The uncertain state of video game streaming online | Hacker News Reader

The uncertain state of video game streaming online

arstechnica.com

56 pointspaglia_s27 comments

While it would be nice if the legal system clarified the issue, I would lean towards that copyright can not be expanded to cover self recording. Record of that kind will naturally include the environment, and as such, the legal system need to ask what the intention is and what conflict of interests may exist rather than a black or white view. If someone record themselves eating at a restaurant then the music in the background and the painting on the walls should not dictate the legal status of the recording. Same should hold true for any recording where the intent is not to record the works of others but rather the person doing the recording.

There is a similar legal uncertainty revolving cosplay, and the details are very similar. The content of movies and games is the inspiration of the costumes, but the intent is not to compete on the same market that the games and movies operate on and there really should not exist any reasonable claim of conflict between creators.

> Same should hold true for any recording where the intent is not to record the works of others but rather the person doing the recording.

From what I can tell most streams depend fully on third party graphics like games for their visual content.

I like your argument. But i totally see why this would be different.

Edit:// adding to that fair use allows snippets to be used. While let's plays more or less show uncut content from start to end. Imagine that with a movie.

It really depends on what the material essence of the stream is the streamer or the game.

You can go on YouTube and have multi hour long recordings of single player games that turn the game into a movie for story focused games I can definitely understand why some publishers would like to put an end to this as I have watched a few of those instead of buying the game and I know quite a few other people that would.

In other cases the streamer is the focus of the video either as an “athlete” or a “skilled professional” and you watch how they play or as an an entertainer where the game in the background doesn’t serve any purpose other than a filler or a tie in.

As for cosplay the legality while not formalized is pretty well established if you commercialize by for example selling kits, molds etc. without licensing you’ll get sued if you just cosplay at conventions no one would care. “Professional Cosplayers” are currently the problem because they blur the line between the comercial and amateur/ hobbyists as many of them well the really pretty ones are paid to attend events and do promotions basically as boothbabes in costumes this the biggest thorn as those events are often not sancationed by the owners of the IP or and could go counter to their principles or at least the public face they try to maintain. Yes there are outliers like Nintendo and in some cases companies that didn’t like what was portrayed on stream but the former is getting better and the latter doesn’t just apply to games you can still be sued in civil court for damages caused even if the content was under fair use.

    You can go on YouTube and have multi hour long recordings
    of single player games that turn the game into a movie for 
    story focused games I can definitely understand why some 
    publishers would like to put an end to this as I have 
    watched a few of those instead of buying the game and I 
    know quite a few other people that would.

I've done this, both for games I own and don't. Last I did it was for the new Wolfenstein game. I thought it looked cool, so when the demo came around I downloaded and tried it. At that point though, the suspense of what was going to come next was gone, and instead I just focused on controls and other things that bothered me. I didn't buy the game in the end.

Streaming has increasingly informed my purchasing decisions over the past year or so. Sometimes it's made my buy things I never thought I'd look twice at (e.g. Hellblade: Senua's Sacrifice) and other times as mentioned it's dissuaded me entirely. It's a double edged sword, for sure.

EDIT: To add to this, I feel that demos filled this niche for me before, but these days you rarely get anything but a super polished ad video that barely has any relation with the game. Back in the shareware days, demos were common place, and they definitely made me buy games more than once. Sometimes the rest of the game were a dud, most of the time it wasn't. A current game that does this to great effect is Tomb Raider – it gets you in the game proper, teaches you the controls, and drops you off right as the story is about to begin for real. If you purchase the game, you can then pick up right where you left off (which you can't from watching a video, or playing in a store.) It's a great example of demo design.

Years ago System Shock 2 had a demo which was basically just the introduction to the story, and the new Prey recently was similar. Both lead to me purchasing the full game almost instantly after completing the demo.

Also, in addition to streamers and youtube, I find the 2 hour playtime window for which Steam will refund unquestioningly, helps alleviate the stress of making a bad purchase. Provided the game is available on Steam, of course!

That's exactly how the Tomb Raider demo is, and just like you it led me to purchase the game afterwards – I wanted to see the rest! Almost certainly I wouldn't if I had watched the thing streamed though.

The two hour window is nice, but when does it start? I'll buy games sometimes because they are a good deal, during a sale or something, but not play them until long after. Regardless, I only ever play on my PS4, so I buy games through their store. Not sure what the return policy there is.

Two hours of playtime, or two weeks since you bought the game.

That's remarkably fair, thanks for the insight!

As much as consumers may like demos, all the data I've seen shows that having a demo actually decreases sales of games, which is why most games don't have demos anymore.

Unless your game is actually good, in which case I'd think it would drive sales. Anecdotally, I've bought several after trying the demos for them (and the opposite as well).

There's certainly precedent among some of the larger players. Look at Blizzard - just about everything has occasional free weekends or trials of some sort after the initial release.

demos prevent buyers from making impulse purchases of games. I'd say on the whole, it decreases sales more than it increases

It also prevents buyers from feeling cheated. I'd rather play a demo and realize the game's just not very good, than shell out $50 for it and more or less instantly regret it, with very limited (if any) options to return it at that point.

Did you actually watch the entire story or just a lets play/review? Wolfenstein isn't that great of an example despite having a story it's not exactly a story rich game.

I'm not sure the same thing would hold for a game like the Witcher 3, HzD etc. A game that I've just watched the edited cutscene & cinematics movie for is Halo Wars 2 I'm somewhat of a fan of the Halo franchise primarily if I can get the story I don't really feel the need to play that game since to me for that specific game the story would be the main benefit rather than the actual game mechanics.

Another example would be Star Wars Battlefront 2, I've cancelled the pre-Order after the debacle with the loot boxes so I just watches the single player game, I have a few friends that watched the Mass Effect Andromeda main story made into a movie instead of buying it both because of the bad press and the time.

And it's funny that you've mentioned Hellblade: Senua's Sacrifice, I've bought the game (well preordered it because both of Ninja Theory and their GDC demos) my GF watched me play it, and 10+ friends I know just watched it on youtube rather than buy it mostly again because of the same excuse "I don't have time for that" despite I know exactly how much time they sit on their PS4/XboxOne/PC because I can see when they are online. But they much rather play CoD/BF/CS:GO/WoW etc. in the bulk of their time and consume games via effectively binge watching instead of playing, I don't know how much they enjoy it but at least they don't feel out of picture when people are discussing games heck I've seen entire "discussions" on discord about games like HB:SS or HzD where the vast majority of participants if not all of them didn't play the game or didn't even buy it.

So I'm happy that you've bought Wolfenstein but it looks like you've bought it for the mechanics, It's also nice that a demo convinced you to buy it but sadly demos have shown to reduce game purchases not increase them especially these days.

And given the purchasing behaviours of both myself, my friends, and my acquaintances I understand quite well why publishers want to effectively kill turning their games into a movie, and for anyone one that claims fair use it's not.

I watched almost the entire thing. You're right, it's not a particularly rich story, but it is a story driven single player game – which is the point. It seems we agree actually, I wasn't saying streaming full games should be ok, but what I was saying is it has most definitely informed my purchasing decisions in the past, in a way that demos used to do when they were common place. (Which they aren't today, at least not on console.)

I didn't buy Wolfenstein in the end – you must have misread that – and it was a combination of already knowing the story and the game play not being compelling enough for me to want to it "again" as it were, that made me back out of purchasing. Had I only played the demo however, there's a good chance I would've bought the game, because I did want to see the story and the gameplay although not incredibly exciting was still enjoyable. Instead, I watched it for free on YouTube, like a movie. I absolutely understand why publishers want to make this go away, and frankly I support that.

I still like to try before I buy though, and unfortunately since very few games have proper demos I can try I'm left with either reviews which give me next to no useful information or play throughs. Unfortunately the latter is just as likely to make me not buy the game because I might just not be compelled enough to play it "again" (even though I only watched it the first time) whereas a well made demo (e.g. the first 30 minutes of the game or so) is much more likely to get me to buy right then and there just to see what's next. Mileage varies of course, not everyone is like me. Just providing some anecdotes here.

By the way, the reason your friends might say they "don't have time" yet play repetitive shooters or other games for hours on end is perhaps that those kinds of game require much less emotional investment. I know I'm like that, some games I just can't play because I know it'll take me forever to finish them, but I've still probably plowed down a good couple of hundred hours into BF1. Why? Because I don't have to recall the story or characters from two weeks ago, when I last played the game. I love a good story based game, but if it takes more than a few hours to play through there's a good chance I'll never finish it, unless it's very compelling. Horizon Zero Dawn is an example of a story driven game that had my attention from start to finish, but the only game I recall having that kind of pull on me before that was probably Fallout 2.

I get what you are saying about Story Based games, but even for those types of games certain stream scenarios have huge value for the publisher.

For example, someone who is very young may not have the technical ability to beat a game they own and finish the story. Do publishers really want to prevent this 5yr. old super fan from seeing how the story ends on Youtube?

Or what if a major game like Fallout 3. I might be interested in picking up this game for the first time. But the story that this game continues would be from a console generation it is very unlikely for me to have, and even if I did, I am not interested in playing a game from more than 10 years ago. Should I be able to watch the story elements of that game, to help facilitate a new purchase that helps that publisher? Some may argue that it is their right to force me to purchase the first games in order to get those stories, and it is their right, but it definitely isn't in their economic interest.

Well the first thing is that there are different difficulty levels and the "story" difficulty level is very common these days for the vast majority of story based games.

And yes the publisher doesn't care for a 5yr old, and we both know it's an emotional argument. I don't have a problem with various snippets being put online, I also don't have a moral objection to the whole game being made into a movie and put on YouTube but I can fully understand why a publisher wouldn't want people doing that and I don't see any arguments for it within the confines of current western ideology, as in one that does not abolish all or nearly all intellectual rights.

As for your second argument, well yes, but that isn't that common Fallout 3 is not related to any other Fallout game in other than setting, effectively every Fallout provides it's own confined story. Sure you might appreciate the easter eggs if you have played other games but the overall high level plot and story points of previous games are utterly irrelevant.

I wish they had advertised that more about Fallout 3. I had no idea.

I always assume when something has a serialized number, it is a continuation of a single story, but when they call it "Fallout: Russian March of Death" or something like that, it is part of a brand but the actual story will be self contained.

Fallout 2 came out in 1998 it was a turn based rpg with (almost) no VO and no cut scenes I understand what you are saying in principle but it’s a pretty bad example since you can really make a movie out of it even if you wanted too.

Fallout 3 came out 10 years later if it was a sequel it would contain some sort of “previously on CSI: Wasteland” part to catch people up as it’s pretty common in serialized story based games.

Ultimately I'm not too worried about this, simply because of how the money flows. Twitch is owned by Amazon. YouTube is owned by Google. If it ever comes down to copyright infringement, Google and Amazon both have billions of dollars to lose by not defending the creator from the lawsuit (they don't want a negative precedent affecting their bottom line). So both of these companies could profitably invest literally billions of dollars defending the creators. Thus, I'm not worried. Not only is fair use a reasonable argument, they can simply make the legal proceeding unprofitable for the game companies. Reputations are at stake as well, which is why you only see tiny companies you've never heard of DMCA-ing streams.

The game companies too have to like videos and streaming. I have only ever played games that I've heard about on YouTube and Twitch. I imagine I'm not the only one.

Disclaimer: I do not work for Google anymore, so this is even more of my own opinion than usual ;)

The situation reminds me of the famous Casablanca quote about gambling.

So in 99% of cases, streamers have nothing to fear because their activity is beneficial for all involved parties.

Until they do something wrong, get bad press or otherwise manage to piss off the developers. Then those will be shocked, shocked! to find that this stream is conducting copyright infringement on their game - and the streamer is basically dead.

Whether or not this is a workable state for the industry, that's not how law is supposed to work.

For those unfamiliar with the scene: https://www.youtube.com/watch?v=nM_A4Skusro

Still one of my favorite movies of all time.

I am a big fan of streaming, I watch mostly Twitch but have tuned into live Youtube presentations. I also consume more than a few Let's Play videos. I use streaming I watch on Twitch mostly for entertainment and at times "how to play" or "would I want to buy" and Let's Play stuff on Youtube for "now that I have it, how in the hell do I do..."

I do know that twitch recorded streams can have all audio portions deleted if they play music. since both the streamers voice and the music they play are bound together it makes for near useless videos. Many streams on twitch are behind "mature" flags requiring you to self declare age to watch.

So if music can result in a muted stream I fully expect a developer can claim copyright of the game music/sounds and mute a stream that way. I am not 100% in either camp but I do lean towards the developers being able to maintain their ownership which could preclude someone profiting from it.

There are many good streamers, personalities who no matter what they play the game is almost secondary to engaging their audience. They however tend to attract sponsors.

I do think there is no question of fair use in review videos but Let's Play videos may be a different issue. It all comes down to, do we apply the same rules to protecting music and movies to video games or not. To me games are as much creative expression as any movie and at times more so.

I'm reminded of another copyright issue from around the last turn of the millennium -- player pianos. Now, strictly speaking, I don't think player pianos are quite analogous to videogame streaming. However, I think a good solution for the legal uncertainty would be similar to Congress' 1909 reaction to the 1908 Supreme Court decision -- specifically, compulsory licensing. Anyone can record or perform a cover another's song, and so long as they pay the statutory licensing fee, they're in the clear, and don't need to seek permission of the original copyright holder.

(Those of you whom are more versed in copyright law, if I'm getting this wrong, please correct me.)

So, if streamers needed only worry providing notice and a small check to the copyright office for the Let's Play streams they'd be preforming this month, I think that'd be workable. As it stands now, a streamer needs to worry whether GameFun Studios is going to sue him if they don't like the opinions expressed in his performance while playing Platform Jump 3. That strikes me as a bit less workable.

This really feels like the 21st century Warhol Vs Campbell's Soup battle. Until the courts rule, both sides are going to say "obviously we're right because...". It doesn't matter what makes sense, only what has better legal precedent.

So long as the hosts of the video are commenting on the game, or making fun of it, or elaborating on the art in some meaningful way, that should fit the definition of fair use, shouldn't it?

If they're just playing through the game without comment, than maybe not so much? And then were do speed runs fit in?

Honestly companies should really embrace this. They get promotion on platforms like Twitch. Watching the game isn't the same as playing it, and it could encourage people to buy the game. I honestly only watch games I've played before, allowing me to examine the art and graphics without having to be involved in it again.

I think it really depends on the type of game being played. If you're playing a game like Gone Home (https://www.youtube.com/watch?v=Ak4wU8Gp2RQ), where there really aren't many (if any) decisions to make, you can watch the video and pretty much skip buying the game. On the other end of the spectrum are games like LoL or CS:GO where watching the game doesn't really replace playing it yourself.

I enjoy games from both ends of the spectrum, and the story-based games seem to struggle on the financials (from my perspective), and I would hate to see gaming culture evolve in a way that makes things harder for them to keep the lights on.

Consider this - on the extreme end it is the equivalent of someone streaming a movie while putting their face in the corner with their commentary. Would that be ok? (I could see a world where there's a technical solution that allows you to overlay a reaction video on top of your Netflix player. Maybe something similar could happen for video games.)

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