Monday, September 11, 2017

Current Events: "Firewatch" and the Let's Play House of Cards

Once upon a time there was a part-time blogger and full-time lawyer who set way too big a task for herself at the same time that a huge influx of cases hit her desk. She lost track of her blogging plans and let her website lapse for like 2 years. Then, one day, a Swede used a uniquely American racial slur  where everyone could see him do it, which lead to a game developer wanting the Swede's videos featuring their game to be taken down. People got ridiculous about the law surrounding this issue, so the blogger wrote something so she could feel like she threw something out there into the ether so people could have slightly more educated fights. The end.

We good? Good. Now let's talk about "Firewatch" developer Sean Vanaman's announcement that he was going to file a DMCA take-down notice against videos made by Felix "PewDiePie" Kjellberg that include footage from his game. I've got opinions on what Kjellberg said, but that's not what this post is about. Too many people are getting caught up in the reason for Vanaman's decision and treating that like it matters for whether or not he can make that DMCA request. As a wise man once said, "They're digging in the wrong place."

When in doubt, look for who's got the property right in a dispute. Nine times out of ten, the person with the stronger property based claim is going to win, no matter how many charities for orphaned puppies the other side contributes to. Once you're thinking in terms of property, it becomes obvious that Vanaman's use the DMCA to take down a certain Let's Play of the game his studio made is exactly what the law contemplates him doing. Moreover, you can start to see how the whole game-play channel business is a total house of cards that was on shaky ground from day one. You can still get mad about it, but there's no serious argument to be made that the developer "can't do that." Of course they can. Should is a whole different argument, and probably the one you actually want to have. Can is boring, and if you're not going to take me at my word, buckle up.

There are some definitions that you need before you can have a smart conversation about what happened with "Firewatch" and Kjellberg. Most importantly, you need to know that the Digital Millennium Copyright Act is a modern addition to earlier American copyright law, and relies on that older law (the Copyright Act of 1976) to spell out what rights creators have in this brave new world where physical objects aren't the only kind of property we have. Here's your take-away for the next paragraph:  the party who holds a copyright is the only one who gets to create or allow others to create derivative works of that copyrighted property, and the definition of "derivative works" is really broad.

That thing is bold is what we're going to be working with from here on out. So now the question is: who has a copyright on what? Without getting into the really unimportant weeds, it is correct to say that the studio that created "Firewatch" holds the copyright on "Firewatch," and it therefore has the rights to decide what derivative works based on "Firewatch" get made. Kjellberg does not hold a copyright on that game and wouldn't argue that he did; instead, his position would be that he held rights to the video he published in which he played "Firewatch" and that the removal of that video from Youtube was a violation of his property rights in the video he created. The way I've got it phrased here, both sides are claiming a right to property and we have to decide who has the stronger claim. This is where Kjellberg and other Let's Players fall into a much weaker position than the game developers and publishers.

I've not watched the PewDiePie video of "Firewatch" and, now that it's been removed, I don't have the option to do so. I have watched my share of gameplay videos from other channels, though, so I know that there are a variety of formats out there that range from substantially edited and commentary filled "highlight reel" types to videos that are just straight up footage of the game being played while the host talks over it and sometimes has themselves tucked in a corner through the magic of green-screening. The difference between these styles might make all the difference when it's time to actually present a serious version of the Internet's favorite defense: fair use.

For the sake of not further burying the lead, let me spell it out: If the "Firewatch" video that Kjellberg put up was barely-edited gameplay with him hanging out in the corner of the screen as he talks, there is no serious case to be made for the video as a fair use of the game for the purpose of creating an original work. Thanks to a certain 9th Circuit Justice who actually took the time to understand what something like an art asset is, we know that people repackaging the stuff we see on the screen and can call "Firewatch" into another product that can be boiled down to "Firewatch, but with a guy talking over the in-game audio and sitting in the corner" is a violation of the copyright holder's exclusive rights. An easy way to think about this is that the question what version of "Firewatch, but with ____" gets to exist is almost always going to be up to the person who has the rights to "Firewatch" and not the person adding the blank.

Let's say it's not that kind of video, though. Let's say that - out of ten minutes of video - five are uncut gameplay footage, two are the host speaking directly to the camera in front of a standard background they use all the time, and three are taken up by game-themed comedy sketches the host put together and acted out with their buddies. Now we have a fight on our hands, and now we don't have easy answers. Has the context of the copyrighted game footage (audio would count too, though) been so altered by the person who used it that the sum total is something new? If so, you've probably got a ball to run with on fair use. Adjust the ratios of non-gameplay to gameplay stuff and you might get a different result. That's law, folks.

In this case, it doesn't matter that the "Firewatch" video was permitted to exist up until now. At least, that's my understanding of copyright - you don't waive your rights through inaction or by accident. You still have the right, you're just not enforcing it. When you do, odds are that the time you spent not enforcing it isn't going to matter. Why does Vanaman get to target Kjellberg's video for a take-down when he's allowed so many other Let's Play-ers to keep theirs up? Same reason why penalties get declined in football - sometimes you get more out of allowing the bad thing to go unchallenged than you do by calling it out. Developers and publishers are happy to work with YouTubers and streamers when the benefits are increased publicity and better sales, but unless that video creator is adding quite a lot of their own work to the mix, whoever owns the copyright to the game being played holds all the cards. That's a big legal reality that not enough people pay attention to: if everyone's good with what's going on, no one's paying attention to the legal specifics.

This video got to exist and earn money for Kjellberg because Vanaman and his company were fine with it existing. Once they stopped being fine with it, they're presumed to have the right to pull the plug. You can argue the ethics of it all you want, but law and ethics are not the same thing. They're nodding acquaintances at best, and justice keeps them on her Christmas card list.

Have your opinion about this. No one can stop you. But if you're having an emotional reaction to this story, I suggest not trying to paper it over with what you think the law is. If there's a grand challenge out there to be made for the rights of streamers and YouTube hosts, it's not going to be made in 140 characters or less, and it's probably not going to be made for the sake of like one video made by one guy a few years ago. 

Friday, October 2, 2015

The New TV: Streaming, Let's Plays, and How The Hell Is This Working?

I don't actually remember when let's plays and channels dedicated to playing video games while being funny about them started to be A Thing. I remember the really old text post let's plays from forum sites like Something Awful, but they were nothing like what we see now. I don't even want to guess what percentage of YouTube content consists of people recording themselves playing a game and posting the footage for other people to watch, but it's a full blown industry now! And the market is even bigger now that streaming services like Twitch (and Hitbox and YouTube Gaming, to a lesser extent) have made live broadcast something that anyone with enough processing power can do. We're going to need years to really wrap our brains around how big of an impact these things have had on the entertainment industry.

And I have no idea why they've been allowed to exist!

I say this as someone who hasn't regularly watched a non-football TV program in about five years (go Giants). The current structure of copyright and trademark law makes it seem impossible that these channels have not only lasted for so long, but have actually been allowed to flourish. If you had described this to me 10 years ago, I would have told you that there was no way YouTube users would be allowed to straight up post videos of the games they were playing and make money in the process. I didn't know much about copyright back then, but I would have been able to tell you that it had to be like if you tried to post an entire movie from start to finish. Fair use is one thing, but essentially uncut footage of a game that the developers would obviously much rather you buy than watch is another.

Well I've gone through law school now, done some research, read some academic texts about it and I still don't know how this trend wasn't smothered in the cradle by copyright holders. By now, people have built entire careers off of let's plays and presumably have a lot riding on those things not all being banned tomorrow, and that still seems very risky. The fair use doctrine is helpful, but if anyone tells you that they know exactly how a judge is going to review the facts of your case for fair use, they are lying. Not maliciously, but it's still a lie. We have pretty good ideas based on how fair use has been applied in the past, but every case has different facts. At best, we have an educated guess and what's scarier is that, once someone finally does have to go to court about this, a lawyer needs to know how to make a judge understand what's going on here and why the judge should consider it a fair use.

Have I mentioned that the average age for a person to begin their time as a federal judge is about 50? And that 12% of the judiciary is over the age of 80?

Another line of questions now: Have you tried to explain the popularity of let's play videos to someone over the age of 65? How glazed over were their eyes? Yeah I thought so.

So is this all going to fall apart tomorrow? Will entire sections of YouTube go soon dark, leaving only Maru videos and ASMR? Are we going to have to cross our fingers and hope Ruth Bader Ginsburg has a grandkid that's really into PewDiePie?

......eh? I certainly don't know.

What I do know is that we have enough information in front of us to try and break this huge blob of uncertainty down into small, digestible parts that can help us find a way to make this all seem legit. I certainly don't want to go back to the bad old days where I had to care what was on actual TV.

Do you? Of course not. So welcome to New Media Month!

Wednesday, September 30, 2015

TwitchCon's Law and Video Games Panel

Obviously I was at home and working this past weekend, so anything of or related to TwitchCon found its way into my brain through Twitter. I saw some discussion about a legal panel going on and I got so excited that I made it my mission to figure out which of the 8,000 stream channels had it running. It's nice not to feel weird, you know?

I only caught the last couple minutes, but I knew I was going to need the V.O.D. in my life at some point. Sure enough, it's been posted, and now I'm happy to be able to share it with you. Check it out for about an hour of real-talk from people who are in the trenches of figuring out just how streaming/youtube can possibly co-exist with copyright law!


Watch live video from TwitchCon BibleThump Theater on Twitch

If the embedded player isn't working, check out the link right here.

Monday, September 28, 2015

What have we learned?: Trademark Dreams Collection

I've had a weird notion the whole time I've been writing on this site that the stuff I'm putting out is at least a little bit educational. I'm sure as hell not replacing actual teacher instruction, and I keep things too simple for it to be a replacement for an actual lawyer's analysis...but I'm trying really hard!

In the spirit of the end-of-topic review sessions I remember from my high school days, let's apply all the things we "learned" about trademarks as a case study:

"Sonic Dreams Collection press splash image" by Source. Licensed under Fair use via Wikipedia
Just when you thought it was safe to put down the brain bleach. (source)
Aw yeah, now that the Sonic Dreams Collection's fifteen minutes of a fame have come and gone, I'm finally ready to get on the bandwagon to talk about it. For those of you who somehow missed the entire Internet for the month of August, Sonic Dreams Collection is an extremely unauthorized "game" using characters and motifs from the Sonic the Hedgehog games and puts them as objects in some Unity-Engine-tastic environments. These different environments let you make "original characters" based on Sonic and manipulate physics objects in the likeness of Sonic characters like Tails, Rouge, and other copyrighted/trademarked characters. I'm not going to bother getting specific up here, but you've gotta see this nonsense. No matter how sober and aware you are, you will certainly feel like you've been tripping balls for a week in the company of a stranger who can't stop telling you all about their favorite tentacle-porn artist on Deviant Art. Hit up Youtube, watch someone play through this craziness if you haven't already, and then we'll start dissecting the legal problems that in no way diminish how good a send-up this is of fandom.

Back? Cool. Remember, you can always drink to forget what you've seen.

Now, let's start with how strong a trademark Sonic is. We know that you can't trademark the general idea of a character running fast in an explorable environment and collecting powerups to beat a boss. If you could, Sonic wouldn't exist. Instead, you can trademark the brand of game you're making by creating a distinctive, "fanciful" name for it. "Sonic the Hedgehog" fits that criteria pretty well since (1) it was quite early to the animal mascot craze for platformers, (2) a hedgehog is a random animal with no inherent connection to running fast, which makes it fanciful, but we do have (3) which is the word "Sonic" being kind of descriptive of the character's speed. Overall, Sega's in a good place to be able to protect that brand...but it's the internet and people who want to make kind of demented fan works about your child-friendly character aren't going to be stopped by a little thing like that!

Webcomic from three years ago, still relevant today.
Stay weird, internet. (source)
And Sonic Dreams Collection is a cluster of games parodying the internet's id under the guise of being "lost" Sega games. We know it's a violation of trademark, but we also know what kind of violation it is. We learned about blurring, tarnishment, and and consumer confusion, and if this was a law school exam question we'd need to talk about all of them. Blurring is when a non-mark holder is likely to cause consumers to associate goods and services other than the mark-holder's with the trademark. It's what you accuse someone of when you're worried about your trademark getting turned into a generic term. Tarnishment is exactly what's going on here since it's pulling a cartoon mascot character from a family friendly line of games into the realm of mature self-insert fanfiction and inflation fetishes...which is kind of funny since I think Sonic had long since been tarnished with those things anyway, but the developers are saying out loud what has been known for years so they get the heat. And then there's consumer confusion, which is exactly what it says on the tin: the claim that people might mistake this for an actual Sonic game collection and have a bad reaction. THAT, is something that I think we need to talk about.

"No one" is going to mistake this for a real Sonic game. You have to go to a special, non-Sega website, put in a password, and then download it. There's no console release, no Sega logo appearing at the beginning, and a few seconds into any one of these games it's going to be pretty obvious that this is a joke. It's satire, and not even really satire about Sonic the Hedgehog. It's a goof on how the internet views Sonic - the subject of millions of pieces of strange, self-inset fanfiction and fanart that often have darkly sexual twists. If you know about that aspect of the internet, you know exactly what this is and can have a laugh about it without even once thinking it was an actual Sonic game.

But note the scare-quotes I put around "no one." We can tell ourselves over and over again that not a single human being would ever confuse the Sonic Dreams Collection with a real Sonic game. Well, my delightful little learners, if you've picked up anything from what I've been putting down this month it's that judges exist in a realm apart from what we think of as "common knowledge." The average federal judge - which is where a case like this would be heard - starts their career on the bench at around 50 years old. He or she does not know what a meme is, and would likely pronounce it "may-may." He or she has never heard of Deviant Art, and the first time they do hear about it they will likely assume that "deviant" means it's a site for weird sex stuff.....which ...well okay, a broken clock is  right twice a day, but that's not the point. There is nuance to this hypothetical case that a judge is straight up not going to catch, even when it seems obvious to us.

Sonic Dreams Collection is not going to be the big case that finally forces us to have this fight in the courts. Sonic Dreams Collection isn't going to be the poster child for the judiciary finally coming up with a useable, consistent definition for what is and isn't "fair use." But I do think we should look at Sonic Dreams Collection as a way of testing our skills for when that case does come. We need to know just how alien all this stuff sounds to the legal system and then figure out a better way to explain it. We can dig our collective heels in, try to force our perspective onto the law, and pretend we're fighting the good fight, but we'll lose.

Let's keep the Internet weird. Let's not lose it just because we didn't know how to talk about the things we care about.

Friday, September 25, 2015

Kickstarting Nostalgia: How Hard Can Creators Lean On Past Successes?

I wonder when we'll run out of things to say about Kickstarter's impact on game development.

Morality, economic viability...we seem to have talked about it all, but one thing I haven't seen much about is whether the respected developers turning to crowdfunding are playing with fire when they lean so heavily on their past games to market their new, independent ones. So far, developers haven't had any problems with their marketing campaigns running afoul of the companies that still hold the trademarks to the older properties, even where those old names are plastered all over the campaign. But that's something I can chalk up to the pragmatic rule of thumb that lawyers hate to spell out for people: If everyone's cool with something, it's cool. Thing is, you should never rely on everyone staying cool. People not staying cool is why lawyers have job.

Pictured: A dude being chill.
Not pictured: The legal profession. (source)
So what happens if everyone isn't cool anymore? What happens if the studios that still own the trademark's on those nostalgic, beloved properties decide they're not so thrilled with those marks being used to get funding for a competing project? The Kickstarter I want to use as our example case is the epic campaign for Koji Igarashi's "Bloodstained: Ritual of the Night." It's long been funded (which, for disclosure's sake, I'll say that I was not a part of), and it's undeniable that his past works are huge part of why it was so successful. Considering how....un-cool Konami  has been lately, maybe it's worth investigating from the outside whether they might try to turn the marketing for "Bloodstained" into another way of cutting down the competition.

The Kickstarter for "Bloodstained" knew exactly how to leverage Igarashi's history on the "Castlevania" series for maximum effect. As kickass as the little movie he made to pitch the idea was, he literally could not have made work without pulling from the imagery and tone that made the Castlevania series such a classic. Common sense tells us that the campaign wants to remind us of stuff like "Symphony of the Night" right off the bat in the new game's title. He's even got a term on the page - "Igavania" - as a description of gothic, exploration-focused action platformers like the ones he's built his reputation on. Even if they don't say it out loud, Castlevania is all over this Kickstarter, and the property is basically being used to sell a non-Konami product. I think there's an argument to be made that Bloodstained is advertising with a trademark it doesn't own. That makes me nervous!

Thankfully, there are protections for people who want to use their past work to advertise themselves on the internet. This is the part where I usually link to some case from back when Netscape Navigator was still a thing and use that to go point by point, but....I can't this time. Trust me, there is totally a case that is directly on point for this and it actually gets cited by courts on the regular...but I'm not going to link it. Don't make me link it, guys, it'll really mess up the search engine terms that bring people to this site. I'll do the best I can to describe it without getting too direct. See if you can crack my code.
Before you bust this thing out, remember that I have absolutely zero creativity for anything
other than crafting terrible, rambling analogies. (source)
In the early days of the internet, there was a very pretty young lady who was well known for photographs that existed of her. These pictures presented her in states of near-to total-undress, and she had built a career out of being in these pictures. Before setting up her own website, this young lady had been in pictures for a certain magazine owned by a man we will call..."Blue Blefner"...and this magazine..."Blayboy"...had at one point named this young lady its...."Blaymate of the Year." On her website, she listed her past work and credentials, including her title of Blayboy Blaymate of the Year. Blayboy found out about this and sued the young lady for misappropriating their trademarked terms. The court ultimately held that she could use her past professional association with Blayboy and her title as Blaymate of the Year as long as it was made clear that she was no longer associated with Blayboy and was operating independently. This case is pretty thorough and gets cited in most of the useful decisions that follow as the internet starts taking center stage in socialization and commerce. One could even say that rights to...bornography...was absolutely vital to shaping the rules that guide internet law to this very day!

Alright, I think I managed to dodge search engine confusion with that top-secret code, but you get my point. As long as it's just one part of marketing that you're doing, use of trademarked names and phrases as a description of your past experience can be okay. But is Igarashi's campaign a little far over the Blaymate of the Year line? I think it might be.

Couple reasons: One, the name of the game. Might as well have called it "Transcastlestaindia: Rituaphony of the Night." Feels like they're pushing hard for the "We're the real successor to C:SotN!" market. Two: "Igavania." I love making up words as much as the next English-speaker, but this one makes me nervous. Where'd you get the -vania, IGA? It's not in the name of the intellectual property you actually have a claim on. It's from someone else's license. Three: Konami. They've seemed to have no qualms about playing the Saturday morning cartoon villain of the video game industry these days. Between the obvious tie in to a property owned by Konami and the fact that Bloodstained is going to look like a direct competitor to any future Castlevania games the publisher might want to put out.

I can fret all I like, but I think IGA and Bloodstained are going to be just fine. And it'll be awesome to see the game when it comes out since it looks cool. I mean, I'm probably not going to be able to play it since my awful reflexes, spatial perception problems, and terrible sense of direction make me bad at action, platforming, AND exploring, but I'll love watching it on Twitch!

Tuesday, September 22, 2015

Current Events: Kickstarter Has Reformed Itself As A Benefit Corporation

.....Is "Benefit Corporation" a real thing?

I don't know about you, but that was my first reaction. Corporate law isn't exactly my professional wheelhouse, but I had to take the course just like every other 2L in the country. I don't remember a thing about benefit corporations. I learned a few things in law school: (1) that corporate law is only concerned with structures and taxation, and (2) the legal system is really poorly equipped to deal with questions of morality unless it's in the context of punishment. Everything I'm sure of tells me that benefit corporations cannot possibly be a thing.

And that just goes to show how much I know, because right after a thread on reddit brought the Kickstarter to my attention I started Googling. Sure enough, they are totally real, but the fact that I didn't learn about them during my law school years is justified by the fact that they didn't exist back then. That doesn't change the fact that I think their very existence is weird, though. As for Kickstarter's take on what being a benefit corporation means, they list such goals as increased transparency, not using the crazy loopholes in US tax law that allows corporations to pay nothing in taxes, donating a portion of their profits to various nice causes like childhood arts education among others, and keeping their CEO pay in check. That sounds nice. I mean...companies that aren't specifically incorporated as benefit corporations can do all this stuff too, but this is certainly not doing any harm. Seriously, I'm kind of an alarmist about law being used for stuff it's not super good at, but I really don't see any harm in it. 
But there has to be harm, right?

Just like how this adorable Pomeranian is clearly plotting something in that sunny field of tulips.
I'm onto your games, you fluffy little fiend! (source)
Has to be. So I went digging through a few states' statutes about these cuddly new corporate entities and found that they're pretty much the same between across the country (can't promise that, though; I didn't look at all 28 states that let you incorporate as one of these things). The results of my search are...still pretty benign, if not especially meaningful. One of the only states where technology companies are going to incorporate is California, so I'm going to look specifically at the legislative language there. Get ready to not be blown away:

14610. (a) A benefit corporation shall have the purpose of creatinggeneral public benefit. (source)

Let me lawyer all over these good intentions. The definition of "benefit" is not spelled out anywhere in the definitions section at the beginning of the statute. As such, the phrase "general public benefit" is basically legally meaningless. Common sense may tell you what that means, but if the world were that simple, my sweet summer children, a former President of the United States would not have told the media "It depends on what the meaning of the word 'is' is." How warped does being a lawyer make you? I understand that sentence. THAT's how warped.

Damnit, man, you didn't have to crystallize everything wrong with lawyers in
one sentence like that! Spread it out!

So you give me the phrase "general public benefit" and I want to know: what's the minimum number of people who would be "the general public?"; what metric do you use to measure "benefit?" ; can you only create benefit through disbursement of money?

Now let's take it down to specific hypotheticals: If a movie or tv production company takes all of the leftovers from their craft services tables to the local soup kitchen after they wrap for the day? Would that be enough for them to reincorporate as a benefit corporation? Or how about if the board of directors for a regular corporation promises to use some of their lobbying power to pursue wildlife preservation legislation? Can they be a benefit corporation? And how about this old favorite from my area of the country: If an executive uses their bonus to build an additional wing on their house, thus employing contractors and construction workers as well as creating demand for things like lumber and stone, is that executive not contributing to the economy in a way that benefits multiple members of the public? Are you a benefit corporation if a bunch of people are going to be paid to build a bowling alley onto your CEO's house?

The thing that really guts my ability to take benefit corporations seriously is the lackluster "enforcement" provisions that only permit people already inside the company to sue the company for not making good on its purpose of being a nice guy. If a benefit corporation goes about its business just like any non-benefit corporation does, the general public cannot take legal action to enforce those promises of doing good. And are they really going to do that when there's a sweet personal bowling alley in it for them if they keep quiet?

There could have been plenty of fodder for scrutiny on this whole Kickstarter-Is-A-Benefit-Corporation thing, but the law is just too flimsy for that switch to have much weight. I think it's super nice that Kickstarter wants to do good in the world and donate to charity. That's awesome! But they didn't need to become a special class of corporation to do it. Ultimately, this is a feel-good measure without any real substance, but sometimes the message is what's important.

If you were worried that this would restrict Kickstarter's ability to host a variety of projects, don't be.

Monday, September 21, 2015

Sorry about the lack of post today

I had a post topic all ready to go, and it's mostly written out, but a pretty huge wrench got thrown into my plans.

Right around the time of day I'd be finishing up, something happened that really knocked the wind out of me.

Our neighborhood had a gray and white stray cat that roamed between houses for food and shelter from the rain. Every family seemed to have a different name for him. Over the last couple years he'd mostly stuck around our house. He'd get dinner here every night, hung out on our porch when the weather wasn't great, and was a pretty awesome buddy for our indoor-outdoor cat. He didn't like staying inside for too long, but one of the local families had hung onto him long enough to get his shots and have him neutered. He had the best of both worlds

But now he's gone.

Some moron hit him with a car and just left him there. Just left our buddy on the side of the road. We picked him up and we're going to give him as much love at the end as we did when he was still alive. I'm going to miss his goofy crossed eyes, his squeaky howl-meow, and his big fluffy tail. I'm gonna miss him sitting belly-up on our deck for hours at a clip. I already miss our buddy.

I'm just not in the head-space to write about benefit corporations and Kickstarter. I just want to be sad right now and miss my weird, squeaky, transient kitty friend.

Bye bye, Frenchie/Pedro/Poirot/Eddard Wolfcat, Lord of Wintermeow. It hasn't even been a day and I already miss you.