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LONG BLOG

The SOPA Box: Lets play? DMCA!

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Nuanced opinion be damned this week as I'm getting on my box on the internet to have a yell about something that I think matters.

So some people made horses arses of themselves recently. PewDiePie for saying a highly offensive word so obligatory sentiments from me of, "PEWDIEPIE said something bad even if it was in the heat of the moment he's still is a moron for it." Also making horses arses of themselves recently, indie developers. In this case more specifically a developer from Camp Santo and at least one other face from what could be loosely defined as the indie clique (a group of developers who let's just say move in a lot of the same circles).

So this week it's time to look at let's plays, DMCAs and idiotic business moves.

So Let's Plays are a legally grey area. Some sites have reported they've spoken to lawyers or are seemingly suggest they are lawyer who say lets plays aren't covered under fair Use. Leonard French has suggested they could well be covered by the fair use. The reality is it's not been challenged in court and before it's said no H3H3 winning his case doesn't set the precedent for this only for commentary and criticism of some-one else's content and there's a lot of questions over if Lets Plays count in this area at all or if there is enough to consider them transformative works.

 The odd thing is there's already a kind of work that exists in a legally grey area of sorts.

Theatrical plays, you see the playwright has to get a cut when their play is performed if it is still under copyright. Copyright lasts for 70 years as part of the estate of the playwright from when they die, so for 70 years after they are dead it can be owned by their: relatives, family or whoever inherits it in the will. After 70 years after the writers death (or in the case of multi writer teams the death of the last member) it becomes public domain, except the original Peter Pan play which due to various laws is in permanent copyright and no not to Disney. People have to get permission and pay a licence fee to perform plays under copyright (the licence generally acting in place of royalties). Oh and from a legal perspective for almost every play that is performed this is meant to happen even school assembly plays, unless it's an original work. However, the playwright doesn't own copyright of the performance thus theatre companies etc can sell performances on DVD etc. Oddly enough depending on how things play out this might be how lets plays end up. It's not quite some dystopian wasteland as for some plays they include licence to perform a play if you buy x number of scripts or even in some cases they may do it for free. This is likely the worst case scenario for youtubers, and it's not bad as things go.

Plenty of other things already charge a licence fee specially for commercial use and for games I bet a number of developers will be fine carrying the system on almost as is just writing some line in their game about "We give you expressed licence to Lets play this game as part of a legitimate purchase as long as you don't refund the game after playing."

 So now that I've got that out of the way it's time to talk about the jack ass move of DMCA claiming a youtuber. Believe it or not if Campto Santo want to take a shot against some-one in this manner because they believe somehow it's striking against the "Youtube Community". Then by grouping everyone in such a manner and striking some-one as an example, especially when their own website says it's fine to let's play and stream their game, well that's taking a shot at the "youtube community". Any indie developer  doing this may be about to find out that the "youtube community" have their own methods of fighting back. This won't be some clean courtroom fight settled by men in fancy suites paid for their ability to word good. This will be a: dirty, underhanded awful scrap. The part most people will be shocked by is how easy it is to pick the winner. The youtubers will win. The present climate in gaming favours them, on Steam there are 10 games released each day and that's just Steam. Lets Players aren't short on content and can pick and choose what to cover. It isn't the "youtube Community" defending PewDiePie, it's the Youtube community being brought in with threats, that they'll face consequences unless they "deal with" PewDiePie hence they're in this fight.

 There were cries a while ago from indie developers in the clique or on the edges of it at least to blacklist people with views members deemed to be unacceptable to them.

 

 The thing is big youtubers have been working fine with major publisher blacklists for a while, for indie developers a blacklist would be useless because so many indie developers exist outside this clique calling for said action. Most of the other indie devs aren't in the limelight, they're behind the scenes on hidden invite only forums or even just in plain sight posting on regular websites even like Destructoid. Unless somehow all indie developers decide to join these blacklists then there will always be developers willing to let people let's play their game because it's free advertising. Meanwhile those supporting the blacklist; well those indie devs have to pay and make up for that advertising they no longer get free. You might think there will be some youtubers who will work with them, there's lots of youtubers and sure some might but based on the actions they've seen, how many will trust those developers? How many will look at the offer and decline? How many will see it as a gift from the Greeks and look in the proverbial horse's mouth?

You know how I know how this goes down? Because I can be almost certain no-one here will know who Modern Intrigues are. They're a developer who made an XBLIG game long ago. They practically don't exist as a studio anymore. They decided to go after people, not with false DMCA claims but with some pretty insulting words and allegations against people, they did many years later apologise to some involved but not all. They're an indie developer from the days of the Xbox Live Indie Games section. One I and a number of other small time critics review blacklisted for their antics. When you're being washed away by a flood you want all the help you can get keeping your head above torrent. And believe me Steam Direct is an open floodgate at present. If people don't feel they can trust you not to bite them, they're not going to help you. That is what these indie devs supporting using the DMCA to go after people they disagree with, no matter how deplorable their actions are, are likely to find out from this. There's plenty of other indie titles out there struggling to be seen in the flood of titles.

So developers, stop being horses arses. If you don't like a Youtuber don't send them code. If you feel the need to make it clear you don't support them make a public announcement on Twitter that you won't be sending code. It looks more respectable and won't leave people thinking you're a horses arse for throwing a Tantrum and using the DMCA as a seemingly desperate thing to throw at some-one while looking to be having a tantrum.

If you think being review bombed on Steam is the worst that can happen, just watch as officially or not developers supporting DMCA abuse or using the DMCA to settle personal grievances end up on essentially a coverage blacklist. You might think I'm being nasty here, I'm being harsh but I'm telling it like it is because I actually care about seeing indie developer triumph and make it. So when I see developers doing a move like this that's going to go bad for them I feel like I have to say something even if that means I'm at cross swords with the developers.  

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About Dwavenhobbleone of us since 8:33 AM on 06.19.2012

A qualified Environmental Chemist who happens to live in a fairly dense city with no real environment or chemistry industry.

I review indie games on another blog and you'll see them pop up here if I think the review is a good or interesting one (along with a shameless bit of self promotion)

I also operate another blog reviewing films and I mean t pick that back up when I can.

I've been gaming since the SNES days. I've been in the pro scene before for tribes 2 but hate the present pro scenes and have no interest in going back into it.

I tend to get into quite a few Betas and love ones without NDA as it means I can write about them. I have even beta tested an xbox 360 game in my time (and no not a normal public Beta one )

In gaming I'm normally the guy looking at the shelf below the AAA titles first to see if there are any great hidden gems.

My gaming drug of choice: Timesplitters in any flavour (Why won't you make Timesplitters 4 Crytek, why ????? I need my fix of insanity )
Xbox LIVE:hobblejp
Steam ID:dwavenhobble


 

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