YouTube has accepted Campo Santo's DMCA request against Felix "PewDiePie" Kjellberg's Firewatch video, prompting the popular YouTuber to accuse studio co-founder Sean Vanaman of abusing the DMCA system.
In his second video addressing the aftermath of his racist outburst, Kjellberg once again conceded that, "ultimately, this is my fault... and the more time that passes, the more I realise that, how wrong I was." However, the bulk of the video amounts to a defence of his own legal position, and his belief that Campo Santo's action would not "hold up in court."
"Regardless of whether Let's Play is Fair Use or not, this argument of claiming my video is incorrect"
Felix "PewDiePie" Kjellberg
"It's a pretty big deal," Kjellberg said of the strike against his account. "If I get more than three of them my channel will shut down. You could say this is an attack on me, my livelihood. This seems like more than just grandstanding. This seems more like an attack to me."
Kjellberg directly addressed the tweets published by Campo Santo's Sean Vanaman, and stated that Let's Play videos are a "grey area in legal terms". However, he said he was "fairly certain" that the format would be considered Fair Use in legal terms, and that "most legal experts" would agree.
"There are some arguments against it, but if you watch my video you know that I'm adding my commentary to it, I'm giving my insight to it," he continued. "Whoever watches me playing is going to experience it differently to someone who plays it themselves. That's just how it is."
Kjellberg displayed an image of the statement on the Campo Santo website, in which the Firewatch developer gave streamers and YouTubers its consent to use the game in their content. This statement has been used as the basis for the argument against Vanaman's initial threat to file a DMCA claim, and argument with which Kjellberg agrees.
"The easy answer here is, yes, they are allowed to DMCA PewDiePie's video"
Ryan Morrison, attorney
"Sean said he would strike down any one of my future Let's Plays... But the thing is, that doesn't mean he can go back and revoke the old one. Do you know what I'm saying? Basically, Sean has the right to strike any video that I upload from this point, because he's publicly said that's what he's going to do.
"But you can't retroactively say, 'You know what, I'm revoking this license because you are a racist garbage' or whatever. That's not how DMCA works, and I'm pretty sure that sort of selection bias is not going to hold up in court.
"Regardless of whether Let's Play is Fair Use or not, this argument of claiming my video is incorrect."
Kjellberg initially privatised the Firewatch video, "out of respect" for Campo Santo's request. He described the studio's insistence on filing a claim anyway as "pretty disappointing" and ultimately "dangerous" as the video in question did not contain offensive content.
"Whether you like me or Mr Vanaman, these laws are made for people to take down content, and whenever there's power to do so it's going to be abused," he said. "And especially when the reason to take down the content has nothing to down with copyright, it sorta shows that."
Whether Campo Santo's actions are "dangerous" is open to discussion, but Kjellberg's assertion that the studio's statement regarding streaming doesn't give Vanaman the legal right to issue a DMCA request on a prior video appears to be incorrect. Earlier this week, video game attorney Ryan Morrison clarified that the statement is a license, which is automatically revocable under the law unless it explicitly states otherwise.
Morrison went deeper on his own podcast, Robot Congress, saying that, "there's no dispute here, the law is the law on this, there's no grey area to even talk about... The easy answer here is, yes, they are allowed to DMCA PewDiePie's video."
"That license...since it's just two lines written on a page, defaults to revocable," Morrison said, adding, "that means [Campo Santo] can revoke it at any point, and for any reason, including somebody saying the n-word."
Morrison added: "The law is not written for this stuff. The law isn't written around a Let's Play video on YouTube. The second they revoke that license, technically he's infringing from that point forward that the video remains up. Can they go back and sue him for the year that it's been up under that license? Absolutely not, but they can stop him from using it that second, and they can stop him through a DMCA... That's how this law works."
Morrison also dealt with the Fair Use argument, which was forwarded by PewDiePie on the grounds that his videos alter the content sufficiently to be protected. However, while a precedent may be set by a court case in the future, he said that, despite Kjellberg's commentary, his videos would still be considered “derivative” works under the current law.
“It's all infringing right now under the law,” he explained. “Is there an argument for Fair Use on a Let's Play video that's maybe educational or maybe being watched for the personality? For sure, and I would love to argue it, and I think we will argue it one day.”
An argument in favour of Fair Use, he said, is that people watch the video not for the game, but for the personality and what they bring to it. That could potentially be argued in PewDiePie's case but, as Morrison pointed out, the “transformative” nature of the video is “one of four factors” considered in assessing Fair Use.
“The other three are not in Let's Play videos' favour,” he continued. “The big one is commercial use, which is what most judges rely on. You can look at PewDiePie's millions and millions of dollars that he's made off these videos and you can say, okay, this is purely commercial in nature, he should absolutely have to give back to the game he's making all of this money off, and he doesn't.
“Arguing its Fair Use means you don't need a license, and you don't have to pay anything to the people who made these games. That's fine, but that's an argument that's not going to fly in any court room that I'm aware of.”
This episode of Robot Congress is well worth your time, for its even-handed discussion of what has proved to be a divisive event.