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Let's Not Play - The Copyright Battle Turns Ugly

Intellectual property laws have failed to keep pace with change - now they're hurting both the rights holders and the content creators.

Let me throw out a hypothetical, though realistic, question. Let's say you're a musician, and you make a song which you release commercially. Shortly afterwards, someone makes a video - probably a video of a cat doing something funny, since that's what most videos seem to be - and uses your song as the backing track. It matches up to the hilarious feline antics perfectly, and the video is a huge hit - shared on social networks all over the world, it racks up millions of views and, through YouTube's revenue sharing scheme, earns a tidy amount for its creator.

You can see the question coming, no doubt - are you entitled to a share of that revenue? After all, your song is a key part of the video. The video creator is the primary creator of the work, unquestionably, but the song you recorded is a major part of the composition. It's not like they've just used a tiny sample of the song, which might (might!) qualify as fair use in some jurisdictions - they've used a whole verse and chorus, a significant chunk of your material.

"YouTube initiated a clamp-down on copyrighted content in their videos which has been nothing short of a disastrous cock-up"

Right now, copyright law says that yes, you're entitled to a share of the revenues - and most people would agree that that feels like a just and reasonable situation. So let's move on to consider the case of a video which primarily consists of footage of a video game, with a voiceover commentary and perhaps some extra musical backing. The input of the creator of one of these Let's Play videos is undoubtedly significant, which explains why some of the best creators have such huge followings - but as in the case of the cat video with the commercial music track, the Let's Play video also leans heavily on the commercial work of another creator or company. It's pretty hard to find any credible moral argument which says that the composer of backing music should be paid, but the creator of the game in a Let's Play video shouldn't be paid.

Note that I said "moral argument", not "commercial argument" - the two things aren't the same a lot of the time. British online retailer Zavvi is presently having its tender bits held above a naked flame for a situation in which, despite being legally and morally perfectly justified in its actions, it made the commercially stupid decision to sue some customers who refused to return PS Vita consoles shipped by mistake to them. The fact that Zavvi is legally in the right and customers refusing to return the company's property are being greedy and underhanded at best is almost irrelevant given the PR disaster this has snowballed into - one which will cost Zavvi far more to rectify than the price of a few handheld consoles. Similarly, it's entirely likely that while it's legally and morally justified for game publishers to seek a revenue share from Let's Play videos, it would be commercially daft for them to do so, for a whole host of reasons.

The hypothetical situation described above is ongoing right now, as the rise of Let's Play culture has created a small but dedicated group of individuals who actually earn their income from posting game videos on YouTube. They're often talented, hard-working and charismatic people, and the appeal of their channels arises from their own personalities, not the games they play - but the fact remains that the games are a core part of the content, and the game creators see no share of the money being made.

"Copyright law as it stands is getting worse rather than better. It is being used to hold back the floodwaters of new content delivery platforms and content creation culture"

This week, YouTube initiated a clamp-down on copyrighted content in their videos which has been nothing short of a disastrous cock-up - and yet is probably the only option open to YouTube, a platform that finds itself trapped in between a content culture that has changed far more rapidly than copyright law has been able to keep up with. Actually, that's a slightly unfair description; it's not so much that copyright law hasn't been able to keep up as that it hasn't really tried, being perhaps the area of law which is most in thrall to entrenched corporate interests, least concerned with the wider good of society or culture and most stubbornly anti-competitive. Copyright law as it stands is terrible, backwards and generally getting worse rather than better, as it is being wielded as a weapon by established firms whose primary concern is not the protection of intellectual property rights but the use of those rights to hold back the floodwaters of new content delivery platforms and content creation culture.

Nothing in the legislative regime governing copyright either in the USA or internationally (US laws tend to trickle out to other nations via nasty little trade treaties negotiated in private, which often bind overseas states to following US copyright and patent standards despite the existence of markedly different cultures and legislative environments in other regions) gives any workable, reasonable guidance for how a site like YouTube should handle copyright issues. 100 hours of video are uploaded to YouTube every minute; it's simply impossible for each video to be checked by a human, of course, so YouTube has built something called Content ID, which takes a database of registered copyright content from a host of publishers and IP holders and then tries to match it automatically against content found in uploaded videos.

There are two immense problems with what happens next, both of them rooted more deeply in law than in technology. Firstly, Content ID flags a lot of videos entirely inappropriately. The system has no concept of fair use - this is true both technologically, as the system will happily flag up a video shot in a location where background music was playing (or a level of a game where music was playing) as being a content violation for its musical content, and legally, as the system is incapable of understanding the notion of fair use in terms of the use of short clips, extracts, screenshots or samples. These things are essential for many kinds of video - any video reviewing, critiquing, parodying or commenting upon just about anything will need to use some small element of the thing in question in order to illustrate its points. That's why fair use (or equivalent provisions, such as fair dealing in the UK) exists in the first place. We cannot have a culture of critique, comment and review if it is a copyright infringement to use any element of the original work, no matter how small. However, few legal jurisdictions, if any, provide guidelines on fair use which are watertight enough to be implemented by a computer system like Content ID - it's more of an "I know it when I see it" legal concept which does have some clear aspects to its definition, but not clear enough that fair use could be weighed against copyright infringement by an algorithm.

"This isn't a bad system because it's persecuting honest content creators while missing out on violators; it's a bad system because it's catching absolutely everyone in the same dragnet"

So, YouTube flags everything - fair use or otherwise - as an infringement. This obviously isn't good enough, not least because of what happens in the next step; YouTube reacts to this by shutting off monetisation features for flagged videos, meaning that the creators cannot receive any share of ad revenue from their video.

This ends up looking childish and petty on the part of the copyright holder - who probably didn't actually have anything to do with the process, this being entirely a system implemented by YouTube. The publisher's only recourse to not looking like a sack full of suit-wearing genitalia would be to withdraw entirely from Content ID related databases, which even if it is possible (I'm honestly not sure on this point - I know it's complex at best) would effectively be giving up any chance of contesting even flagrant abuses of copyright. So the publisher ends up with a nasty legal notice stuck on the video with their name in the middle of it, and to make the whole affair asdumb and unpleasant as possible for all parties, the outcome is that nobody makes money from the video. The publisher doesn't get a share for their content (deserved or not), and now the video uploader doesn't get anything either. Maybe it's "fair", but it ends up harming one party without actually advantaging the other.

Of course, there are many videos on YouTube that are simply flagrant copyright violations. This isn't a bad system because it's persecuting honest content creators while missing out on violators; it's a bad system because it's catching absolutely everyone in the same dragnet. It's likely to have a chilling effect on one of the most important and rapidly-growing outlets for criticism and comment on media, it makes publishers look absolutely terrible and it destroys the livelihoods of the small but growing number of pioneers working in this field. It catches the bad guys but punishes everyone else in the process.

What needs to happen, unfortunately, is much more than an overhaul of Content ID or YouTube's rules. We will ultimately need a new copyright settlement that respects the changes that have occurred to content ownership, creation and distribution in the past 20 years. Widespread mechanical licensing of content and revenue sharing will almost certainly need to feature in that somehow; as unpleasant as it may seem to some creators, some kind of blanket permission for derivative works tied up to an automatic system for sharing resulting revenues is probably one major part of the solution to a problem that's only going to get bigger. Moreover, fair use laws are going to need to be updated - made more robust, more encompassing and most of all, more clear in the strict definitions of the content they cover, such that they can be implemented automatically by Content ID style systems with a reasonable chance of actually working.

" An attack on Let's Play videos is just one minor skirmish in a wider battle"

We need a system where you can share content on the Internet and, if it's fair use - a review, a critique, a parody - it's cleared by the system (or treated as innocent until proven guilty), while if it uses infringing material beyond the bounds of fair use, rather than shutting off your revenue stream, providers like YouTube simply allocate a reasonable split of it to the publisher. That's not something that would be impossible to implement (though the devil would be in the details), but it's something that, to the best of my knowledge, simply wouldn't be possible in the current legal regime. A private arrangement between every rights holder in the world might manage it, but what chance of that ever happening?

In short - as YouTubers vent their fury and publishers scramble to protest their innocence in this latest bout of foolishness, we need to look to a wider picture and understand that what we're seeing is merely a microcosm. Technological and cultural changes have outpaced the copyright system; that system in turn has been held back by entrenched corporate interests. An attack on Let's Play videos is just one minor skirmish in a wider battle that simply must end in root and branch reform of the copyright system - creating a system for the 21st century that actually fulfils its duty of protecting and advantaging creators, consumers, and culture as a whole.

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Rob Fahey avatar

Rob Fahey

Contributing Editor

Rob Fahey is a former editor of GamesIndustry.biz who spent several years living in Japan and probably still has a mint condition Dreamcast Samba de Amigo set.