The DMCA Silencing of Games Criticism

Recently a video gaming journalist, critic and YouTuber whom I have a great amount of respect for, Jim Sterling, was hit with a DMCA claim on one of his videos of a series called ‘Best of Steam Greenlight Trailers’ in which Sterling takes a look at and comments on a trailer for a video game which is currently attempting to earn its place on the PC video game distribution platform, Steam’s store. The video in particular was focusing on the game ‘Skate Man’, a Vietnamese-made game where there are dogs on skateboards. You might notice that I’ve provided a significant lack of detail about the game…that’s due to the fact that a few hours after the developer of Skate Man DMCA-claimed Sterling’s video; he removed the game from Steam Greenlight, Steam’s system where users vote for which games they would like to see on Steam’s store, and removed any trace of the game that was available. So why is this such a big deal you may ask? Well, let me show you.

Jim Sterling: One of many YouTubers to be affected by the abuse of the DMCA Youtube system.
Jim Sterling: One of many YouTubers to be affected by the abuse of the DMCA Youtube system.

If you’re unfamiliar with the DMCA system, it basically allows digital creators of pieces of media work to take down a video if they feel it breaches the copyright of their product. When you hear about it at first, it sounds like a brilliant law to have in place: It stops people from stealing other people’s art, videos and other pieces of media over the internet, great! In practice however, it’s a bit of a different story, specifically with however certain games developers, both indie and AAA, have exploited the system to essentially silence any criticism of their games.

Back to the point of Sterling’s Skate Man video which was taken down: In the video, Sterling panned the trailer for the fact that “it was more or less a PowerPoint slideshow of a trailer” and that the game itself “wasn’t exactly praiseworthy”. A few days after the video was put up though, the developer of the game, Digpex Games, used the DMCA system to get the video taken down before removing any trace of the game and its existence.

This misuse of the DMCA system by games developers on YouTube to silence criticism was also the main point of one of the biggest controversial issues of any YouTuber in 2013: The incident of when John ‘TotalBiscuit’ Bain, a YouTuber with currently over 2 million subscribers, had a video in his first impressions series, ‘WTF is…’, on the game “Day One Garry’s Incident” taken down by the developer, Wild Games Studios, after heavy, negative criticism was made of the game from Bain’s side. Their primary reasoning for this DMCA takedown was that Bain apparently did not have permission to make any advertising revenue on any videos involving their game according to the developer themselves. However, a while before the takedown took place, a question was asked to the developers on the game’s Steam forums about the game as to whether YouTubers were allowed to make any sort of content about the game and if they were allowed  in which the CEO replied, and I quote: “Sure! You can make a YouTube of our game!”

John 'TotalBiscuit' Bain's video's DMCA claim as fans would have saw it.
John ‘TotalBiscuit’ Bain’s video’s DMCA claim as fans would have saw it.

So you may be thinking “Okay, so he had permission to make a video about the game, but I don’t see why he was allowed to make money off of the video?” Well, Bain, during his video explaining the incident to his YouTube audience, stated that in his email to the developer about coverage of the game: “The permission to monetise this video is strongly implied.” Yet, the company’s CEO provided a Steam Key for the game to Bain with this strong implication of monetising the content and hence, seemingly accepting this condition. Also, many other gameplay videos of the game were uploaded and monetised off of and yet, Bain’s video was the only one to be taken down. So how is it then that Bain isn’t allowed to make advertising revenue off of his video, but everyone else is? Well, Bain’s video was the top viewed and rated video out of them all and was also the most critical of the game which could have negatively affected sales.

So extremely clear permission was given on a public forum to be able to make YouTube-based video content on the game and, according to Bain himself, it was strongly implied to the developers that Bain was going to monetise the video content he was going to create on the game and yet, Bain did not have permission to make advertising revenue on the game? I’m pretty sure these facts, along with the fact that two days after Bain exposed these facts that the game’s developer publically apologised for the incident and removed the strike on the video, proves that the studio was really just using the DMCA claim to stop Bain’s criticism of the game reaching their potential audience(s) in order to try and get as many people as possible to buy the game, which is highly illegal I might add.

So what has YouTube or more specifically, Google done about this, considering there have been many other cases of this sort of claim happening to not just Sterling (which I might add has had this sort of incident happen to him 4 times now) and Bain but to many other prominent YouTubers as well? Absolutely nothing. That’s right, games developers are illegally manipulating this system to silence criticism in order to try and gain a few more game sales from sadly uninformed gamers and Google have done nothing about this. Why, you may ask? The possible legal implications that could come with trying to oppose some of these incidents from some of the much bigger claimants? The possible bad reputation for Google? Nobody apart from those head honchos at Google/YouTube knows. But one thing’s for sure. Google need to do something about it before an incident similar to all those previously mentioned happens and spreads like wildfire to somewhere big like the main media outside of the gaming niche.

(Left to Right) AngryJoe, Boogie2988 and Nerd3: Three Youtubers who covered the TotalBiscuit Day One Garry's Incident situation.
(Left to Right) AngryJoe, Boogie2988 and Nerd3: Three Youtubers who covered the TotalBiscuit Day One Garry’s Incident situation.

YouTube is getting bigger and bigger everyday with the gaming section of YouTube leading the charge of this constant popularity increase and one of these days, an incident like the Day One Garry’s Incident is going to happen again, maybe to TotalBiscuit once again or maybe to a new rising gaming critic we just don’t know yet. Considering how quickly that incident spread with some of the biggest gaming YouTubers like AngryJoe, Nerd3 and Boogie2988 covering the incident, what will happen when YouTube gets to the point where the line between YouTube’s niche form of entertainment and the main form of entertainment in general is non-existence and something like this happens then? It won’t be just YouTubers and gaming news websites that will be covering it, that, I can personally guarantee.

3 thoughts on “The DMCA Silencing of Games Criticism

  1. YouTube and Google have limited control over the DMCA process. In particular, in order to qualify for Safe Harbor protections, YouTube must have a limited role in evaluating DMCA claims. In particular, 17 USC s. 512 gives service providers Safe Harbor protection for “Information residing on systems or networks at the direction of users”. If YouTube were to take a more active role in evaluating DMCA claims, it would no longer be fair to claim that the videos which remained available were at the ‘direction of users’; instead, YouTube itself would be making these decisions. (http://digital-law-online.info/lpdi1.0/treatise33.html)

    It has already been determined in court that some video service providers which take an active role in reviewing their content are more culpable for copyright violations — that is, by writing comments like “Don’t ask, don’t tell” in response to user questions, that they are abandoning their Safe Harbor protections (https://gigaom.com/2013/09/20/music-labels-can-press-vimeo-on-copyright-claims-judge-denies-safe-harbor/).

    The DMCA cuts both ways: it gives creators powerful tools to protect the copyright of their works online, but it also gives anyone with a grudge the ability to claim, under the threat of perjury, that a copyright is being violated, and service providers are not in a position to meaningfully interpret the copyright status of a work without serious risk.

    That said, the DMCA also gives creators the ability to challenge this: A creator who receives a DMCA claim can appeal that claim, stating that they don’t feel the claim is valid. The counter notification requires that the original claimant must show “has the option of seeking resolution in the courts and obtaining an injunction that will keep the work offline”; absent that, the work will continue to be available. This means that the creators you’ve mentioned could (if they felt they had used the content under the rights they were granted) make a counter-claim, and force the copyright holders to go to court to prove that they had violated the copyright. (Indeed, “in extreme cases where the notice was false and filed knowingly so, the subscriber/user can file suit against the filer for damages including attorney’s fees and court costs”). (http://brainz.org/dmca-takedown-101/)

    So, I’d put the question back to you: If the creators of these videos believe that they have rights granted in order to make them, did they file a counter-claim? If not, why not?

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    1. Well, yes. All but one scenario has has had the YouTuber file a counterclaim due to the fact that they know that these companies will never take these sort of cases to court (and never have before) as they know the YouTuber will win because they aren’t breaking any copyright laws and as I said in the article, are just using the system to silence any criticism of their game(s).

      The only acception to this that I can find would the the SEGA copyright strikes that happened back in 2011/12. Basically SEGA used this system in strike a whole variety of channels on having videos on the game Shining Force 3…and the worst thing is? Most of these videos didn’t even contain gameplay of the game: Blogs which discussed the game, music from the game were also apart of this list of videos which were DMCA claimed by SEGA. The most likely reason they did it? To get higher search ranking on their new game: Shining Ark which, once again, is a highly illegal act.

      There were at least 17 channels affected by these claims (possibly more unconfirmed ones) including TotalBiscuit who had a video of a boss battle from Shining Force 3 on his channel. He made a counterclaim against the strike back then and made the incident insanely popular, causing quite the hate wave to head in SEGA’s direction and whilst he did get the strike removed, he did not reupload the Shining Force video. The other much smaller channels though, whilst some of them only had one or two videos resulting in just two strikes, had 3 or more videos on the game and as a result, had more than 3 strikes on their channels, causing their channels to be immediately shut down by YouTube’s automatic system and due to this, they couldn’t make a counterclaim with the proper system due to the fact that their channel was banned. Every single video apart from TotalBiscuit’s have the copyright claims on them and some of those channels are still banned to this day so why didn’t they counterclaim? Well, many of them probably didn’t really understand the system and didn’t know that they were easily in their rights to counterclaim, others didn’t have the support of a YouTube network like TotalBiscuit did so even if they did counterclaim, that wouldn’t have helped against such a massive company as SEGA.

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