Streaming As Infringement

Some basic questions on streaming and internet and copyright can be found on this (oldish) video about Youtube. But it comes down to that if you created something, you have some rights in dictating how people use that thing when it creates a derivative work.

By derivative work I mean the legal version of this term, better explained by real lawyers. I remember sitting in a class about this stuff 15 years ago and it was already well-understood that the internet, as used by individuals back then, is a massive copyright-infringement machine. This is the understanding Congress got back in the ’90s when DMCA was codified. They weren’t wrong.

What is wrong, is that copyright is never meant as a thing that mediate the use of copyrightable material between companies and individuals. It was always a system that regulates different entities in the IP ecosystem. By entities I mean, like, schools, local governments, libraries, advocates for disabled people, movie studios, record labels, TV stations, movie theaters, manufacturers of home/personal electronics, artist unions, etc., and sure, internet companies should be included in that mix. But their users? That’s just not right nor should that be the case as it wasn’t ever intended to be like that.

When Twitch DMCA’d a bunch of streamers who make money from Twitch streaming, I have so little empathy for this, in that I both know what it’s like and I really have a hard time summoning some empathy. The Twitch economy is a community of people who provide content for folks in Twitch’s niche, and in exchange the streamers are the face of the “product” which folks pay to support and enjoy, while this company that made this economy possible profit by being in the middle. This is really no different than a TV station, but way hands-off and low-effort. Like, ever try producing a show? Twitch barely even does this. But they make more money than any streamer on their own platform. Twitch just dropped the ball here, clearly. They are suppose to bat for their users and streamers, but they dropped the ball at that middleman job.

Twitch’s business model liberates viewers to directly connect from content creatives, but it also liberates its responsibility. It’s the Silicon Valley Tech Startup thing to do. Moderation? Legal guidance? Being responsible to the greater community at large? What are those things?

Which is to say, copyright law and the framework we have today affects many different parties, as in types of industries that are completely different. When USA decided acid rain is not worth cheap steel, there was the will and the means to better regulate industries polluting into the air. It wasn’t the construction industry or the steel industries that thought it was the responsible thing to do. It was the rest of us getting pissed on knowing to not take no as an answer. It’s really the same with copyright law and in how we frame this discussion. In the 90s and 00s we said “wag the dog” in which companies like Disney and the recording industry trying to strengthen copyright law, not caring about the ripple impact it has on, say, tech (see: Oracle vs. Google, a copyright lawsuit that is so dumb that should just end). I mean, the recording industry is only a few hundred billion dollars big in the USA. For contrast, Tesla alone is bigger than all of the recording industry in the USA. (Tesla today, by itself, is bigger by market cap than the motion picture industry in the USA PLUS all of the recording industry in the USA.) Yet the lobbyists it hired to sway law in the 00s affected companies today that are 100x larger than it, like Youtube and Google.

Which is to say, the side effect of this is precisely that, game publishers are legally able to shut down any streamers who stream their games! Because let’s play (and similar) streams are derivative works. Sure, most of the stream would still be original, and people watch these streams less for the game and more for the interaction between the streamers and their environs, but some of the stream isn’t, and that taints everything. But it really shouldn’t come down to this–Youtube has a responsibility here. If it can bother to throw 100s of millions to their streamers and tubers, they can get copyright right for them too.

It’s the same LOL-ness when someone like Digibro makes more money than a room full of animators, years ago when the streaming thing was just starting. I mean, poopheads on Youtube make more money crapping on anime made by 50 or however many animators in Japan getting paid probably 1/10 as much as the streamer talking about the stream? It seems particularly grievous when these streamers only made it big because the community and fandom these anime and games have created. Today the same LOL occurs when Hololive vtubers monetize Shiny Color let’s plays. I don’t have any opinion on this now (or the Digibro thing) other than it is just how reality is ever more ironic than the might of our collective imagination.

I mean, think about it. If Gawr Gura and Hololive get $10000/day on superchats streaming some indie game that sold 10000 copies total, I feel those devs kinda morally deserves some of that chum bux. And even if Gura streams some game from a big name publisher, in entertainment biz, that still means Hololive needs to do the needful and pony up something and get permission. It feels fair. And just the fact that a popular person wants to play a video game or read a book or wear a t-shirt or use a purse, it doesn’t mean those brands or publishers owes it to the celebrity either. They could take it or leave it, as it’s their act that engaged things in the first place. There needs to be an agreement in place first.

More importantly, all this should have been taken cared of behind the scenes. That fans care about this juicy drama is fine, but it should have already been dealt with already. It is drama of a business that could have done a better job running itself.

I think there are a couple additional factors: Fair use. A lot of people don’t realize fair use isn’t really a thing outside of USA. There are other things in other countries that cover some of the same exceptions of fair use, but it’s uniquely American (in how grey-zoned and unpredictable in a court it could be). Plus, as the original copyleftists have manifested elsewhere, fair use is broken anyway, it’s not a compelling and long-term solution to any copyright woes.

Second, people really just want copyleft. But as people in the industry knows, it’s hard to sell something that can be freely (as in speech) distributed (shared). You want it to stop at the first level. There’s no real solution here without fixing some or adding some new law to change the current schemes.

Smart people have been at this and looked at various possible frameworks, both in terms of feasibility and in effectiveness. That’s why we have notions about compulsory licensing in music and the Library of Congress has some arbitrary power to make unlocking phones legal. I mean, why is unlocking phones a copyright things at all? To say the system is broken is to state the obvious. But the solution will require acid rain pissing on us to get pushed through Congress, is the scale we’re at now.


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