In September of last year, the developer of Firewatch issued a DMCA takedown against now infamous YouTuber PewDiePie after he used a racial slur during a live stream of another title. The incident didn’t make headlines only because of PewDiePie’s profile or the fact that the game Firewatch wasn’t directly involved—this also represented a rare instance of legal rights being asserted between game maker and game streamer.

As much as video games are an interactive medium, in recent years an entire scene has grown out of people such as PewDiePie streaming video games online. Be it live streaming on Twitch, or Let’s Plays or other types of video content on YouTube, gaming has gone from just something players do at home, to something that they also watch other people do online.

As these streamers and personalities have grown in popularity, so too has the discussion over the rights of streamers and developers in regards to said content. Are streams covered under fair use with content creators allowed to make money off of them? Or should the original creators of the games have a say in how their products are used in the public eye, not to mention a chance to generate profit? Developers like Ubisoft and Microsoft have shown a willingness to work with creators and encourage game streaming (and earning). Nintendo, on the other hand, is known for enforcing its copyright in this area. Atlus, too, received pushback surrounding the company’s initial policy for streaming Persona 5.

To attempt to dig into all sides of the debate, we cast a wide net. However, YouTube declined to make anybody available on the record, and Twitch passed on being involved, as well. On the developer side, Campo Santo offered a small statement in support of streamers but preferred to have no further involvement. Riot Games pointed to its legal page, saying it had nothing else to add.

We did talk to streamers—and a lawyer—to get a look at their sides of the situation, capturing a picture of some of the current schools of thought surrounding streaming video-game content online and what it may take to change the way things are now. But today, streamers continue to pump out videos, just as developers continue to create games, even if streaming’s future is uncertain.

An advertising-arial relationship

Naka Teleeli posted his first video in 2008. In one of his videos about Wonder Boy: The Dragon’s Trap, Teleeli informatively presented history about the series before going into his epic narration of the game’s intro text. He mostly does Let’s Play—where he’ll play a game while providing audio commentary—videos, with a focus on somewhat retro games and indie titles. Currently, he has almost 40,000 subscribers on YouTube.

“I understand that legally it’s a very grey area, and there’s been a lot of arguments for both sides that all the content being shown is actually owned by the original person, or it’s transformative, and I honestly understand both sides of the story, because all the content you’re seeing is indeed owned by someone else, they made this content,” Teleeli says. “But at the same time, I also see it as transformative.”

One reason he sees it as transformative is because viewers who watch videos aren’t playing the game. While the literal imagery being viewed may be the same—whether playing the game or watching someone else do it—the input experiences are different.

“The whole point of games, is to play them,” Teleeli says. “Removing that, and then on top of that adding in our own commentary, our own reactions, the way we progress through the game and react to what’s going on, I think that’s very transformative … If you think about it, watching a Let’s Play is not even remotely the same thing as playing the game yourself.”

While he may see the experiences as different, Teleeli added that most of the content being seen is still the same and that he can see both sides. “Personally, I’m of the opinion that I think some kind of middle ground, legal middle ground, would be nice,” he says.

Even though he does consider Let’s Plays as a legal and transformative thing that is allowed, that aspect of the business remains a worry for Teleeli. “If somebody sets their mind to it, it’s very easy to get a channel taken down,” Teleeli says. And to a degree, the streamer agrees that developers should have a legal right to control their game footage, though he doesn’t agree with “how some things are flagged and why.” And while Teleeli hears stories about people watching videos instead of playing a game personally, he doesn’t feel those were lost sales: such a person probably wouldn’t have purchased the game anyways.

“I’ve also heard any number of people that say they have gone out and bought a game, because they saw me playing it,” Teleeli. “So, if we think of it as an advertisement, I actually think it fits very well.”

“I think the more open developers are working with people making videos for their games, the better, because these are people that are, in my opinion anyway, advertising their games,” he says.

And while Teleeli thinks that content creators should be friendly and outgoing, he also thinks that they should keep control over streams made with their products.

“The biggest thing that I want is things mostly to stay how they are, only with the developers and content creators simply being more forthcoming and cooperative,” he added.

https://arstechnica.com/?p=1250467