Is a copyright violation “game over” for PewDiePie?

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Popular YouTuber PewDiePie has once again garnered unwanted attention for his recent racist outburst. This time, a video game developer is responding to the popular video game streamer by having some of his content removed from YouTube. Campo Santo, an independent video game developer, is leveraging the Digital Millennium Copyright Act of 1998 (DMCA) against the YouTube star to remove his content from the most widely used video-sharing website. PewDiePie’s situation raises questions regarding the legality of streaming video games, copyright holders’ rights against these streamers, and the potential for both fair removal of videos and abuse of power by game developers.

Let’s Play sessions allow prospective consumers to see and hear what their experience may be like if they purchase and play the game.

PewDiePie, whose real name is Felix Kjellberg, is the most popular video game streamer in the world. His YouTube profile shows he currently has just over 57 million subscribers and 14 billion views. The 27-year-old Swede gained fame in 2011 for his popular “Let’s Play” styled videos where he simultaneously plays a video game and streams the gameplay to the web accompanied by his spontaneous reactions and commentary. From the viewer’s standpoint, PewDiePie is observed playing either a brand new or popular video game in which the gameplay can be seen and his thoughts on the experience can be heard. More than the typical video game review, Let’s Play sessions allow prospective consumers to see and hear what their experience may be like if they purchase and play the game.

While streaming video games can promote or criticize products, they can also strengthen a gamer culture sometimes associated with misogyny, anti-Semitism, and racism. In February 2017, a division of Disney severed ties with PewDiePie after the gamer showed a video clip of two men he had paid to hold a sign reading “Death to all Jews.” Gamer PewDiePie’s racist remarks in a recent gaming session only provide the latest example. Specifically, while streaming a session of Player Unknown’s Battlegrounds, PewDiePie can be seen and heard saying, “What a f——- n—–.”

“Jeez, oh my God, what the f—,” he said. “Sorry, but what the f—. What a f—ing a——. I don’t mean that in a bad way.”

PewDiePie followed this statement with laughter.

Kjellberg later apologized for his comments in a minute and a half long apology, calling himself “an idiot.” Shortly after the video of PewDiePie’s racist outburst leaked, Sean Vanaman, a video game developer and co-creator of Campo Santo, tweeted that the company would be filing a DMCA takedown request of PewDiePie’s present and future content using the developer’s games. A DMCA takedown occurs when content is removed at the request of the owner of the content or its copyright. PewDiePie uploaded a Let’s Play session of the game Firewatch, a Campo Santo production, back in February 2016. The video has since been removed, but video game website Kotaku reported the video had approximately 5.7 million views and a content description that stated Firewatch is a “wonderful, story-driven game”—a description which may prove important down the road.

The DMCA provides significant protection to service providers such as YouTube.

President Clinton signed the DMCA into law on October 28, 1998. The DMCA protects the rights of copyright holders and ensures that their properties are not stolen or used illegally. The legislation implements two 1996 World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty. The WIPO Copyright Treaty, of more relevance here than the Performances and Phonograms Treaty, is an agreement under the Berne Convention that protects the works and rights of their authors in a modern, digital environment. The treaty specifically deals with computer programs in various modes and forms, including video games.

The DMCA also provides significant protection to service providers such as YouTube. The Act provides “safe harbor” from copyright infringement liability for online service providers who qualify. To qualify for safe harbor protection, service providers must designate an agent to receive notifications of copyright infringement claims. This designation is effectuated when the service provider makes public the contact information of the agent on its website and provides that same information to the Copyright Office.

When a copyright owner, like Campo Santo, has its work infringed upon through a service provider, such as YouTube, the copyright owner may send a notification known as a “takedown notice” to the service provider’s designated agent. For these takedown notices to be legally effective, the notice must be delivered to the designated agent in writing and include six pieces of information:

(1) a physical or electronic signature by an agent authorized to act on behalf of the owner of an exclusive copyright that is infringed upon; (2) an identification of the copyrighted work that has allegedly been infringed; (3) an identification of the material that is allegedly infringing and is to be removed from the service provider’s service; (4) information that is reasonably sufficient to allow the service provider to access the complaining party; (5) a statement that the complaining party is relying on a good faith basis in their allegation that the material being complained of is not authorized by the copyright owner, its agent, or the law; (6) a statement that the information in the notice is accurate and under penalty of perjury.

Upon receiving a sufficient takedown notice, a service provider must act to remove the material subject to complaint in a reasonable time. Failure to remove the material may result in the service provider losing its safe harbor status.

YouTube is almost always going to comply with the takedown notice and remove the content for fear of losing its safe harbor protection.

Michael Lee, founding partner at the law firm of Morrison and Lee LLP, recently explained to Rolling Stone the DMCA can legitimately be used to remove streamed video game material from service providers’ services because these streams are technical copyright infringements. Lee explained, “[I]deas are not protected under copyright but the expression of an idea is . . . Therefore, many parts of a video game are protected under copyright including the look of the game, the dialogue, and the music.” The DMCA provides a significant amount of power to copyright holders and little to none to individual consumers. While the DMCA protects the rights of copyright holders like Campo Santo, the disparity in allocation of rights lays down a potential avenue for abuse. Lee also noted the DMCA has actually been used to stop criticism and negative comment about the underlying work, but this is technically allowable under the DMCA.

In PewDiePie’s situation, the DMCA’s authority can be used in a “just” way to remove PewDiePie’s content; although, under the Act, the content could have just as easily been removed if PewDiePie had not made racist remarks. In other words, Campo Santo could have filed an effective takedown notice regardless of the offensiveness of PewDiePie’s streaming. Taken even further, any streaming or posting of video game content on a public forum like YouTube could likely be a technical copyright infringement, and YouTube is almost always going to comply with the takedown notice and remove the content for fear of losing its safe harbor protection.

PewDiePie does have a “fair use” defense available to him if he chooses to challenge the takedown in court. Intellectual property lawyer Chris Schwegmann told Rolling Stone in a recent interview that copyright law allows individuals to use portions of copyrighted materials as long as they are “used in a transformative way.” He believes it is likely that PewDiePie could argue that his streaming of the game Firewatch and the accompanying commentary is a “transformative” use of the copyrighted material. Potentially helping PewDiePie’s argument, the Firewatch webpage specifically says that people may stream the game and even monetize the videos. While such language on the website may not constitute a license to full use of Campo Santo’s copyrighted material, it is a bad look for Campo Santo. Using the DMCA as a tool to punish hate speech may be appropriate in this specific instance, but its broad grant of power to copyright holders should leave those who stream their video game experiences with significant concern.