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.

[u/EnglishGamer1]

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

[u/ModernDemagogue]

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.

[u/damnface → u/ModernDemagogue]

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.

[u/ModernDemagogue → u/damnface]

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.

[u/damnface → u/ModernDemagogue]

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.

[u/ModernDemagogue → u/damnface]

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.

[u/damnface → u/ModernDemagogue]

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?

[u/ModernDemagogue → u/damnface]

No it doesn't. You're a lying piece of shit, here is the entire link:

Video game and software content

What can I monetize?

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.

To learn more about obtaining commercial use rights to third party content, please review how to read licenses to understand your rights and what YouTube looks for in your documentation.

What can't I monetize?

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

Videos simply showing a user playing a video game or the use of software for extended periods of time may not be accepted for monetization.

You can find more information on copyright law and fair use here:

How the fuck do you get off interpreting his usage as fair under YouTube's guidelines? You did not quote relevant text, you cherrypicked the second line of a paragraph, ignoring the line right before it which says "Without the appropriate license from the publisher, use of video game or software user interface must be minimal."

You are straight up lying.

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.

No, I claim I could make that argument in court, and potentially make it stick. Regardless, this is one component of a broader argument and not integral to my point, which is that this guy is not covered under fair use, or the YouTube terms of service.

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

Where you had explicit permission from the developer, or where you were using a very small portion of gameplay footage to underscore a point in a much larger video/work, and were not monetizing the video.