill is slippery is entirely irrelevant. Any video they create can be taken down over copyright infringement.
• From the first point automatically follows that there is no such thing as legal DMCA abuse unless the claim has no merit. Since the video that Campo Santo filed against does indeed contain a significant portion of copyrighted audiovisual materials from their work Firewatch, the DMCA claim is automatically valid and not abuse. Their motivation is irrelevant, as the DMCA does require motivation, only infringement. At this point, PewDiePie has three options: to contest the claim, to ask Campo Santo to revoke the claim, or he can accept the claim and move on.
• I agree that DMCA is not a great system, but it is currently literally the reason Let’s Play can exist in the first place. Without DMCA, YouTube would not be able to host copyrighted materials of any kind, and all Let’s Play would be prohibited. The DMCA existence is pretty much a requirement for YouTube to exist right now. Anyone arguing for an end to the DMCA is currently arguing for the end of Let’s Play.
• DMCA does not include financial repercussions. It is simply a way to take down a video included infringing materials. PewDiePie has not been sued, and no monetary claims have been brought against him. Campo Santo will not be receiving money for the video or its removal, unless they file a separate claim. That claim they’d almost certainly lose, due to the “license” posted on their site, which granted any content creator the right to post video from the game.
• The “license” on their site is not part of a contract, or any formal agreement. As such, it is revocable at any time. That means that, when they informed PewDiePie they wanted the video taken down, the license stopped applying to him. This is, again, a reminder that content creators rights are currently non-existent. If a license is created in a formal capacity, more dependable terms and reasons for termination could be agreed upon. For now, it’s 100% up to the developers’ discretion.
• The three strike system is not part of the DMCA. It is, in fact, a YouTube specific system that YouTube chooses to impose on its content creators. People filing a DMCA are not informed of the three strike system existing, and while I can’t say for sure, it is likely someone filing a DMCA is unaware of YouTube choosing to impose that system on its content creators (see https://support.google.com/youtube/answer/2807622?hl=en).
• Fair Use is a US law, and even in the US it has not been tested for Let’s Play in court. Whether Let’s Play is fair use or not only becomes relevant if the case goes to court, but that would be precedent-setting and could severely damage YouTubers lifelihood on a irrecoverable scale. In this case, Firewatch being a four-hour narrative linear game of which a two hour video was created that gives away major plot points and almost entirely just shows the game is pretty much the worst possible case you could argue fair use on.
• The fact that content can earn developers money via sales does not diminish developer rights. While Let’s Play is commonly mutually beneficial, it does not require developers to “accept help”, or “be grateful”. Since the content creators also benefit via ads, and via charging developers money for sponsored content, the whole notion that content creators are “doing a favor” is absurd. They’re a business aimed at growth and ad sales.
• Large YouTubers might be personable, but they are brands. The notion seems to exist that PewDiePie is ‘just a person’ being ‘bullied by a company’, but PewDiePie is a formerly Disney-affliated company and brand that currently sells advertisement through an ad-network to an average viewership of millions and a subscriber base of 57+ million subscribers. Business of that magnitude is usually governed by rights and agreements, and PewDiePie has chosen to exist in a legal grey space that has led to the current situation. There is no reason he can not have someone manage rights and negotiate with developers for rights of the content he creates.
• I would argue that YouTube should be encouraged to create a legal licensing path for developers and content creators, or that content creators should work to create a basic framework for developers. Currently, YouTubers have no entitlement to the content they stream, and for their own sake and stability, they should have a way to legally license content. Obviously, developers would be giving away their rights to create that stability for content creators, so basic terms of broadcasting would have to be put in place. I would also argue that there should be separation between ‘hobbyist’ streaming and ‘brand-based’ streaming. How to legally differentiate between the two is not immediately obvious to me, but subscriber base and monetization could be a good place to start.

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