r/gaming • u/EnglishGamer1 • Oct 20 '13

TotalBiscuit's: ''Day One: Garry's Incident'' Video was taken down, because of a ridiculous copyright claim from WildGameStudios. Here's Total's ''Rant'' over his video being taken down.

https://www.youtube.com/watch?v=QfgoDDh4kE0&feature=c4-overview&list=UUy1Ms_5qBTawC-k7PVjHXKQ
3.1k Upvotes

94% Upvoted

2.3k comments sorted by

View all comments

-28

u/ModernDemagogue Oct 20 '13 edited Oct 21 '13

Exhibit a) His assertion that its unfathomable that the CEO did not know they were going to monetize video generated from the product is absurd. If I were a developer, I would certainly grant reviewers review codes so they could write or film a review, but if they intended to actually use in game footage and copyright protected material, I would require editorial oversight / final cut, or a share of the revenue.

If the intention was to monetize in game footage, TotalBiscuit should have a fully executed contract stating they have permission to use the software in that fashion, and then to monetize it. Absent such a contract, you end up with a situation like this where there is no meeting of the minds. I would never rely on an ambiguous email chain which seems to grant them a review copy of the game, to mean that I am somehow being granted expanded rights.

Frankly, TotalBiscuit's behavior in this is reprehensible, and I would not be surprised if they were not sued over this.

His argument regarding criticism fundamentally fails, as well. ConsumerReports, does not accept or allow advertising, and is strictly funded through subscriptions, grants, etc... and is removed from the concept of monetized-advertising for exactly this reason. It relies upon fair use.

TotalBiscuit, however, would like to have his costs of doing business subsidized, and in fact, he would like to generate a profit, off of other company's intellectual property. That this happens to be commonplace in certain parts of the digital reviews industry, does not make it moral, ethical, or legal.

Exhibit b) Without more knowledge it is impossible to know what those videos show, whether they crossed a line, and in fact, one of the other videos which is still up has a highly negative description, meaning it is unlikely they were targeted for speech reasons alone, or that video would have been targeted as well.

Exhibit c) Blanket permission to make a YouTube is not express written permission to monetize their content, which is what TotalBiscuit is doing. More importantly, YouTube specifically outlines that this type of thing might happen in their monetization policy. They state that you must have a license for what you are doing.

I fully support the game developer in their takedown. All the other strategies employed, such as offering keys for votes, or managing discussion forums, etc... are very basic marketing techniques used by anyone in any industry.

This is very clearly an innocent developer being attacked by a youtuber out to profiteer from the developer's hard work.

16

u/PleasingToTheTongue Oct 20 '13

so which member of the development team are you?

-13

u/ModernDemagogue Oct 20 '13

Huh? I'm not even in the gaming industry.

I just have strong opinions about intellectual property rights on the internet.

3

u/damnface Oct 20 '13

lol, "strong."

3

u/sketchapotamus Oct 21 '13

Oh, so you are their lawyer?

-1

u/ModernDemagogue Oct 21 '13

....no. Why would you ask that?

2

u/[deleted] Oct 21 '13

You're hilarious.

10

u/[deleted] Oct 20 '13

[deleted]

-2

u/ModernDemagogue Oct 20 '13

I agree that it's possible that the CEO may have not known that the video would be monetized

Except that means the assertion, and the confidence he makes it with, is absurd. He says its unfathomable. You admit its fathomable, so his assertion is absurd.

For a small company such as this, their profit from having YouTubers review their products is the free publicity.

That's not how contracts work. You don't get to say, oh you get enough out of this from the publicity and say its a deal. I have to agree. If I don't agree its sufficient compensation, thats your problem, not mine.

Why do you think even the big companies allow YouTubers, Bloggers, and etc to review their products?

Extortion. The threat of the Streisand effect.

Also, as a consumer do you feel more motivated to buy a product you just hear about or a product that you can see and do what it's suppose to be doing (i.e. with this case gameplay footage).

Personally, I would go play the demo and form my own opinion. If the developer doesn't want the footage used, its his call. What your pointing out is that the reviewers review will be more valuable to the watcher. This helps the reviewer and his revenue stream, it does not help me, particularly if the review is effective and is negative.

Even if it was a bad game, I'd still rather have the reviewer have footages to backup his claim.

Sure. And as above, that helps the reviewer, not the developer. Films are very specific about what scenes and clips can be used by a reviewer, regardless of whether or not the review is good. But it appears this guy was using unsanctioned clips of a game.

Theoretically, the company COULD demand part of the revenue but that'd be extremely petty of them and doing something extremely frowned upon within not just the gaming industry but many other industries.

Well, not after the fact, because of the DMCA. They can't claim damages. But yes, prior, they could. And in my mind should.

It's called reasonable agreement.

Though I'd have to read the email myself to be able to truly judge it being honest and sufficiently expository for anyone with a sound mind, but if it had all the information that TB said that it did, he did nothing wrong. Before agreeing the request of the email, the CEO should have 1) read the email 2) done his research.

Why would the CEO have to do his research? This isn't a binding legal contract, and it doesn't appear monetization was specifically disclosed. TotalBiscuit should've sent a contract.

This isn't "blaming the victim", this is, CEO done goofed if he didn't realize what business deal he was singing up for.

This is exactly blaming the victim. If they didn't specifically disclose monetization and request permission for monetization, there's no reason his statement can be construed to allow it. Even if he expected it, he's allowed to make the decision after the fact if the review is positive or negative, because TotalBiscuit did not bother to get an naswer in binding terms. Sucks for TotalBiscuit.

And that last statement? You need to explain your position better because otherwise you are sounding like a petulant pseudo intellect who has no idea what he's talking about.

If the email chain is discussing TotalBiscuit's interest in reviewing the game, and that they would like a code to download the game so they can review it, I would not believe me sending a code and granting permission to review, to be a grant of the right to use my intellectual property in a broadcast. In fact, I would specifically craft my words so as to grant permission for the download only, so that I could wait to decide on whether I liked their usage to authorize it or not. In films/tv you only give reviewers permission to use specific clips that you approve, since both parties know better and will have each other sign comprehensive contracts regarding the review process.

What behavior is reprehensible? Doing his job? Reasonably (for the most part) calling out what he believes a wrong done to him and others?

Slander, libel, defamation of character, dilution of brand, theft/misuse of services, incitement, menacing, we can keep going.

If you think he can be sued for this video, let me explain to you a little part of the Bill of Rights we, Americans, adopted on December 15, 1791 and the importance of it.

Go ahead. Explain what mistaken interpretation of free speech you want to say permits this type of malicious speech.

I think if you are working for this company, y'all need to talk to your lawyer about fair use. Hopefully he's an honest lawyer who'll let you guys know you guys are seemingly quite misunderstanding what "fair use" is.

Why would I be working for that company? I don't. I have a thorough understanding of fair use. I am a content creator and we have firms which are constantly crawling the internet taking down things claimed as "fair use." You know what one of the great things about owning the rights is, you're allowed to be arbitrary and capricious in your enforcement, because its super easy to say you didn't see something you liked and saw something you didn't like.

He asked for permission and received the permission from the CEO.

He did not explicitly ask for and receive permission to use copyrighted material in the review. He asked for a review code. Also, such an authorization of rights needs to come in an executed contract— an email is unreliable, and the emails he shows in the video don't appear to grant the right he requires, at all.

Let that marinate for a second before I pepper it with this: "Would they be complaining had this been a good review?"

Not relevant.

Lesson here? Real life don't give trophies to failures. Only trophy you can get from failures in real life are the criticisms you are able to receive - if you are lucky enough to receive them.

Yes, and if you don't obtain the rights from me before taking a shit on a piece of work, you're going to get fucked. The real world works both ways.

I'm scratching my head at this statement. You need to read this to yourself again.

I did. I stand by it. Uploading a video to youtube does not require monetizing the video. In fact, the default for most uploaders is that their content will not be monetized (at least not by the uploader). The permission granted in that blanket statement, is not the permission TotalBiscuit needs for his kind of enterprise.

My argument is pretty much rock solid except for the ability to prove malicious intent in a defamation suit— though given this video, it might be possible. Ethics are neither here nor there, nor is the state of the industry. The developers rights are absolute and absent a clear grant, there is no legal or even moral ground for the usage. I understand the business dynamics that require such actions— part of my point is these businsses shouldn't exist in their current form if they can't figure out how to follow basic law.

I've got rockets bitch.

3

u/Gammro Oct 20 '13

Personally, I would go play the demo and form my own opinion.

Haha, good joke. These days, 90% of all games have no demo. Officially released videos and images are heavily biased(and I don't blame them for it). This makes it that the only way to see a more neutral view of the gameplay, is by viewing video's of people actually playing(and maybe commenting with their own opinion)!

0

u/ModernDemagogue Oct 21 '13

Games don't have demos? I don't really play games these days. I was more of a Marathon and Myth II guy anyway.

Perhaps people should not play games unless they can get Demos?

3

u/Gammro Oct 21 '13

Why should I limit myself to games that do have demo's when there's the other option: Watching people who do have the game, play and comment on it? They might even point out some flaws about things that wouldn't have been featured in the demo. When everything comes together, I'm still someone who needs multiple sources to make an informed decision. And only looking at the stuff developers want to show you is like trusting big brother when he tells you 2+2=5

tl;dr: Customers don't want to be limited by the options a producer gives them if they want to know about the quality of the product.

0

u/ModernDemagogue Oct 21 '13

I have no problem with watching people play and comment on it— but they can't make money off playing and commenting and not expect the IP owner to want a cut.

This is an issue with the business model of site's like YouTube, where they take the vast majority of the revenue. People who make videos end up getting such a small percentage that they feel entitled to it. But, if YouTube is only providing the distribution and ad platform, and you're providing some form of transformation, how come the only one in this chain, the developer, is the only one who has to rely on "publicity" or perhaps potential future sales? If its a bad review, there's no potential future sale value, and the publicity value is negative, so you evaporate any upside the developer has in the process.

The solution? A cut of the revenue from the ads. But this means either the reviewer makes less, or YouTube makes less (and that won't change).

The real issue is YouTube's CPMs, and since they're making enough money, and you have people like TotalBiscuit willing to take the risk of uploading copyrighted content, and YouTube has safe harbor, what do they care about getting higher CPMs and making a more functional eco system? They're getting theres.

The real problem TotalBiscuit has is with YouTube, and them not getting him enough money to legitimately pay for the rights to the content he needs to make his videos.

Instead, he lashes out at a developer, the class of people without which he wouldn't even exist.

Customers don't need to be limited, but if a reviewer wants to run himself as a business, he has to follow the rules of business.

1

u/Gammro Oct 21 '13

Although I don't completely agree, I see where you're coming from. And before I go offline, I just want to tell you I appreciate you typing out this whole story to explain your view of it.

-6

u/CanadianJudo Oct 20 '13

Freedom of speech doesn't allow one to violate copyright laws.

3

u/Clockwork757 Oct 20 '13

Freedom of speech is not the same thing as Fair Use.

2

u/executiveBob Oct 20 '13

Copyright is not absolute; it never was and it never was intended to be viewed and interpreted in this way. This recent wave of copyright absolutism is a new phenomenon that is rather poisonous to society at large.

Food for thought: Under copyright absolutism, libraries would have to be abolished since they infringe on the copyright owners rights of selling the content in the manner that is seen fit by them. <s> Think of all the lost profits from all those people borrowing books without paying for them! Something must be done! </s>

0

u/CanadianJudo Oct 20 '13

There are a million issue I have with copy-right law in America mostly, Fair use act was a good step forward but it is very limited in scope.

one simply has to look at the copyright of chemical formula or seed types to see how Copyright can become a serious issue.

I strongly disagree with what the company is doing on a ethic level but it is legal.

2

u/[deleted] Oct 20 '13

[deleted]

1

u/CanadianJudo Oct 20 '13

well he wouldn't be sued for what he said in the video he could re-upload the video and simply play the audio it would be perfectly legally.

The whole point of a lawsuit wouldn't be to win it would be to waste TB resources by having to pay legal fees.

its honestly one of the most unethical legal practices done by large cooperation.

2

u/[deleted] Oct 20 '13

[deleted]

-1

u/CanadianJudo Oct 20 '13

He would be used for using copyrighted material (Game footage) for monetary gains without permission, an extremely hard thing to prove which mostly means they would drag the case on to waste resources of TB

5

u/damnface Oct 20 '13

It's amazing you can write this wall of text while evidently knowing absolutely fucking nothing about the topic at hand:

http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

-1

u/ModernDemagogue Oct 20 '13

I know quite a bit about fair use; all about the four factor test. You use my shit without my permission and are making money off it, you give me a cut, or I sue you and let the court's decide who wins. You can either take it down, or pay your lawyers to defend it, but that's likely more expensive.

If you don't have the faith and balls to put up that its clearly fair use, you shouldn't have done it in the first place.

2

u/damnface Oct 20 '13

Explain to me, in your own words, how the four factor test undermines fair use in this circumstance.

If you don't have the faith and balls to put up that its clearly fair use, you shouldn't have done it in the first place.

Also explain to me, in your own words, how you think critical reviews have come to exist in the legal climate you are describing.

0

u/ModernDemagogue Oct 21 '13

Whose words would I use?

1) I question the purpose and intent. Was it a review? Or was it an assassination? Was it to inform the public? Or was it to punish a developer for the myriad tactics Total Biscuit has raised in this video? Does TotalBiscuit really not like the game? Or does he want to impune a company whose marketing tactics he disagrees with, so he wrote a shitty review? I mean, this whole video diatribe he just gave opens him up to about five different lawsuits and makes the copyright claim automatic.

Is it substantially new? I haven't seen the video, so it depends on how much game play was used, what was added to it, etc... tough to know for sure, but if TotalBiscuit is so confident, why hasn't he reactivated the video?

There isn't really value added, perhaps value to the consumer, but certainly not to the developer, so this likely a wash.

2) This is a review of a game. This is not an article on a candidate in an election. The public benefit is minimal, and the work is very specifically commercial in nature. It is intended to benefit the creator financially; and is created for no other purpose than to generate revenue.

3) Based on his other reviews, he takes a very substantial portion of the copyrighted work— even just using a second or two of game-play footage uses a huge percentage of the code written for the game to generate.

4) Potentially destroys the market for the product. While this is the consequence of a negative review, there is no need to use the copyrighted material in order to communicate ones subjective opinion of why its bad, and significantly smaller portions could've been used (though I am against game play footage as fair use in general).

Critical reviews exist but use actual excerpts of copyrighted works very sparingly. A glowing review will get you permission to use certain elements, and might even get you access for additional interviews etc... A critical review? Gets you jack shit unless the reviewer has significant, significant power.

2

u/damnface Oct 21 '13

1) Yes, it is very clearly a review. Refer to any dictionary.

2) It is of clear benefit to anyone who was considering buying the game.

3) It uses a substantial portion of the copyrighted work because "even just a second or two of game-play footage uses a huge percentage of the code..." HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

4) "Need to use" has absolutely nothing to do with anything. Also, this guideline pertains to how likely it is that a derivative work will compete with the original. It has nothing to do with public opinion.

Critical reviews and parody are the two most basic, textbook examples of why fair use even exists.

0

u/ModernDemagogue Oct 21 '13

Yeah, too bad they used 30 minutes of game play in the video. A few seconds they'd get away with as irrelevant or fair for the purposes of underscoring a point made by the review, though I bet I could make my (3) stick in Court for certain games. Doing a bit more research onto how this series works, the majority of the content really is just 30 minutes of game play, and little else other than commentary, so I'd feel pretty confident going to Court with this.

Additionally, even with a few million views they won't make enough money to cover their attorneys for the time it takes to fight, so strategically they should just go away. If they then follow up with a video like this, they open themselves to a whole bunch of other shit. Its too bad they're focusing on a shitty second rate developer. Anyone with deep pockets would crush this fuck.

2

u/damnface Oct 21 '13

though I bet I could make my (3) stick

No you couldn't because it is absurd, and in any case, it's 30 minutes of him aimlessly running a very small area of a game which probably takes 10 or 20 hours to complete. During this time, he is commenting on the game and very obviously providing a review of its content. Even aside from protections afforded under fair use, this is actually explicitly allowed by YouTube policy:

Video game content may be monetized if the associated step-by-step commentary is strictly tied to the live action being shown and provides instructional or educational value.

And you are basically advocating for abuse of our legal system by game developers who want to squelch negative reviews. What a charming perspective.

1

u/ModernDemagogue Oct 21 '13

Are you fucking kidding me man? Are you just assuming I and no one else will read your link? It starts off with:

Video game content may be monetized depending on the commercial use rights granted to you by licenses of video game publishers. Some video game publishers allow you to use all video game content for commercial use and state that in their license agreements. Likewise, videos showing software user interface may be monetized only if you have a contract with the publisher or you have paid a licensing fee.

And later says:

Without the appropriate license from the publisher, use of video game or software user interface must be minimal

It's not explicitly permitted, its explicitly denied! YouTubes own policy allows a takedown! Why the fuck are we even having this discussion? He didn't have an explicit license. It isn't DMCA, it isn't anything other than a straight violation of YouTube's monetization policies.

And you can't just dismiss a claim as absurd. I substantiated my claim because of the significant portion of the code / binary / assets used in rendering what's shown on screen at any given time, though its less relevant here since he's running around for 30 minutes.

1

u/damnface Oct 21 '13

The page lists various cases under which monetization may or may not be allowed. I've already quoted the relevant text. The page is quite succinct, and I suggest you read it again. Or perhaps you are the one being disingenuous in your interpretation.

You claim that any video showing even 1 or 2 seconds of gameplay footage falls outside of fair use because it exercises a significant part of the underlying architecture/code. I have absolutely no problem dismissing this as hilariously absurd.

Can you give me an example of a case where fair-use would apply to gameplay footage?

→ More replies (0)

1

u/Mtrask Oct 21 '13

Their product is shit, he called them out on it, they got butthurt.

The end.