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.