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The balancing act of copyright enforcement for game developers

Game lawyer Zachary Strebeck takes a look at the question of whether or not a copyright holder should enforce their copyrights, including a look at the potential fan backlash it could cause.

Enforcing your copyright on the Internet

Google’s systems have made it easy for an IP owner to police their copyrights on YouTube, through the Content ID system and online DMCA takedowns. This ease of enforcement, however, brings up questions not about whether one COULD take something down, but whether one SHOULD do it.

In this article, I’ll take a look at some of the most important considerations that a developer should make before instituting takedown procedures.

Missing the forest for the trees

We live in a world of grey areas, both from a legal and a business perspective. While a copyright owner often has a legal right to do something, it may not always be the best move to make, business-wise.

When that game or personality is on the business-end of a legal maneuver, you can bet that their audience of rabid fans will hear about it.

This is mainly because of the Internet’s ease of disseminating information. The vast interconnectedness that the Internet offers has allowed geographically disparate communities to spring up around very specific things, such as individual games or personalities. When that game or personality is on the business-end of a legal maneuver, you can bet that their audience of rabid fans will hear about it.

We all know what happens when those fans are motivated enough to put the word out. There have been countless examples of what can come from angering that fanbase. See, for example, the recent case of a fan who was sued by The Pokemon Company for holding an unlicensed Pokemon-themed party at PAX.

The company offered to settle with the fan for $4,000, but apparently retracted the offer after realizing the negative press that came from the fan’s interviews with media. However, one can only imagine the further negative press that comes from actually pursuing legal action. While you may be in the right as an IP holder, the exercise of those rights can have consequences that overshadow the potential harm (if any) of the original infringement.

In my law practice, I always try to keep all of these perspectives in mind when advising clients on what steps to take. It helps that I’m also a fan of games, so I can usually put myself in their shoes.

A developer’s options to fight YouTube copyright infringement

There are two major ways for a developer to fight back against copyright infringement on YouTube: Content ID and DMCA takedowns.

Content ID is a system that automates what a copyright holder does when infringement is detected. The copyright holder uploads copies of their material into the Content ID system. When YouTube finds a match to that material on someone else’s account, the Content ID system kicks in. This could mean that any ad revenue is diverted to the copyright holder, access to the video is disabled or the copyright holder just gets access to data about the video’s performance.

DMCA takedown, on the other hand, is a legal process governed by the Digital Millennium Copyright Act. Technically, it is a way for Internet Service Providers to avoid liability for hosting copyrighted content on their servers illegally that was posted by someone else. Functionally, this allows a copyright holder to get this infringing content taken down by filing a notice to the ISP.

So in the case of YouTube, a DMCA-compliant notice is filed and YouTube then disables public access to the video. The channel owner can then file a counter-notice, alleging that the takedown was either mistaken or unfounded. The copyright holder needs to then file a copyright infringement lawsuit, or the video should be put back up after two weeks.

Additionally, a copyright strike is put on the uploader’s account. Three of these can get their account disabled, so YouTube channel owners are rightfully wary of getting a video taken down.


Fair use of copyrighted material

When someone duplicates your material (whether it’s art, text, or other content) without your permission, they are probably committing copyright infringement. However, Congress has built some limitations on copyright into the law. These limitations are known as “fair use,” and they allow for the use of others’ copyrighted material without it being classified as an infringement.

For specifics about fair use, I have an entire eBook discussing fair use for game developers and YouTube content creators. Sign up and check it out here.

A recent decision from the 9th Circuit clarifies the role of fair use in the DMCA takedown process. Essentially, the court ruled that a copyright holder MUST take fair use into consideration before issuing the takedown. They don’t necessarily have to make the correct analysis, but it must be considered. When setting up any automated system or policing your copyrights manually, it’s vital that you understand the requirements before sending those takedowns.

Silencing criticism

A recent incident involving a game developer, Digital Homicide, and game journalist Jim Sterling is a great example of how using these tools to silence critics can go horribly wrong. Check out this video for a synopsis of the events (though, admittedly, it is solely from Sterling’s perspective):



Taking this on its face, this seems to have been a situation where a DMCA takedown was instituted based on an incorrect understanding of fair use and possibly to silence criticism. Even if the takedown was legitimate, there are considerations that should be taken into account before going forward. Doing this can have an outcome very different to what was intended.

The “Streisand Effect”

This is because of something called the Streisand Effect, which gets its name from a 2003 attempt by singer/actress Barbra Streisand to stop photos of her home from being published.

When you take action, legitimate or not, you run the risk of a couple things:

  1. Angering the fanbase, both of the creator you’ve done the takedown on and your own existing or potential fans
  2. Bringing more attention to the alleged infringement

I’ve talked about this kind of thing before with regards to trademark cease and desist letters. A company that receives one of these legal threats can often use the community’s dislike of such legal maneuvers to springboard their own popularity, like making a big deal out of having to change their name due to legal pressure. Therefore, care should be taken before pursuing any legal action.

A delicate balance

It takes a savvy businessperson to understand when and where to flex those IP muscles on the Internet.

None of this is easy. It takes a savvy businessperson to understand when and where to flex those IP muscles on the Internet. It takes a strong person to put aside emotions and avoid pushing against critics.

However, it can be done. If you go into IP policing with a cool head and some neutral advice, you can make a good go of it. The most important thing to keep in mind is to have empathy for those that are making use of your IP and for the audience that’s going to see it all play out in front of them.

For assistance in creating an IP enforcement strategy, why not contact a game lawyer?

Also, I’d like to thank my intern, Eric Whalen, for his research and input into this blog post. Eric is a JD student at Pepperdine University School of Law and an avid gamer himself.

This post originally appeared on The Game Lawyer Blog - check it out for more gamedev legal and business articles.

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