Streaming Game Videos to Become a Felony?

[icarusfall]

Well, you could be charged on each head.

That fine would be MASSIVE.

[bVork]

That's one of the most retarded statements I've ever seen on TNL. You clearly didn't think that through, because I know you're smarter than that. If I'm running a bootleg movie theater and charging people $5 a head to watch movies where the owners get no cut, I deserve more than a misdemeanor.

Note that I said nothing about civil penalties. People who do that should be sued into oblivion. I think that only crimes involving direct material transfer or damage (that is, the acquisition of property that belongs to another and/or the deprivation of rightful owner of the use of that property in its original state) over a certain amount and violent or coercive crimes should be felonies.

Let's compare copyright infringement with patents: should patent infringement be a felony? It's very similar to copyright - the perpetrator is willfully using somebody else's intellectual property for material gain.

[Frogacuda]

Not quite. I asked a lawyer about this back when I had dreams of setting up my own gaming website, and it turns out that everything derived from a game remains under copyright by the game's publisher. That means that Capcom could get every combo video out there taken down if they wanted.

I have a little experience with this myself and your assessment is not entirely accurate. Fair use is a very complicated area, it's not as black and white as that. Fair use doesn't mean something isn't under copyright, it means the way it's being used isn't considered a violation of that copyright.

For example, news broadcasts are copyright, but every day, The Daily Show plays clips from those broadcasts, often without permission, and they have no legal problem, not because of their choice of material, but because of the way it's being used.

One of the important factors in fair use is whether or not what's being used injures the value of the IP, including being used in a way that could compete with said IP. Things like sheets of clean sprite rips are copyright violation, because they can be taken and used in a game, animation, or some other multimedia product that should otherwise be generating revenue for the IP holder. But footage of a game is generally not, particularly if there's someone talking over top of it and commenting on it, because none of what appears on screen can really be ripped or used for any purpose that could conceivably compete with anything that might make the IP holder money. Nothing in a combo video injures Capcom's ability to sell their game, nor to license any aspect of the game, including the music, art, animation, etc.

The other important factor is that the material is being used for some kind of illustrative or informational purpose. So posting whole cutscenes from Metal Gear Solid 4 isn't fair use, but using footage in a video review is. A breakdown comparing aspects of the pixel art in Miyamoto's games would be fair use, but a plain old sprite sheet might not. So things like Let's Plays and combo videos that are clearly serve some kind of informational purpose wouldn't have much problem arguing this, although random meaningless clips are more of a gray area, although still generally covered by my the criteria mentioned in the last paragraph.

They won't, because they know it's bad business, but they're within their rights to do so. Rockstar is really vicious about eliminating gameplay footage before a game's release, and they again are within their current rights to do so. Of course, the difference with this bill is that it would now be possible to press charges for posting videos.

They're within their ability to do so, but I don't think a case like that has ever been tested legally.

I mean really I can probably get anything on your youtube channel pulled if I lie and say I own the copyright on it. That shit happens all the time, actually.

Both are bullshit. Nothing related to copyright should be anything more than a misdemeanor.

I agree that this legislation is something we should be paying attention to, just not for the reason insinuated in the original post.

[bVork]

I have a little experience with this myself and your assessment is not entirely accurate. Fair use doesn't mean something isn't under copyright, it means the way it's being used isn't considered a violation of that copyright.

That was a poorly chosen wording on my part. I meant that certain works produced by somebody other than the copyright holder remain the property of the copyright holder and can be treated identically to the original product itself, as opposed to works that are covered by fair use, where the copyright is held by the producer despite the incorporation of another entity's copyrighted material.

For example, news broadcasts are copyright, but every day, The Daily Show plays clips from those broadcasts, often without permission, and they have no legal problem, not because of their choice of material, but because of the way it's being used... The other important factor is that the material is being used for some kind of illustrative or informational purpose. So posting whole cutscenes from Metal Gear Solid 4 isn't fair use, but using footage in a video review is. A breakdown comparing aspects of the pixel art in Miyamoto's games would be fair use, but a plain old sprite sheet might not. So things like Let's Plays and combo videos that are clearly serve some kind of informational purpose wouldn't have much problem arguing this, although random meaningless clips are more of a gray area, I guess.

I chose combo videos as an example because it's in the murky grey area. I speculate that a combo video where somebody discusses the combos, how to do them, and their use would be valid fair use, but a traditional combo video comprised of a series of clips of raw footage would not. The key factor, I think, is whether the draw of the video is the commentary or analysis, or just the raw gameplay footage - the latter would probably not be considered fair use. A lot of streams would fail this test, I think. EVO streams and similar tournaments would probably not, because the draw of the stream is the high level play and colour commentary, but streams of some random guy simply playing through a game probably would be considered infringement.

[Yoshi]

Note that I said nothing about civil penalties. People who do that should be sued into oblivion. I think that only crimes involving direct material transfer or damage (that is, the acquisition of property that belongs to another and/or the deprivation of rightful owner of the use of that property in its original state) over a certain amount and violent or coercive crimes should be felonies.

Let's compare copyright infringement with patents: should patent infringement be a felony? It's very similar to copyright - the perpetrator is willfully using somebody else's intellectual property for material gain.

This is an interesting question, because intent would have to be proven. If I trusted our system to accomplish that feat, I'd support the shit out of felonies for patent infringement. But right now it's not clear cut enough.

[Frogacuda]

I chose combo videos as an example because it's in the murky grey area. I speculate that a combo video where somebody discusses the combos, how to do them, and their use would be valid fair use, but a traditional combo video comprised of a series of clips of raw footage would not. The key factor, I think, is whether the draw of the video is the commentary or analysis, or just the raw gameplay footage - the latter would probably not be considered fair use. A lot of streams would fail this test, I think. EVO streams and similar tournaments would probably not, because the draw of the stream is the high level play and colour commentary, but streams of some random guy simply playing through a game probably would be considered infringement.

Well that's why I say that there are multiple criteria. Even if material's use isn't explicity transformative, it can also be considered fair use by virtue of merely being insubstantial.

For example, IGN posting a 3 minute clip of a new game is fair use (and believe me, companies like IGN do have lawyers that think about these kinds of things), because it's just a short clip that really has no bearing on the original product's value in any way shape or form.

But if they posted a complete playthrough, that could be a trickier area if they were ever challenged on it, sure. If it was a game like Super Mario Bros, it'd probably be fair use. But if it was Dragon's Lair, they might not be, because the art, animation, and story are major components of the original product's value. And yeah, I guess people do stream those sorts of things. But I don't really foresee that being a problem, honestly.

[Frogacuda]

This is an interesting question, because intent would have to be proven. If I trusted our system to accomplish that feat, I'd support the shit out of felonies for patent infringement. But right now it's not clear cut enough.

We're talking about patent law now?

Because hoo boy, patent law is the biggest load of horseshit that ever existed. Which is why a large number of patents granted get thrown out the first time they're ever tested in court. Filing for a patent amounts to little more than buying the option to defend yourself in court at a later date.

You don't even have to show how something works to patent it. I could go patent a car that's capable of space travel tomorrow, and then wait 100 years until someone makes that and sue them. Patent law is that fucking stupid.

For example, Apple patented the concept of touch screens that could detect more than one touch at once. NOT a specific technology for doing that, just the whole IDEA of multi-touch. Now a lot of people have since appropriated that, knowingly and willingly, and are being sued by Apple. Thus far Apple has not won their case, because patents are largely meaningless horseshit, but if they got the right judge and they won, should Motorola's suits go to jail? That's absolutely ridiculous, Yoshi.

[gamevet]

Would this in some way, affect Onlive?

[Frogacuda]

lol

[gamevet]

I know it's appears to be a stupid question, but we are talking about streaming video, which the Onlive service uses. Are they paying royalties to the gaming companies, or are they using a loophole like that of Blockbuster renting videogames?

I do know that PC software cannot be rented, because of software copyright laws that are in place. But Onlive must have found a loophole, because the user doesn't have a physical disc, in order to provide rentals of PC software. You can also watch other players playing a game, through the streaming service. This isn't just Youtube that is being called out with the proposed bill.