Firewatch creators can target PewDiePie with DMCA takedowns, and it’s perfectly legal

Campo Santo co-founder Sean Vanaman, writer of Firewatch, has made his feelings known about a livestream broadcasted on Felix “PewDiePie” Kjellberg’s channel where he used a racial slur. However, he’s also triggered a debate on the respective rights of streamers and content owners by promising to issue a DMCA takedown for any PewDiePie video using Campo Santo content.

This has become another impetus for an ongoing disagreement concerning the legal standing of Let’s Play streams and videos. In my role as a video game attorney, this presents an interesting question for my clients. What’s the best approach to handling this new marketing tool while protecting the game’s brand and content? Vanaman’s approach in particular has set off serious debate, as his tactic may be seen by some as an abuse of the Digital Millennium Copyright Act.

But from the perspective of the content owner, Vanaman’s reasoning is irrelevant. You see, a licensor doesn’t need a reason to withhold a license. That also means that they can withhold a license for any reason. In the case of a Let’s Play video, a content owner like Campo Santo would argue that they can revoke their permissive, non-exclusive license to stream (granted to end users) against anyone who uses their content in a way they find offensive, or in a way that associates their game or brand with something against their values.

This is the approach Vanaman has taken. He doesn’t want his studio’s game associated with Kjellberg’s channel or content, which is, arguably, a perfectly legitimate basis to withdraw a license for which you need no legitimate basis to revoke.

Under copyright, an author’s underlying justification for bringing an action carries very little weight unless the claim lacks merit. If, as most of my clients believe, Let’s Play is not fair use, Vanaman could issue a take down for any reason or no reason and all, and as long as there is still actual infringement, an argument of “bad faith” probably won’t have much of an effect on the outcome unless you get a very sympathetic judge or jury.

And for practical purposes that’s where it ends.

Influencers rarely fight takedowns unless they have the money and willingness to defend their use. Even if there is a fight, it’s short lived (from a lawsuit timeline perspective it’s always dragged on too long for both parties) and these cases always seem to settle. Chances are, this will too if it comes to that.

I gave a talk at PAX West this year that touched on this subject. It covered user-generated and fan-produced content in the context of what is and is not okay. Content owners have a strong leg to stand on in terms of IP protection when it comes to Let’s Play, but the industry’s willingness to embrace this new form of content curation and delivery early on has meant that many, particularly fans of Kjellberg and his ilk, have confused “permissive use” with “fair use.”

The informal system right now is actually pretty good

It’s important to remember here that all intellectual property law is censorship in some way, shape or form. It’s designed to allow copyright owners an opportunity to prevent others from using their content. If my clients elect to permit streaming, that’s a business decision and has little to do with any perceived claim of fair use by the Let’s Play community.

As a “fair use” determination is made on a case-by-case basis, the only way someone can conclusively show that Let’s Play” qualifies for fair use is to litigate it. There’s a very good reason no one’s stepped up to the plate for that: The fact that Let’s Play videos are predominantly commercial for entertainment purposes, and borrow substantially from the original work product, weighs against a finding of fair use under the four-factor fair use test.

To refresh your memory, or if you have no idea what I’m talking about, courts consider the following four factors when making a fair use determination:

• The purpose and character of the use.
• The nature of the original work.
• The amount and substantiality of the portion used in relation to the work as a whole.
• The effect of the use on the market or potential market for the original work.

There is a massive body of academic and legal discourse on the subject of fair use, all of which is relevant, and all of which will remain the subject of academic debate until Let’s Play is litigated. No one in this business on either side is eager to see that happen.

Content owners are satisfied with their protections (e.g. DMCA, streaming guidelines, etc.) and don’t want to potentially expand fair use to encompass even some, let alone all, Let’s Play streams.

Influencers and streamers don’t want to test those legal waters either. They’re perfectly happy with the silent or active permission afforded by publishers and developers. Fair Use gives them a negotiating chip they could lose if Let’s Play is litigated, but it has never really been tested. And it won’t until it goes to court.

Both sides have too much to lose and too little to gain for that to happen. The industry in general has fostered a cooperative environment with influencers to promote and grow Let’s Play as a medium. No one is in a hurry to disrupt the balance this cooperative environment creates.

The only ones who want to see litigation are fans, lawyers and hecklers. At this point it’s safe to say that Vanaman’s approach likely has legal merit, although the ethics of using the DMCA as a form of public protest are questionable.

In rare cases there are counter-claims and lawsuits specifically designed to prevent “strategic lawsuits against public participation” (typically referred to as an anti-SLAPP claim), which prevent defendants from carrying the financial burden of defending a meritless lawsuit if that lawsuit is designed to censor the defendant or otherwise prevent the defendant from engaging in public discourse.

In other words, if a copyright owner sues you and you bring an anti-SLAPP claim, you’re entitled to damages if a court finds that the underlying action was brought solely for the purpose of suppressing speech and otherwise lacks merit.

However, the problems with anti-SLAPP are:

• It’s not available in most jurisdictions, and is only enacted by statute in a handful of states.
• It can be superseded by federal law.
• The underlying suit (e.g., a suit for copyright infringement after issuing a takedown notice) has to lack merit, and proving that requires exposing yourself to the risk of litigation in the first place.
• Anti-SLAPP claims are rarely successful.

It’s worth noting that the lack of an anti-SLAPP statute in the jurisdiction where the matter is litigated could play into whether a defendant/influencer is willing to litigate in the first place. It’s not common and is difficult to enforce, however, so in most cases anti-SLAPP is treated as an exception rather than the rule.

One last legal consideration is the role of the service providers in determining fair use under the takedown procedure has shifted in terms of maintaining their liability shield in some jurisdictions. The Ninth Circuit recently ruled in Lenz v. Universal that service providers like YouTube and Twitch may need to consider fair use before taking down user-generated content.

The practical application of this ruling, however, is anything but clear. There are precious few bright lines when determining fair use, so service providers are still better served by ignoring fair use except in the most obvious cases.

Ethics influence the law, but not all ethics are legally enforceable. In this case, an argument that Vanaman’s use of the DMCA takedown notice procedure is preceded by the First Amendment depends on whether he needs a reason to withdraw permission in the first place.

Under the DMCA, infringement is infringement, regardless of either party’s intent. Fair use, however, is not infringement, which makes it the best available defense for First Amendment fighters.

How would this hold up in court?

It isn’t clear that the shield can offer Let’s Play videos much legal protection if it’s ever fought in court at this point. As I mentioned before, all intellectual property law is effectively censorship. They give content owners, inventors and creators the exclusive right to prevent others from using their work. Every copyright owner has that right. However, this is by no means absolute. Balancing intellectual property rights against First Amendment rights has been an ongoing struggle for jurists.

I’m proud of the solution our industry, the video game industry, came to when confronted with Let’s Play. We didn’t seek to suppress, crush or control it, which, as we saw when the music industry went after digital distribution, is perfectly valid legally but also a really terrible idea in terms of public image. The industry instead focused on making Let’s Play collaborative and mutually beneficial. That does not mean that content owners gave up their right to say how fans can exploit their content.

This also does not mean that Let’s Play is protected under the First Amendment. Only a court can make that determination, and the weight of legal precedent generally leans in the opposite direction. It does mean that developers and publishers, while not obligated to do so, are willing to step up and afford streamers an opportunity to use game content in new and creative ways. This has, so far, been the solution that has best served the community and the industry.

It’s unlikely that Vanaman is abusing the system, he’s just testing the limits of the mutually beneficial cease-fire. Legally, what he’s doing seems safe, but it’s a slight shift in the usually agreed-upon relationship between developer and streamer. The actual shape of that relationship would have to be tested in court for anything absolute to be argued.

And litigating Let’s Play would almost certainly result in more confusion and presents the risk of destroying Let’s Play as a medium in its entirety. Why take that risk?

Mona Ibrahim is a Senior Associate at Interactive Entertainment Law Group. She is an avid gamer and has dedicated her career to counseling the video game industry and indie development community.