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The Weird Legality of Video Game Streaming

Saw this Tweet from Twitch.tv a few weeks ago:

Now I’m not active in the Twitch community, so this is probably more surprising to me than to others.  But this seemed a little odd – a coverage embargo for the general public, on a game that’s legally available in the US.

This policy is not in Twitch’s Terms of Service. The only pseudo-official Twitch statement I can find is this forum thread on unreleased games. I responded to their tweet, and they did confirm that their official policy is to enforce a publisher’s/dev’s embargo, if requested.

Embargoes are nothing new in the gaming press. In return for access, sites frequently agree not to publish their articles/videos/whatever until a certain time. It’s real easy to see: just follow all the major sites on Twitter, then look for times when they all post their review of the same game within the same minute. For example, did you notice that at 12:01am on Sept. 18th, suddenly everyone and their brother had a Borderlands 2 review for you? That’s an embargo lifting.

What’s interesting is Twitch’s decision to enforce the embargoes on the general public. It makes sense – their entire business model is based around people streaming games, and that business model only exists because publishers and developers haven’t tried to stop it. So if a publisher asks Twitch not to allow streams until a certain time, it’s in their best interest to comply.

Why? Because, strictly speaking, streaming games is illegal.

Last year, the Senate had a proposed bill called the Commercial Felony Streaming Act, or S.978 for short. It would amend the existing US copyright code to make unauthorized streaming of copyrighted material for “commercial advantage or personal financial gain” a felony (it’s currently illegal, but only a misdemeanor).

I want to be really clear on this: at the time of S.978, unauthorized streaming of copyrighted material was already illegal. 978 would have just increased it to a criminal offense, in line with other copyright infringement like reproduction or distribution (it’s like a 2-page bill, just go read it).

Now, it doesn’t actually say “streaming” – it says “public performance by electronic means.” “Public performance” isn’t limited to streaming – it covers all kinds of things, from running your own movie theater to performing a Bob Dylan song with your high school band at the prom. Let’s go to the copyright code:

 

To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

 

To perform or display a work “publicly” means—
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

 

So when we’re talking about streaming a game, we’re talking about publicly performing a copyrighted work. That’s illegal. Cut and dry, straight up illegal.

But here’s where it gets weird: for the most part, the copyright owners don’t care.

Let’s go back to Twitch.tv. Seriously, click the link. Right away you’ll be presented with someone streaming a game, on the home page of the site. Click around and you’ll find thousands more just like it. Can you imagine what would happen if I started up MovieTheater.tv and encouraged everyone to start streaming their movie libraries?

Yeah. Same thing, wildly different result.

There’s also a distinction to be made between public performance, reproduction, and distribution: namely that public performance is not a criminal matter, while reproduction and distribution can be. You can’t go to jail for an unlicensed public performance of a copyrighted work – you’d just get your stream taken down, and maybe sued. Public performance, as of right now, is a civil matter.

David Graham, a gamer who also happens to be a lawyer, wrote an excellent piece last year explaining why this difference matters – you should go read it. Bottom line: as the law sits now, the copyright holder has to initiate enforcement, whether it be takedowns or lawsuits or bears with boomboxes.

So to recap, here’s where we sit:

  1. Game streaming is a public performance of a copyrighted work
  2. Unauthorized public performance of a copyrighted work is illegal
  3. Most game streams are unauthorized
  4. The copyright holders choose not to enforce their legal rights

Now, some companies like MicrosoftBlizzard and Riot have specific policies governing how their intellectual property is allowed to be used in community-created video. But those policies only extend to non-commercial use and sometimes som very specific paid partner agreements (like with YouTube). So that creates an even weirder situation: you can make a StarCraft 2 video, you can’t make money off of it – but Twitch can, because you have the license to upload the video.

Weird, huh?

And gameplay clips are even murkier. Remember, copyright law assigns 4 basic rights to the copyright holder: reproduction, distribution, modification (derivative works), and public performance. I could make an argument that uploading a video to YouTube violates all four of those:

  1. I upload a clip of my awesome Pomeranian in Tokyo Jungle. A copy of that clip is now on YouTube’s servers. That’s reproduction.
  2. Once the clip is on YouTube’s servers, it is compressed into multiple new files for playback. These new files aren’t just copies of the original file – they change the visual content (due to compression). Is that enough to count as a derivative work? Probably not, but it could at least be argued, as lawyers charge by the hour.
  3. Online video is, by its nature, a public performance. And legally, that’s how it’s most often prosecuted. So that one’s cut and dry.
  4. What about distribution? Well, YouTube isn’t just one server – it’s thousands of servers all over the world. Content viewed on YouTube is cached on these thousands of servers. That means there’s tons of copies of the work being spit out all over the world. Is that distribution? Maybe, maybe not – there are limited provisions in the law for copies that are incidental to transmission. But again, it could be argued.

The moral of this story: Congress needs to get its shit together, rip apart the current copyright code, and maybe at least acknowledge that we’re a little beyond phonorecords.

I’m glad I’m not a copyright lawyer.

 

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Note: I’m not a lawyer. This is just how I read the law, and what lawyers have written about the law. I don’t know any lawyers, so I can’t ask for a better opinion than my own. If you are a lawyer, I’d love to publish your thoughts. Throw up a comment or email it to videograndpa at gmail.

Further Reading:

Why Johnny Can’t Stream (Ars Technica) – an excellent look at how we got to this broken state of copyright law

Court strikes down “embedding is infringement” (Ars Technica) – also has some interesting commentary from the ruling judge

 

 

 

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