Recently, Felix Kjellberg, better known as PewDiePie, found himself in some very strong controversy.
Currently the world’s most subscribed YouTuber, PewDiePie’s channel has proved over the years to be both extremely popular and extremely controversial.
In January, PewDiePie did a “reaction” video to a two men he had paid holding up an anti-semetic sign, that video resulted in Disney cutting ties with PewDiePie and YouTube cancelling a planned reality TV show.
PewDiePie apologized for the incident, saying that it was not his intention to legitimize hate speech.
However, that apology seems extremely thin after another incident this week. During a livestream PewDiePie used a racial slur to describe another player. He quickly backpedaled and apologized, but the casualness with which he said the slur and his lackluster apology did little to soothe the issue.
Now, others are seeking ways to push back against PewDiePie. One such example is Campo Santo, the video game developer behind FireWatch, which filed a Digital Millennium Copyright Act (DMCA) notice to remove PewDiePie’s playthrough of the game.
This DMCA notice could be very damaging to PewDiePie’s channel due to the way YouTube’s copyright strike system works. If other developers follow this approach, it could result in the channel being banned.
But as tempting as this is, copyright is not the correct lever to use to deal with PewDiePie. Doing so not only creates dangerous precedent, but may actually make it more difficult to deal with actual copyright issues down the road.
The reason is pretty clear when you think about the long game of this type of response.
What Makes a Copyright Infringement
Let’s Play videos and copyright have long been a potent combination. Though most legal experts agree that let’s play videos are, at bare minimum, in a legal gray area, the vast majority of developers have tolerated such videos, seeing them as great promotion.
Still, that hasn’t held true for all developers. Nintendo, for example, has been infamously restrictive of let’s play videos and even created a program to license YouTubers (at the cost of a percentage of revenue on the channel).
However, most developers have a very open policy about let’s play videos, many even send review keys to prominent YouTubers in hopes of getting additional publicity.
If you allow something, or in more legal terms grant a license for it, then it’s not an infringement when someone does it. When PewDiePie made his video of Firewatch, he had permission to do it from the developer and their open policy on such videos.
When you file a DMCA notice, you are asserting that the content in question is a copyright infringement. However, if it is authorized (even through an informal license), it’s not an infringement. It was authorized when PewDiePie made the video and the only thing that changed was his use of racist language.
So, this raises a simple question: Did PewDiePie’s use of racist language invalidate that license? A recent capture of the Firewatch site (in case it is changed) shows that there was no such restriction in their permission. Their license simply reads that:
Can I stream this game? Can I make money off of those streams?
Yes. We love that people stream and share their experiences in the game. You are free to monetize your videos as well. It doesn’t hurt to let us know on Twitter when you’re live. We might show up in your chat!
That’s a pretty blanket license to stream the game with no mention of it being revoked if the YouTuber uses racist or otherwise offensive language.
In short, as horrible as what PewDiePie said/did is, there’s no reason to believe it led to the license being revoked or to the video becoming an infringement.
As such, the DMCA notice is most likely improper.
The Bigger Problem
When pressured to defend the takedown, Sean Vanaman, co-founder of Campo Santo, Tweeted this:
Freedom of speech is freedom of prosecution
His stream is not commentary, it is ad growth for his brand
Our game on his channel =endorsement
— Sean Vanaman (@vanaman) September 10, 2017
While he’s technically correct that freedom of speech is freedom from government oppression of your speech, not freedom from consequences, he indicates that his primary concern was that his game being on PewDiePie’s channel was tantamount to endorsement.
If that were the case, it would seem to raise more of a trademark issue than a copyright one. The DMCA is a copyright law and using it to enforce trademark laws is wholly inappropriate.
But Vanaman’s statement seems to indicate something else: That they are willing to revoke their broadly granted license if they don’t like what the YouTuber has to say or don’t wish to be associated with them.
If the license that Campo Santo grants can be revoked over language the publisher doesn’t like, how far can they go? Can they remove videos that express political ideas they don’t like? What about videos or channels that use other kinds of inappropriate language? What about those that simply don’t like the game?
I’m not saying Campo Santo would do any of these but we’ve already seen cases of video game developers using copyright to stifle reviews they didn’t like. YouTubers are understandably antsy about these issues given the impact they can have on their channels.
Campo Santo’s clear licensing language above becomes muddled by this action. Their open invitation to play and stream the game now comes with caveats and the caveats aren’t known until after the fact.
In short, Campo Santo’s DMCA notice isn’t just a misuse of the law, but it further muddies the already comlicated relationship between developers and YouTubers. Considering that YouTuber’s already need a Wiki to keep track of what developers and games they can make videos from, this takes an already difficult situation and makes it worse.
To be completely clear, what PewDiePie did and said was wrong and he’s deserving of all of the backlash he is getting over it. The media is right to draw attention to it and the community is right to push back against it.
That being said, using copyright as a tool to retaliate is not only a misuse of the law, but harmful to the complicated and strained relationship between developers and YouTubers.
While developers can and should discourage, condemn and speak out against racist language, using copyright to fight against does little to stop such language and creates many more problems along the way.
While I believe the intentions of Campo Santo were noble, their methods will do more harm than good. For one, they’ve turned what should have been a conversation about PewDiePie’s actions into one about false DMCA notices, drawing attention away from where it needs to be.
Though fighting racism is a noble cause, it’s important to ensure that it is fought in a noble manner too. Using a questionable DMCA notice does not meet that qualification.