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

[AnOminous]

I'm just posting this as a placeholder since the topic comes up a fair amount and sometimes threads go off on tangents about it.

In particular, just to get it started, there's a lot of salt about Atlus issuing DMCA strikes against Let's Players because of gameplay and cutscenes. Do you think Atlus or the LPers are right?

Also, to continue a tangent I was on with @SoapQueen1 on that thread:

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.

Here, you're talking about the purpose of copyright, which the Framers felt important enough to include in the Constitution.

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The argument is that the words "limited times" have been essentially rendered a nullity by simply continually extending the copyright term, an argument rejected (I believe incorrectly) by the Supreme Court in Eldred v. Ashcroft. The court found that so long as the term was "limited" at all, it comported with the Constitution. This is ridiculous, because by this logic, Congress could just pass a law extending the copyright term to a trillion years.

However, the U.S. Constitution wasn't the source of copyright as we currently know it. Arguably, it originated shortly after the first printing presses and was invented so the King could have the power to reward favored printers with the right to print the Bible. Additionally, it was to put limits on what was allowed to be printed at all.

The origins of copyright pretty much suck.

That's actually why the Framers thought it was important enough to put freedom of the press and limits on copyright directly into the Constitution itself. Back then, in Merrie Olde England, shutting up critics was pretty simple. You just went and took their press or sent a mob to smash it up.

 

[SwattedKat]

Ultimately I think both sides have their legitimacy.

Altus has the rights to preserve and protect their vested interests, especially their best-selling game of all time. The Let's Play community has their niche and streamers provide countless hours of entertainment to millions of fans. I know that Atlus has some crazy restrictions on streaming, their beliefs may be outdated but at the end of the day they answer to their shareholders, not streamers and that's understandable. Bottom line for business is money.

There needs to be compromise on both ends. Criticism, walkthroughs, reviews, etc. are all fine forms of fair use. The idea that a transformative work can be me attempting to figure out a menu or mechanic while shitting all over devs as commentary is counter-productive and helps nobody. Game Publishers need to embrace streaming for what it is, a mostly untapped resource that can be used to promote and increase anticipation for their titles. Let's Players need to calm their bed and understand that paying 60 dollars for a digital license is not equivalent to creating a work that takes thousands of man hours and millions of dollars to complete. Have some respect for the title. You can certainly criticize without slandering or completely dumping on something.

 

[JustStopDude]

I think there is a massive disconnect between actual content producers and lazy LPers.

Spam downloading a fast as fuck run play through, with minimal commentary is not trans-formative enough to stand up in any legal test. We see this in print, film, and TV mediums. The video game industry is not magically different.

From a business perspective, I see no real strong point in allowing people to monetize my content. I would have no issue with LPer's creating videos that are not directly monetized from my work. Sell T-shirts and shit.

This whole issue goes away if LPers would stop trying to make this a fucking business. Doing a crappy voice over on the fly is not a business model.

 

[The Littlest Shitlord]

Atlus is completely in the wrong here. If I made a video of myself playing Monopoly, or Dungeons and Dragons, or nearly any other sort of game, it would perfectly obvious that I would be allowed to publish it. If I made a video of myself using any other sort of computer software, such as Microsoft Office, or Photoshop, it would be perfectly obvious that I would be allowed to publish it. The only reason game software is treated any differently is because video game publishers have no morals and no ethics and are consequently willing to use legal thuggery to bully people much weaker than themselves, and because said game publishers have already completely suborned all other outlets for getting an honest preview of their product prior to buying it and are desperate to quash the one form of video game related media that they do not control so they can fatten their profits by selling us a pig in a poke. If I were a billionaire, I would gladly fund a legal challenge to the current state of affairs, but alas, I am not.

If I could afford it, I would even fund a legal challenge by DSP himself if he had a suitably strong case. I don't care if LPers are "lazy", "greedy", or anything else. I'm just sick and tired of having my rights to do with my own property as I please relentlessly gobbled up by these corrupt assholes. I am sick and tired of rule by corporations. I am sick and tired of digital serfdom, where everything important is "owned" by one corporate master or another and nothing can be created outside the confines of a system where risk-aversion, political correctness, and catering to the cruel whims of the Chinese government suck away creativity. And I hope Atlus burns.

 

[JustStopDude]

I'm just sick and tired of having my rights to do with my own property as I please relentlessly gobbled up by these corrupt assholes. I am sick and tired of rule by corporations. I am sick and tired of digital serfdom, where everything important is "owned" by one corporate master or another and nothing can be created outside the confines of a system where risk-aversion, political correctness, and catering to the cruel whims of the Chinese government suck away creativity. And I hope Atlus burns.

What specific rights do you think you have when you purchase a game?

If I purchase a movie, I cannot just rebroadcast said movie onto youtube, with a commentary track, and monetize that video.

Video games are no different. You don't have the right to take someone else's work, do almost nothing to it, and make money off of it.

This whole LP issue goes away if people stopped trying to make money off of LP's.

 

[AnOminous]

What specific rights do you think you have when you purchase a game?

If I purchase a movie, I cannot just rebroadcast said movie onto youtube, with a commentary track, and monetize that video.

Video games are no different. You don't have the right to take someone else's work, do almost nothing to it, and make money off of it.

This whole LP issue goes away if people stopped trying to make money off of LP's.

There would still be assholes who would make questionable or outright bogus DMCA strikes for clearly fair uses, but most of what I have seen from Atlus, whether it's intelligent or not to do it, have been things with very weak fair use justifications, like DSP's.

However, it's true that if you're not actually making money from LPs, it's a lot easier to make the argument that you aren't impacting market value for the original work.

Once you're getting a paycheck to do something, you're playing with the big boys and they're a lot bigger than you are if you're an LPer. They have a lot better justification, legal and otherwise, for holding you to the letter of the big boy rules.

Fan art in general is in this boat. A big corporation usually doesn't care if you're making fan art of copyrighted characters and putting it on your dA or tumblr or whatever. Once you start monetizing content, they're a lot more likely to take an interest. Another is derivative products like plushies. There are people who charge $500 and upwards for custom plushies made individually. They're usually left alone. However, if you took your design, sent it to a sweatshop in China, and then started selling on the open market, you'd get immediately crucified, because then you are actually screwing their licensees. Things like that are not generally fair use even if there are some transformative elements.

DSP's video was barely transformative at all and mostly consisted of the specific things Atlus didn't want distributed. He also split his video up into these shitty little portions to spam them and, at least in his way of thinking, increase his profit on each one. That makes each individual video a separate derivative work, though, so if that single video contains nothing or almost nothing but non-fair-use material, it isn't going to be judged in context as it would be if it were just a minute long segment of some much longer video.

I don't generally agree with the "LPers are parasites" meme or that there's anything wrong with them making money from what they do so long as what they do is legal, or even if it arguably isn't, if the copyright holder is chill about it. DSP represents the very worst of the breed, though, and I don't think calling him specifically a parasite is at all wrong.

 

[The Littlest Shitlord]

What specific rights do you think you have when you purchase a game?

If I purchase a movie, I cannot just rebroadcast said movie onto youtube, with a commentary track, and monetize that video.

Video games are no different. You don't have the right to take someone else's work, do almost nothing to it, and make money off of it.

This whole LP issue goes away if people stopped trying to make money off of LP's.

I should be able to do anything that doesn't prevent other people from needing to acquire the product to gain the benefit of it. If I rebroadcast a movie, other people can view my broadcast to gain the experience of watching the movie without having to buy it. But games are not movies. Watching somebody play a game is not the same as playing it yourself. Games don't need the same protections that movies get because they are a fundamentally different medium that is used in a different way. And in assigning restrictions, society should err on the side of the freedom of the hundreds of millions of ordinary people rather than the narrow monetary interests of a single entity. It's our society, not the game makers'. And frankly, if watching a game is as good or better than actually playing it, it wasn't much of a game to begin with, and it deserves to lose sales. If the game makers want movie protections, then let them make movies instead.

 

[JustStopDude]

I should be able to do anything that doesn't prevent other people from needing to acquire the product to gain the benefit of it.

So...pretty much no cut scenes, no game play, effectively no complete videos right?

I mean that is effectively your first sentence means that LP's should not be allowed at all.

And in assigning restrictions, society should err on the side of the freedom of the hundreds of millions of ordinary people rather than the narrow monetary interests of a single entity.

We aren't talking about the rights of millions of people. We are talking about an incredibly small group of people that believe they have the right to monetize the work of others.

If LPer's do not monetize the videos, then more likely then not, no one is going to fuck with them. If you take away the game, what does an LPer have? The game, and the work performed by the creators, is the entire show.

And we aren't talking about people using old games, far out of circulation. We are talking about people cutting shitty, lazy LP's for fresh on the market games. These are people who are trying to cut in on the action of other people's work. Its no different than people trying to monetize illegal streaming feeds to sporting events.

This is like when an LPer acts like they have monetizing rights to the music in a video game...no. Fucking no. Music rights have been hashed out for decades. Digital rights are hashed out. The only reason that LPers don't get sued in mass is because its cheaper and easier to either just blanket takedown accounts or redirect the money back to the IP holders.

I honestly think your perspective would change overnight if your intellectual property that you own the rights to, was being monetized without your authorization.

 

[JustStopDude]

I don't generally agree with the "LPers are parasites" meme or that there's anything wrong with them making money from what they do so long as what they do is legal, or even if it arguably isn't, if the copyright holder is chill about it. DSP represents the very worst of the breed, though, and I don't think calling him specifically a parasite is at all wrong.

Yeah... I realize now that I am coming off as someone that does not believe LP's have a place or that all LP'ers are lazy parasites. People that actually go into a history of a game, get permission to do the LP, monetize their work other than directly from the videos...I got no problem at all with these folks.

The people spamming AAA titles within hours of them going on sale, all doing their best "angry" streamer beg a thon...that shit...its lazy bullshit.

 

[The Littlest Shitlord]

So...pretty much no cut scenes, no game play, effectively no complete videos right?

I mean that is effectively your first sentence means that LP's should not be allowed at all.

I don't know how you got that from what I said. The benefit from playing a game is the interactive experience of playing, and that's completely missing from any LP.

We aren't talking about the rights of millions of people. We are talking about an incredibly small group of people that believe they have the right to monetize the work of others.

An incredibly small number of people actually own a publishing company, but we extend the right of freedom of the press to all Americans. The fact that many people do not choose to take advantage of their rights does not deprive them of those rights. Tens of millions of people could choose to be LPers if they wanted to, and I support their freedom to do that.

If LPer's do not monetize the videos, then more likely then not, no one is going to fuck with them. If you take away the game, what does an LPer have? The game, and the work performed by the creators, is the entire show.
And we aren't talking about people using old games, far out of circulation. We are talking about people cutting shitty, lazy LP's for fresh on the market games. These are people who are trying to cut in on the action of other people's work.

If you think that you have or ought to have a right to demand a cut of absolutely every last penny generated by your work, you're going to be very disappointed. Movies for example sustain entire industries without getting a cut of it: movie reviews, Hollywood gossip mags, film studies courses. Just because someone is making money off your work doesn't mean that you are entitled to some of it. And this is actually a valuable service of LPs: they help viewers decide whether or not a game is worth buying, like a good review would. And that service is never more valuable than when it is applied to newly released games.

Its no different than people trying to monetize illegal streaming feeds to sporting events

It's completely different. Sporting events are made to be passively watched. Video games are made to be actively played. The passive viewing experience can be stolen by a YouTube video. The active playing experience cannot.

This is like when an LPer acts like they have monetizing rights to the music in a video game...no. Fucking no. Music rights have been hashed out for decades. Digital rights are hashed out. The only reason that LPers don't get sued in mass is because its cheaper and easier to either just blanket takedown accounts or redirect the money back to the IP holders

No, digital rights aren't hashed out, and even if they were, any and all intellectual property regimes are subject to critique and other pushback. The industry is constantly changing, and old arrangements never stop being subject to challenge. And that is the way it should be.

I honestly think your perspective would change overnight if your intellectual property that you own the rights to, was being monetized without your authorization.

I honestly think that you're wrong. One day I will be making money from intellectual property, and I formulate my moral positions on intellectual property with that in mind.

 

[JustStopDude]

The moment your IP is stolen, your perspective is going to change completely. That is a given. I have seen your perspective countless times in my industry.

You cannot be seriously comparing movie reviews with LP's. Furthermore, universities have to get distribution rights prior to using the films in course work or they have to prove they are not directly profiting from showing said films.

They secure permission to use those films.

Not a single LPer even attempts to secure permission. They demand the right to directly profit from the work of others. It's not good advertisement. They don't respect the wishes of IP holders and they don't respect the law. They just assume they are in the right.

Again, when it's your content getting stolen, your perspective will change completely. I have have had my shit stolen (industrial automation coding) and I have participated in lawsuits over it.

None of the legal arguments involving LP's is new. It's the same bullshit argument that shitty Chinese companies use to copy products from overseas.

 

[JustStopDude]

An incredibly small number of people actually own a publishing company, but we extend the right of freedom of the press to all Americans. The fact that many people do not choose to take advantage of their rights does not deprive them of those rights. Tens of millions of people could choose to be LPers if they wanted to, and I support their freedom to do that.

Why is it that every American that mentions the Bill of Rights, either online or in person, has clearly never read the damn thing?

In no way shape or form does the free speech Amendment give the right to American citizens to violate copy right law nor does it hold weight outside of the US. It protects you from your government sanctioning your speech....not private entities. This is why people in the states get fired all the time for shitty behavior despite your free speech Amendment.

Do you folks honestly think we have to follow that silly thing here in the rest of the world?

 

[AnOminous]

Why is it that every American that mentions the Bill of Rights, either online or in person, has clearly never read the damn thing?

In no way shape or form does the free speech Amendment give the right to American citizens to violate copy right law nor does it hold weight outside of the US. It protects you from your government sanctioning your speech....not private entities. This is why people in the states get fired all the time for shitty behavior despite your free speech Amendment.

The fair use factors were explicitly crafted to recognize that some forms of appropriation of intellectual property by others are, in fact, protected under the First Amendment. Otherwise, the First Amendment could be explicitly invoked in copyright cases where the rights collide.

 

[Un Platano]

I don't know how you got that from what I said. The benefit from playing a game is the interactive experience of playing, and that's completely missing from any LP.

Except that's not at all true. Just look at walking simulators, their entire premise is that the player doesn't interact with the game. Far more is put into a game than just the gameplay, like music and story, and those can be taken in wholly by watching an LP. Hell, there are plenty of games where the gameplay is the worst part of all, and LPs are doing a service by only showing me the parts I want to see without having to buy it a and slog through the gameplay.

 

[AnOminous]

Except that's not at all true. Just look at walking simulators, their entire premise is that the player doesn't interact with the game. Far more is put into a game than just the gameplay, like music and story, and those can be taken in wholly by watching an LP. Hell, there are plenty of games where the gameplay is the worst part of all, and LPs are doing a service by only showing me the parts I want to see without having to buy it a and slog through the gameplay.

That's the fourth and arguably most important factor of fair use. Does it impact the market for the original? If people actually watch the video instead of buying the game, you're going to get fucked in court on a fair use analysis.

 

[The Littlest Shitlord]

The moment your IP is stolen, your perspective is going to change completely. That is a given. I have seen your perspective countless times in my industry.

I know myself far better than you do, which is not at all. Just stop trying to predict what I'll think or feel or do, you're no good at it.

You cannot be seriously comparing movie reviews with LP's. Furthermore, universities have to get distribution rights prior to using the films in course work or they have to prove they are not directly profiting from showing said films.

I am in fact comparing movie reviews and LPs. The movie review does not convey the full experience of a movie; neither does a LP convey the full experience of playing a game. But both of them are valuable for determining whether or not to purchase the source work.

When I talk about film courses not enriching the makers of the movies, I mean that they don't actually get any more from the course than the license fees for a single showing of their work. They don't get a share of tuition, or a share of the grant money doled out to educational institutions, or any of that. Just like how they don't get anything more from a movie reviewer than the cost of a single ticket. Along the same lines, LPers shouldn't have to pay any more to the game maker than the cost of a single copy of the game.

They secure permission to use those films.

Not a single LPer even attempts to secure permission. They demand the right to directly profit from the work of others. It's not good advertisement. They don't respect the wishes of IP holders and they don't respect the law. They just assume they are in the right.

Again, when it's your content getting stolen, your perspective will change completely. I have have had my shit stolen (industrial automation coding) and I have participated in lawsuits over it.

None of the legal arguments involving LP's is new. It's the same bullshit argument that shitty Chinese companies use to copy products from overseas.

You keep saying that LPs are illegal. Do you have a relevant court decision you can share with us? Because I am not aware of any court case where the legality of LPs has even come up. Because if you are just assuming that a game has the exact same copyright protections as a movie (a completely different medium), that's not a safe assumption to make.

Why is it that every American that mentions the Bill of Rights, either online or in person, has clearly never read the damn thing?

In no way shape or form does the free speech Amendment give the right to American citizens to violate copy right law nor does it hold weight outside of the US. It protects you from your government sanctioning your speech....not private entities. This is why people in the states get fired all the time for shitty behavior despite your free speech Amendment.

Do you folks honestly think we have to follow that silly thing here in the rest of the world?

You misunderstand. I was merely pointing out that rights are given to everyone who could use them rather than just everyone who does use them. Which is why your assertion that LPers are a tiny minority is completely irrelevant.

 

[Alec Benson Leary]

That's the fourth and arguably most important factor of fair use. Does it impact the market for the original? If people actually watch the video instead of buying the game, you're going to get fucked in court on a fair use analysis.

There are games I've considered buying, but first decided to watch an LP. Sometimes I would later buy the game because the LP inspired me to see it was a funner game than I had initially thought. Sometimes... I watched the video, now I'm good. There absolutely is merit to the idea that LPs can affect the primary market.

 

[AnOminous]

There are games I've considered buying, but first decided to watch an LP. Sometimes I would later buy the game because the LP inspired me to see it was a funner game than I had initially thought. Sometimes... I watched the video, now I'm good. There absolutely is merit to the idea that LPs can affect the primary market.

That's not because of any infringement, but because it was a negative review. Copyright isn't a license to shut down negative reviews, although it is sometimes abused for that purpose. Also, the effect of criticism is not relevant to the fourth factor. The impact on the market must be related to the substantiality of the use and the extent to which that substantiality allows the allegedly infringing work to substitute for the original.

 

[JustStopDude]

I am in fact comparing movie reviews and LPs. The movie review does not convey the full experience of a movie; neither does a LP convey the full experience of playing a game. But both of them are valuable for determining whether or not to purchase the source work.

An LP basically reveals the entire content of a story line of a game.

Also, at no time have I said LP's are illegal. What I am saying is that now wannabe internet YouTube celebrity LPer is ever going to win in court.

 

[Alec Benson Leary]

That's not because of any infringement, but because it was a negative review. Copyright isn't a license to shut down negative reviews, although it is sometimes abused for that purpose. Also, the effect of criticism is not relevant to the fourth factor. The impact on the market must be related to the substantiality of the use and the extent to which that substantiality allows the allegedly infringing work to substitute for the original.

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