DarksydePhil / TheyCallMeDSP / Phil Burnell - General Discussion

[Freshtodeath]

I feel like there are only 2 options with Phil.

1. He has 500k in bank and he's a sleazeball.

2. He is actually 2 credit card payments away from the adult life crumbling down.

The latter seems more likely only because Panda Left him and she seemed stressed about life as well.

 

[Apteryx Owenii]

Copyright sperg time!

Pretty much any company can strike someone on youtube and there's very little at risk for the striker as long as they aren't misrepresenting themselves. A strike shouldn't be given if the content obviously falls under fair use, but in practice there is nothing stopping just such a strike in almost all cases. A manual strike gives the channel two basic options: eat it, or contest it. Contesting it throws the ball back at the claimant, whom youtube basically tells to sue you if they wish to pursue the claim and then gives them time (10 days if I remember correctly) to respond.

At that point the claimant's response has to come in the form of them suing your ass. If they don't, the strike is nullified and the video can go back up.

As far as let's plays, there is simply no clear legal precedent over what constitutes 'fair use.' So far, somebody has always blinked. Either the youtuber just takes the strike or the copyright owner doesn't sue when presented with a copyright notice and the video goes back up. This is one of those cases where nobody really wants to end up getting ruled against or spending a lot of money over what is usually a pretty small issue. I suspect something similar will happen here.

...but. Atlus and Japanese companies in general are... touchy about such things. So while I think it's unlikely, it's possible they could decide to actually initiate proceedings, probably hoping that they could beat down Phil (and anyone else) with legal costs even if they're on shaky copyright grounds.

Everyone playing has agreed to the EULA and it was public knowledge what they didn't consider acceptable behavior to do with their game...

EULA's are not enforced via copyright law but I guess he should have at least not been surprised by this move.

 

[Shugo]

EULA's are not enforced via copyright law but I guess he should have at least not been surprised by this move.

EULAs are not legally binding despite them including misleading text indicating lawlessness based on their lawyer's own interpretation of the laws. EULAs have been found illegal on several occasions due to breaking consumer protection laws. Youtube however doesn't care much about reviewing DMCA. They simply let copyright holders have direct access to the people who upload videos, for legal action. Youtube just steps aside, and lets whoever claims they own a video posted on youtube take that video down, and if persistent, let them sue the uploader.

There's a different legal question between the legality of broadcasting gameplay footage, but do you really think it will hold up that Atlus can claim streaming of Persona 5 is completely against the law, when the system it's on, the PS4, has the capability to stream all its games built into the system? I heard Persona 5 doesn't let you stream some parts, but I don't think that legal warning is valid or even an accurate representation of the law, when the hardware it came with has a button designed on the controller designed solely to broadcast gameplay footage.

When I think about video game footage being "copyrighted" by the publisher or developer, I tend to more agree that the act of "playing" the game through your own inputs turns the recording into a transformative, individual, creative work. I can understand any developer DMCAing someone for uploading cutscenes of their games, since they are by definition not transformative, but gameplay by itself? I doubt it would hold up in a court of law.

 

[Um Oh Ah Yeah]

I heard Persona 5 doesn't let you stream some parts

This is slightly inaccurate. You cannot stream any part of Persona 5 through the native ps4 streaming system, except for the intro song. The entire rest of the game is blocked.

 

[FapCupFanta]

This is slightly inaccurate. You cannot stream any part of Persona 5 through the native ps4 streaming system, except for the intro song. The entire rest of the game is blocked.

This is true. Anything that would take a screenshot or record video of the game past the title screen is blocked. Are people just using capture cards to get gameplay footage, in this case?

 

[The Fool]

This is true. Anything that would take a screenshot or record video of the game past the title screen is blocked. Are people just using capture cards to get gameplay footage, in this case?

I'd imagine. Capture cards are standard fair for let's players. I didn't even know the PS4 had a streaming system, I imagine all the let's players are just so used to using a capture card that they don't really care about solutions like that.

 

[Um Oh Ah Yeah]

This is true. Anything that would take a screenshot or record video of the game past the title screen is blocked. Are people just using capture cards to get gameplay footage, in this case?

Yes. I stream using the native ps4 capture stuff because I only ever stream with friends; if you wanna stream p5, gotta use a capture card.

 

[Xenomorph]

 

[AnOminous]

Copyright sperg time!

Pretty much any company can strike someone on youtube and there's very little at risk for the striker as long as they aren't misrepresenting themselves. A strike shouldn't be given if the content obviously falls under fair use, but in practice there is nothing stopping just such a strike in almost all cases. A manual strike gives the channel two basic options: eat it, or contest it. Contesting it throws the ball back at the claimant, whom youtube basically tells to sue you if they wish to pursue the claim and then gives them time (10 days if I remember correctly) to respond.

While I think it's particularly to care about cutscenes, as they are mostly just annoying garbage you skip to get to the real gameplay at least after seeing them once, they're pretty tough to argue as fair use, because they're generally pre-generated or at least scripted. The content is entirely the creation of the copyright holder. Phil grunting unintelligibly over it or making a Holocaust joke or whatever is at best minimally transformative and unlikely to be considered fair use.

Also, spoiler content, which is what Atlus seems primarily concerned with, impacts the fourth and most important factor in a fair use analysis, the impact on the commercial value of the work. While obviously you couldn't use copyright to stop someone from saying "Rosebud was a sled!" or "Snape kills Dumbledore!" actually posting the text of the pages where it happened in the early days of the release would have less justification as fair use.

Gameplay is similarly a derivative work, but has a lot more claim to being transformative. It is more a work created using the software, including samples of intellectual property like characters, graphics, textures, backgrounds, etc. Even that's on dodgy legal ground, but I think Atlus is pretty solidly in the right about things like cutscenes.

At the very least, it isn't a bogus DMCA strike. They can say completely in good faith that they believe it is not fair use, and could file a colorable copyright claim in a federal court without it being frivolous, even if they ultimately didn't win.

 

[Xenomorph]

While I think it's particularly to care about cutscenes, as they are mostly just annoying garbage you skip to get to the real gameplay at least after seeing them once, they're pretty tough to argue as fair use, because they're generally pre-generated or at least scripted. The content is entirely the creation of the copyright holder. Phil grunting unintelligibly over it or making a Holocaust joke or whatever is at best minimally transformative and unlikely to be considered fair use.

Also, spoiler content, which is what Atlus seems primarily concerned with, impacts the fourth and most important factor in a fair use analysis, the impact on the commercial value of the work. While obviously you couldn't use copyright to stop someone from saying "Rosebud was a sled!" or "Snape kills Dumbledore!" actually posting the text of the pages where it happened in the early days of the release would have less justification as fair use.

Gameplay is similarly a derivative work, but has a lot more claim to being transformative. It is more a work created using the software, including samples of intellectual property like characters, graphics, textures, backgrounds, etc. Even that's on dodgy legal ground, but I think Atlus is pretty solidly in the right about things like cutscenes.

At the very least, it isn't a bogus DMCA strike. They can say completely in good faith that they believe it is not fair use, and could file a colorable copyright claim in a federal court without it being frivolous, even if they ultimately didn't win.

Exactly, Phil keeps saying his work is transformative but it's not. He is adding nothing to it to make it so.

 

[Apteryx Owenii]

...At the very least, it isn't a bogus DMCA strike. They can say completely in good faith that they believe it is not fair use, and could file a colorable copyright claim in a federal court without it being frivolous, even if they ultimately didn't win.

Yeah I certainly wouldn't say it's a baseless copyright claim. Someone else made the movie analogy and it's apt: streaming an entire production but putting a few comments over it wouldn't be considered fair use. And yet using significant portions- even 'spoilers'- to demonstrate criticism often would. Tough and expensive line to figure out in court. And then you have narrative games in which even the regular non-cutscene gameplay could be considered injurious to a publisher if streamed. How much gameplay do you need to be transformative? I wouldn't want to gamble my career/channel on such a question.

I think it's a legal battle almost no one wants, though. I don't really follow Phil (or any streamers) so I only know him as some dude that whacked off on camera but Atlus has rustled lot of jimmies with their moves on this one. And that's kinda fun.

EULAs are not legally binding despite them including misleading text indicating lawlessness based on their lawyer's own interpretation of the laws. EULAs have been found illegal on several occasions due to breaking consumer protection laws. Youtube however doesn't care much about reviewing DMCA.

Yeah this one depends a lot on jurisdiction (US courts have found in favor of adhesive contracts like EULAs more than the EU has... which is funny when the Supreme Court Chief Justice admits that he clicks them without reading)

There's a different legal question between the legality of broadcasting gameplay footage, but do you really think it will hold up that Atlus can claim streaming of Persona 5 is completely against the law, when the system it's on, the PS4, has the capability to stream all its games built into the system? I heard Persona 5 doesn't let you stream some parts, but I don't think that legal warning is valid or even an accurate representation of the law, when the hardware it came with has a button designed on the controller designed solely to broadcast gameplay footage.

When I think about video game footage being "copyrighted" by the publisher or developer, I tend to more agree that the act of "playing" the game through your own inputs turns the recording into a transformative, individual, creative work. I can understand any developer DMCAing someone for uploading cutscenes of their games, since they are by definition not transformative, but gameplay by itself? I doubt it would hold up in a court of law.

I'm not a huge fan of expansive copyright claim but I agree that the cinematic\pre-rendered stuff is a lot more risky than gameplay that would not happen but for the continued input of the player. I'd be worried if a court finds that spoilers have some specific protection though, even if they might theoretically hurt sales. It's a lot harder to define 'spoiler' than it is 'pre-rendered cut scene'

 

[AnOminous]

There's a different legal question between the legality of broadcasting gameplay footage, but do you really think it will hold up that Atlus can claim streaming of Persona 5 is completely against the law, when the system it's on, the PS4, has the capability to stream all its games built into the system?

No. And I'll note Atlus is not actually claiming this. In fact, as much assrage as their actions are generating, and I think it may be imprudent to alienate your customers in this way, I think they've been quite selective and diligent in what they've actually DMCAed. I fully expect they'll be less concerned as the release date recedes into the past.

And let's also face a simple fact. Let's Players also exploit these recent releases precisely because this is the time to make money on them, right after they come out or, if you can get a deal, even before it. This opportunity to make money on an intellectual property is at the very core of what copyright protection is.

Whatever the law is one way or another, not being an utter dick goes a long way. DipShitPhil phails utterly at that. This is why he'll never have a good professional relationship with anyone and is ultimately doomed, at least in the long term. He never learns.

 

[ChickenSkinBeanbag]

Exactly, Phil keeps saying his work is transformative but it's not. He is adding nothing to it to make it so.

Regardless of how he might do in court at the moment, Phil can't and won't transform his content into something that's safely covered by fair use. He's spent years trying to brand himself as the last bastion of raw, unedited gaming experiences on Youtube. He thinks that sets him apart from everybody else and it does because he does it in such an outdated way, but the fact that he's a tard-raging manbaby is what brings in the viewers.

 

[Adolf_Ash]

If you post sarcasm now in DSP's stream chat, he will outright ban you...especially if it's towards those precious peasants that supply him with bits.
The dictatorial attitude of this clown is simply fascinating. It's as if the more unpopular he becomes, the more power he thinks he is ordained to wield.
Completely ass backwards.

Phil's transformation into Lone Tear God is almost complete. All he needs is start saying GTAB in blackface and he's done.

I think we can check GTAB on the list now. Faster than I imagined too!

 

[Dragoonism]

Phil's transformation into Lone Tear God is almost complete. All he needs is start saying GTAB in blackface and he's done.

He needs to buy a LTG t-shirt before being allowed to use that phrase.
LTG claim you are not allowed to use GTAB unless you by his merchandisers.

 

[A Witty Name]

He needs to buy a LTG t-shirt before being allowed to use that phrase.
LTG claim you are not allowed to use GTAB unless you by his merchandisers.

Black DSP can make an exception for White LTG.

 

[Kevlar]

I think we can check GTAB on the list now. Faster than I imagined too!

His loneliness and need to control something is incredible. He must of been a total push over as a boyfriend. 2017 will be the year that DSP financially dies on the internet. When you try to censor a twitch chat (especially subbed users that donate bits to you) don't expect to build a big following or have a good reputation. He babies the chat way too much.

 

[Keystone]

I think we can check GTAB on the list now. Faster than I imagined too!

He needs to buy a LTG t-shirt before being allowed to use that phrase.
LTG claim you are not allowed to use GTAB unless you by his merchandisers.

"Get that ass bugged, son *SNORT*"

 

[James Smith]

Let's Players also exploit these recent releases precisely because this is the time to make money on them, right after they come out or, if you can get a deal, even before it. This opportunity to make money on an intellectual property is at the very core of what copyright protection is.

Not originally. Originally copyright protection was to provide a limited time monopoly as an incentive for academics (history, math, technology, etc) to publish their work so other people could use it after the monopoly period was over. It has been bastardized. It was designed as a means to an end: so people could in a few years have access to publications and unlimited rights to copy and derive from because this advances the public interests.

Now it takes over a century for this to happen and the amount of time is constantly being increased by legislators who don't understand this because those who have private interests instead of public interests in mind convince them it's to give businesses a way to make money off cartoons.

 

[JackDavis]

I think we're kind of jumping the gun guys by saying the strike was called off or invalid. We don't know yet. Since when has Phil been honest about anything? Let's wait a bit before making "I told ya so!" Posts.

Seriously, you guys act like Phil skeptics but all it takes is Phil saying "oh the strikes are invalid, great news!" and it becomes the truth.
The reality is Phil would rather climb a tree to lie than stay on the ground and tell the truth. Chances are that he got an email from somebody with no authority saying "Oh that doesn't seem right, I will look into it for you." and he wants to win so bad that it becomes "GREAT NEWS. THE STRIKES ARENT RIGHT AND ARE IN THE PROCESS OF BEING REMOVED".
A bunch of people got manual strikes from Atlus, they were not removed, why is our tubby friend so special that Atlus would change their mind just for him? Now if Atlus has been removing these strikes and I don't know about it then this changes, but as of right now I bet you that the strikes will stick.

I strongly disagree with Metokur and Phil himself. Phil doesn't have bad luck. He appears to be one of the luckiest people I know. In the sense that it seems almost supernatural at times how often he bumbles blindly across the jaws of doom. So its no surprise yet again he's in the clear and yet again detractors have taken the bait. This is like the 1000th time he's boohooed this woe is me terrible news...wait jk Im just fine bullshit. Don't make yourself look like a fool by getting suckered into this schtick. He's kinda like the herpes of the LPer community so personally I wouldn't call it for his 'business' until he's under an overpass filling out a job application instead of finishing another vlawg about how he's doomed to dine on lobsters and triple meatlovers pizzas and buy brand new cars.

100% agree. It wasn't bad luck that Leanna left him, it was good luck he was able to get a decent looking broad to be with him for 5 years. It wasn't bad luck Machinima dropped him, he was lucky to stay with them for so long and have them put up with all his shit for 6 months. He caused his "bad luck" by sending them a shitty email. Every bit of "bad luck" that has fallen upon him was either a bit of good luck that has passed, or caused directly by him doing something shitty. Everybody falls for his "I'm so unlucky" shit because he complains about every single thing like it was the end of the world. His narrative is "UGHHHH I just want to play games, and have fun!" No shit? Same here! WE ALL DO. Except most of us have to work 40-60 hours a week before we can even think of that.