Many games review videos are in violation of copyright law, but stay up anyway, for promotional reasons.
PewDiePie. Image: Screenshot via YouTube.
Felix Kjellberg, better known as PewDiePie, is the most popular YouTuber in the world. He's gotten himself into another controversy, this time for shouting the n-word while livestreaming a video game. The 27-year-old Swede has repeatedly been criticized for hate speech, and just last month said he would no longer make Nazi jokes after a white supremacist rally in Charlottesville, Virginia turned violent.
But while playing PlayerUnknown's Battlegrounds on Sunday, Kjellberg, who has over 57 million subscribers on YouTube, called another player the n-word before erupting into laughter. "What a fucking n****r," he said. "Jeez, oh my god. What the fuck? Sorry, but what the fuck? What a fucking asshole. I don't mean that in a bad way." Kjellberg did not immediately respond to a request for comment, and has yet to publicly acknowledge the incident.
In response to Kjellberg's use of a racial slur, a number of video game players and developers have condemned the creator. Sean Vanaman, the co-founder of video game company Campo Santo, decided to use copyright law to push back against Kjellberg. On Twitter, he said he was filing a Digital Millennium Copyright Act (DMCA) takedown request against the famous YouTuber regarding a video in which Kjellberg plays Campo Santo's game Firewatch. Vanaman did not return Motherboard's request for comment. A spokesperson for Campo Santo declined to comment.
The Digital Millennium Copyright Act (DMCA) is a 1998 law that heightened the penalties for distributing copyrighted work on the internet without permission (among several other things). While what Kjellberg said is obviously awful, the incident and Vanaman's response highlight an issue that has long been brewing on YouTube: Copyright owners hold most of the power, and the way the DMCA and YouTube's platform work sometimes allow them to get videos taken down they simply don't like.
Kjellberg uploaded a video in February 2016 where he filmed himself playing Campo Santo's game Firewatch. As of Monday afternoon, the video is no longer available. Usually, when a video on YouTube is taken down for copyright reasons, the page where the video was indicates that. Kjellberg's video doesn't have a notice about copyright infringement, so it's possible he took it down himself or it became unavailable for some other reason. YouTube did not return a request for comment.
"There are some publishers and game devs out there that don't like criticism and take [videos they don't like] down immediately," Michael Lee, a lawyer who focuses on trademark and copyright law and a founding partner of the law firm Morrison / Lee, which has represented YouTubers, said on a phone call. "With the copyright system the way it is, that will always happen...that's probably the biggest issue here, that the DMCA is being used to stop the expression of free speech. That's obviously a major concern, and unfortunately that's how it works with copyright law."
On the official website for Firewatch, the Campo Santo game that Kjellberg filmed himself playing, the developers insist it's okay to take a video of yourself streaming, and to monetize it:
Lee said that when a creator streams a game on Twitch or uploads a pre-recorded stream to YouTube, they could be technically violating copyright law, but most games publishers are reluctant to issue DMCA takedown requests. "Of course most publishers don't want to do this," he said. "The feedback is really bad." For example, earlier this year publisher Atlus issued some limitations on what players could stream of Persona 5, its popular role-playing game. The reaction from fans was so negative Atlus relaxed those limitations and apologized.
Besides, when a famous reviewer promotes themselves playing a game, it's good for business. If their review is positive, the game usually soars to the top of sales charts. Most publishers don't issue DMCA requests "for promotional reasons," Lee told me. It would also take significant resources to go after every creator that uploads a gaming video. "It's hard for these companies to police the marketplace, there's a cost," he said. Vanaman acknowledged on Twitter that his company has likely profited from Kjellberg's streams.
While uploading an entire movie you don't own to YouTube is a blatant violation of copyright law, many uses of copyrighted content by YouTubers are more nuanced. Copyright law allows for "fair use" in certain cases, such as when criticism of a copyrighted work is taking place. Since Kjellberg adds commentary to the games featured in his videos, he may have a fair use argument that might hold up in court—but it would likely still be a difficult case to argue. There's no official definition of fair use, and successfully arguing "fair use" against a DMCA takedown or a lawsuit using the defense is often a lengthy and costly affair.
"The DMCA has an underused mechanism for streamers to submit a 'Counter Notice' if their use is fair use," Stephen "The Video Game Lawyer" McArthur, the founding attorney of The McArthur Law Firm, told me in an email. "Even then, fair use defenses against the DMCA [are] few and far between. However, due to what is likely selection bias, those that have gone to court have typically done quite well."
Hila and Ethan Klein, the couple behind the popular YouTube channel H3H3 Productions, won a case against another YouTuber on fair use grounds last month, for example, but it took them more than a year to litigate. YouTubers like Kjellberg and H3H3 upload multiple videos a week about topical subjects, so fair use defenses are usually too expensive and time consuming. Even if they win, by the time the video is saved, it's irrelevant.
Even if a streamer has a legitimate fair use case, when a major corporation like Alphabet— which owns YouTube—receives a DMCA request, it almost always complies, Lee said. "If they don't take down that content, they could be sued as contributing to the infringement," Lee explained. "I've sent DMCA notifications to YouTube and they have complied with every single one."
Kjellberg also can't build his case on the fact that most creators who filmed themselves playing Firewatch never received a takedown. According to Lee, it's like getting a speeding ticket and arguing that not everyone who drives too fast receives one. "I'm sorry you got a takedown but it's not an excuse that everyone is breaking the law," Lee said.
Ultimately, the way the DMCA is written now allows game developers to pick and choose when they want it to be enforced. What sometimes happens is that requests are only issued to creators who film negative reviews, or who a publisher doesn't like, Lee said. Situations where this happens are referred to as DMCA abuse, and are seen as a violation of free speech by First Amendment activists.
To be clear, Pewdiepie doesn't deserve a pass. He has repeatedly shown that he's unable to avoid broadcasting blatantly racist messages to his 57 million viewers, many of whom are children. In the past, he's claimed that what the media has declared racist was simply a poorly received joke taken out of context. In this case, he can't make that defense. In an unedited livestream, he screamed something while he was angry at another player, and it was vile. It's not a normal or defensible thing to say when you're upset or absentminded.
There's a discussion worth having about how hate speech should be removed from major internet platforms. There are compelling reasons to do it by any means necessary, but DMCA overreach is among the least compelling options, considering that it unilaterally puts power into the hands of what are essentially uninvolved parties and allows for little arbitration or defense on the part of those who have their content removed.
Even Sean Vanaman, the developer who said he wanted to issue a DMCA takedown request in the first place, saw the problem with his own strategy for getting the video removed.
"I wish there was a clear way to say we don't want our work associated with hate speech, even accidental hate speech if that's what it was," Vanaman, one of the developers behind Firewatch, told BuzzFeed News. "I regret using a DMCA takedown. Censorship is not the best thing for speech and if I had a way to contact PewDiePie and take the video down, I probably would. He's a bad fit for us, and we're a bad fit for him."
Update 9/11/17 6:28 PM: This post has been updated to note that Campo Santo declined to comment. It has also been updated to be more specific about the mechanisms of the DMCA and copyright law.