Intellectual Property - For sperging about copyright, trademark, patent, etc.

[AnOminous]

Fair point, though I feel like spending a number of hours watching the entirety of a game's playthrough stretches the definition of "review".

In those kinds of cases, the other factors are more likely to play a role.

• the purpose and character of your use
• the nature of the copyrighted work
• the amount and substantiality of the portion taken, and
• the effect of the use upon the potential market.

I'm pretty sure these factors have never been explicitly analyzed in this context, but the video of gameplay isn't actual gameplay. It's something created using software with input from the player. It isn't quite the same as creating machinima with Gmod or SFM, which are explicitly created to do exactly that, but it isn't exactly the same as playing the game.

That content includes animation and gameplay features, but it isn't like it includes the actual 3D models used by the game itself, the code of the software that generates it, etc. It's all somewhat transformed. A game isn't the same as a movie, except with some possible exceptions like pre-scripted or pre-rendered cutscenes.

For these reasons, the third factor is also tricky. It's hard to argue a full hours-long playthrough is not substantial at all. It's clearly substantial

What Atlus is getting at here is in the context of what the game is, and that it has a storyline, when it's spoiled by using actual content from the game like cutscenes, that use is not only not very transformative, it's also a substantial use, and spoiling the storyline using content from it is a substantial use that effects the market value of the product because of the substantiality of the use.

By comparison, if you watch an ordinary playthrough and decide you don't want the game because it looks like it sucks, that isn't as relevant to that fourth factor, although it might still fail to be fair use by not being transformative enough.

The theoretical underpinnings of this are probably in labor theory of property. IP law is supposed to protect creators who put in some effort by giving them an exclusive license to profit from it for a limited period of time (as much of a mockery as copyright term extensions have made of that). So a subsequent derivative work is more likely to be found a fair use in proportion to how much labor has been put into it, i.e. how much extra value has been created. To the extent the derivative use instead substitutes for the original while adding little new, it's a parasitic and thus less justifiable use.

The problem with LPs and, somewhat similarly, "reviews" where someone just babbles over the entirety of the movie, is they're using a lot more than just the few illustrative samples a traditional review uses, and people like this have gotten used to getting away with this kind of appropriation, even though it's highly dubious as fair use. This is largely because IP holders mostly view this kind of use as benefiting them. However, when they don't, everyone acts like they're giant bullying ogres when they assert rights they almost certainly have.

(And to be frank, sometimes they actually are being giant bullying ogres. But this is nowhere near always being the case.)

 

[Un Platano]

Not one case decision has been made against the right to make LPs, but nor has one been made for it. Citing courts is therefore irrelevant for the time being because of the lack of decisions made there. It's a huge legal grey area in US law because of that. It will probably remain that way for a long time because of that condition of setting precedence and not preemptiveness. There's no way people like DSP have the time, money, or resources available to take Atlus to court over a copyright dispute, and that's why the issue has never been solved. I could see more stringent guidelines being made for either or both sides of the debate if something like this is ever discussed in court, but unless the son of a billionaire gets a DMCA strike on an LP, it'll never happen. (That or the ACLU becomes autistic enough to help Lets Players too)

 

[AnOminous]

Not one case decision has been made against the right to make LPs, but nor has one been made for it. Citing courts is therefore irrelevant for the time being because of the lack of decisions made there.

It would be a fairly remarkable finding that hours of video directly derivative of someone else's copyrighted material is fair use. It would be a unique and very original decision. That is to say, unprecedented. Infringement has been found for far less use.

 

[Un Platano]

It would be a fairly remarkable finding that hours of video directly derivative of someone else's copyrighted material is fair use. It would be a unique and very original decision. That is to say, unprecedented. Infringement has been found for far less use.

Longplays with little to no commentary could quite easily be found for infringement. but it's not always going to be that simple. If I made highly edited videos or if blathered on for 14 hours straight during my Lets Play, would it be considered additive enough to justify fair use?
It's an issue that hasn't existed in the past because of the nature of Youtube as media distribution. If I made a scifi movie where I stole clips from Star Wars to save on filming, it's fairly easy to conclude that I am violating fair use, and no one would argue that it's okay even if the clips were only a few seconds long.
But that's not comparable to the situation that LPs are in. Something considered additive and under fair use then and now would be using copyrighted material as a figurative or literal background to what you are discussing. But those would never have stretched on for dozens of hours unlike an LP does now, begging the question of whether those standards can be applied to use of copyrighted material whether it's 5 minutes or 5 hours. If they don't, an important question still hasn't been answered in where you draw the line.
Another thing difficult to determine with an LP is intent. In the Star Wars example, it's clearly made with malintent, and that's why it's such a clear-cut violation. But in law, unclear intents make for very hard decisions, and that's another reason why LPs (silent longplays aside) are so ambiguous.

 

[melty]

Semi related, but this one product my company sells on Amazon recently got banned from us being able to sell it, because of "intellectual property infringement."
I have never seen that before on Amazon. It's a legit product, we buy from them directly, and usually brands have to do a lot of test buys and prove a product doesn't match to get it taken down by Amazon. It's very annoying for private labellers.
I'm not sure how they can claim a legitimate product infringes on their rights by us selling it. Usually the brands do other tactics which are also empty threats (scary sounding letters with legal jargon usually)

 

[namvata]

Necrobumping the thread to say that IP inherently necessitates the violation of actual physical property rights (and the NAP) and thus could not possibly be considered a legitimate property right. You cannot have a property right in an idea as ideas are not a scarce physical resource with exclusionary ownership properties as a tangible good is. IP is anti competition, anti market, anti liberty, pro censorship, and pro monopoly. It is a form of corporate welfare at best. At worst it is an affront to human progress.

A world where IP is taken to it's logical extreme would look something like: "FIRE©®™, WATER©®™, SHELTER©®™, THE WHEEL©®™"

 

[Seafarer]

I think I heard someone mention the idea that the right to an IP should be “the creators lifetime + 10 years” and I want to know what other farmers think about that idea.

 

[byuu]

I think I heard someone mention the idea that the right to an IP should be “the creators lifetime + 10 years” and I want to know what other farmers think about that idea.

If a creator makes something really good why allow him to monetize it for his whole life instead of motivating him to create more good shit instead?

 

[namvata]

I think I heard someone mention the idea that the right to an IP should be “the creators lifetime + 10 years” and I want to know what other farmers think about that idea.

I think its fucking stupid and IP shouldn't exist to begin with. It's nothing more than a state enforced monopoly grant on an idea and it's been this way since the first IP/patent law, which was called "The Statute of Monopolies"

At least they were honest enough to call it a monopoly back then

If a creator makes something really good why allow him to monetize it for his whole life instead of motivating him to create more good shit instead?

And why should that creator be guaranteed an automatic monopoly over a character or concept? I should be able to make based and redpilled Disney knockoffs and COD games that aren't CIA propaganda!