Archive for Politics and Law

What’s All This About Let’s Play Videos?

Earlier today, the news started circulating that Nintendo plans on monetizing videos that feature its video games. Not all videos mind you, just videos of certain unspecified lengths. Here is Nintendo’s statement to the website Go Nintendo:

As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property. For more information please visit http://www.youtube.com/yt/copyright/faq.html

It quickly became apparent that this was going to impact Let’s Players, or people who record and publish walkthroughs, tutorials and other lengthy game related material on Youtube, the most. Many Let’s Players and Nintendo fans were justifiably upset by this move from Nintendo. It seems that Nintendo underestimated its fans and how they would react to this move.

In response to this, Lars Doucet, the creator of Defenders Quest, started a list on Reddit of various game companies and their stance on the creation and monetization of Let’s Play videos. We quickly added our names to this list, although we have yet to release a game of any significant size. However, we seem to be in the minority in our stance of not having a written policy on this matter. I want to take a few minutes to explain why.

At Divine Knight Gaming, we believe strongly in Fair Use, or Fair Dealing in some countries. Fair use is a limit on the control that copyright holders have on the content they create but sell to fans. With fair use, someone can buy or otherwise legally obtain a copy of something covered by copyright, and the holder of that copyright is limited in what they can tell the customer in regards to what they can and cannot do with it. This fair use is one of the reasons why we have things like game rentals and a used market. It also covers other uses of games such as creating video reviews, walkthroughs and such. The key to fair use is that you either aren’t making a full copy of the work, or that what you do copy is limited in scope as to not infringe on the market for the original.

If you want to read more about fair use, you can check out the fair use clause of US Copyright law.

But for us, we don’t think that creating a video of you playing our game is anything but fair use. How can it not be? You are not creating direct copies of our games. So you are not infringing our right to be the sole distributor of our game. The videos are clearly transformative. Meaning, it is not a substitute for people buying our game as watching a video is a vastly different experience than actually playing it. Additionally, the majority of let’s play videos include content, such as commentary, that is not created by us. That is the copyright of the person creating the video. We provided a canvas, they made the painting. That is how we see it.

So why not write up an explicit license or statement allowing for such use? Because it is not in our right to grant you permission to do something in which you have a legal and natural right. That would be like me giving you permission to breathe or eat. We couldn’t stop you if we wanted to. Even if we wanted to, we would have no right to prevent you from doing it.

Of course, some people seem to side with Nintendo on this issue. But we can’t. Nintendo, while it created the games featured in the videos, has no right to the other creative aspects of the uploader. They did not write and record the commentary. They did not chose which scenes or in which order to include. They did not chose the sequence of actions of the player character. They provided a canvas for which they were legally and justly compensated for when the let’s-player bought the game. That is the extent of their claim.

So, if you are interested in creating videos featuring any of our current or future games, we are not going to give you permission. You don’t need it. Your desire to create is all that is required.

Why Is Our Logo Censored?

You may have noticed that our logo is censored with a link pointing to American Censorship. There is an interesting story about it.

What is happening is the US government at the behest of a number of media companies such as the RIAA, MPAA and the ESA are working to pass some of the worst copyright legislation in US history. These two bills are titled “Stop Online Piracy Act” in the House and “Protect Intellectual Property Act” in the Senate. What these bills hope to accomplish is a reduction in movie, music, game and software piracy as well as reduce counterfeit goods from entering the US.

They hope to achieve these goals by giving sweeping power to the US Attorney General and copyright holders the ability to prevent ad providers, credit card processing firms and DNS providers from working with websites that are “dedicated to infringing activities”. These bills would also make it illegal to stream or upload any video or song that is covered by copyright that you do not have rights to.

Sadly, these bills will be used to censor a lot more than copyright infringement. Under these bills, sites like YouTube, Twitter, Flicker, Facebook and any other site that allows users to upload content will be liable if anyone uploads copyrighted materials without permission. That means that if someone uploads a video to YouTube that infringes a copyright, movie studios would be able to have all of YouTubes services cut off and whole swaths of legal content will be censored as a result.

That isn’t even the worst of it. Currently under the DMCA, copyright holders can only ask for certain content to be removed. If the site owner removes said content they maintain what is called “safe harbor” protections. This prevents the site owner from being sued for copyright infringement for something a user of the site did. This is a good thing for sites like YouTube because safe harbors have allowed it to continue to operate and be a vessel of free speech for millions of people.

Under SOPA, all that goes away. Now, it doesn’t matter what the site owner does, they will have no safe harbor to protect them. If only one person uploads a copyrighted song or video, the whole site is gone even if the rest of the millions of videos are perfectly legal.

Additionally, SOPA and PROTECT-IP have no punishment for false accusations. A copyright holder can have a site removed and if it turns out to be a completely legal site, there is no punishment for the false takedown. Nothing happens to that copyright holder. That is beyond bad. There should be some kind of punishment such as a fine of $150,000 per false takedown. But no. They can get away with it.

One last thing I would like to share is that under these laws there is also no court involved. Copyright holders can just fire off letters at will to ISPs, DNS providers, Credit card companies and ad companies and those companies have to follow the law or they can be prosecuted for copyright infringement that had ZERO to do with them. This is absurd on a major level. These companies are completely neutral in all this but they run the risk of being prosecuted themselves if they don’t comply. Not with a court order, but with a letter from some random person or company. If a court were involved, these copyright holders would have to prove that the site is actually infringing before anything could happen, but the content industries don’t want to have to get a court order. They feel it is too much work.

In the end, these laws are not about stopping piracy. These laws are about unloading the burden of policing the content of copyright holders like those under the RIAA, MPAA and ESA onto third parties that have absolutely no power to control what users of the internet do. They don’t want to have to do the work themselves.

These bills need to stop now before they can be voted into law. Using the link provided at the beginning of this post and that can be found by clicking the black bar over our logo, you can contact your Senators and Congressman and tell them not to vote for this legislation. Tell them that you like our internet as it is.

You can also Contact those in Congress and support an organization that is dedicated to gamers by visiting the ECA:

Dont Let Congress Censor the Internet

You can find more information about these bills at the following location:

The Definitive Post On Why SOPA And Protect IP Are Bad, Bad Ideas
Congress considers anti-piracy bills that could cripple Internet industries

Why Should You Support the ECA’s Supreme Court Petition?

Recently, the Supreme Court of the United States took up a case from California. This Case involves a law that was passed in 2005 that would regulate the sale of violent video games to minors. The video game industry, represented by the ESA, has challenged this law in federal court. Twice it has been ruled unconstitutional. It is now up to the Supreme Court to decide once and for all.

The Entertainment Consumers Association has issued a petition that they want all people who play games to sign. This petition puts to voice of the people behind the defense of the game industry from this law. I have already put my name on it and I think you should as well.

Here are my thoughts on why. Read more