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Comment by skrebbel | Hacker News Reader

Note: I don't know anything about games or livestreaming. This is a genuine question about something that confuses me.

Can someone explain why livestreamers can claim their stream as their own original content, but reuploaders can't? I mean, someone who livestreams a game is primarily showing off the artwork and level design and everything put in by the game company. There's like 90% derived content plus 10% original. A reuploader does exactly that: take 90% of their content from elsewhere (the livestreamer) and add 10% (good editing).

I understand that all this is in everybody's benefit: a game company likes livestreamers because it helps market their game, and a livestreamer likes reuploaders because it helps market their stream. So the amount of cease-and-desists going about is low. But still, why does the livestreamer get to own the content, and not the reuploader? I really don't see the difference to be frank.

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People don’t watch live streamers for the game, they watch them for the streamer. On the contrary, 90% of the value of the stream comes from the personality playing the game and 10% comes from the game itself. It is common for streamers to jump around many games because it was never about which game was being played.

A good example of this is DayZ, a game that was very buggy and had a lot of negative criticism, and yet it became very popular because streamers pushed it so hard. Even bugs and broken mechanics can be fun if you are watching streamers laugh at it

You could also consider the game to be a “set,” i.e. a digital space that the livestream is filmed within.

If that was true, they would be doing it without games - they would just be sitting there and chatting for example. But since they don't, it mostly means that for those streamers people would not have watched them without the game being played, so the question of whether the game or streamer is at 90% of value it quite open.

"Just Chatting" is so popular on Twitch there's an entire category for it: https://www.twitch.tv/directory/game/Just%20Chatting

And quite often it is the most popular category on the site.

Exactly, it is a different category with usually different people in it. And likely different people watching this category than the ones watching games.

No. The games are just the common ground between the streamer and the audience. Remove the common ground and it's not as much fun. Sure, the streamer's personality might be sufficient for a video by itself, but I suspect both sides want the game there to serve as a vehicle for progressing the social interaction.

> If that was true, they would be doing it without games - they would just be sitting there and chatting for example.

This argument is flawed because 1) many streamers do exactly that, and 2) just because a streamer is not interesting when he's not playing a game doesn't mean that all the value is coming from the game. A juggler is not interesting without balls, does that mean it's the balls providing 90% of the value?

Given that:

* many streamers spend a substantial amount of their time just sitting and chatting with viewers, no game being played.

* if it was the game providing the value, you could just show a recorded playthrough without a streamer there to interact with the viewers, but this is not very popular.

* many streamers can play any game at all and draw a large viewership, but there are no games that any person can just start streaming and easily draw a large viewership

It seems fairly clear to me that the streamer contributes much more value to a livestream than the game being played.

There are hundreds of examples for popular streamers that tried to change games but needed to go back to keep their viewer base what makes the statement that its 90% the streamer not sustainable.

This does not make your statement wrong, but there are several other dependencies that do not allow this to be generalized.

No, what happens there is that some streamers are more linked to a specific game because maybe they are better or funnier, but that's it. If you go to Twitch and scroll down in Fornite you will see hundreds of people with less than 100 viewers which also confirms that the game means almost nothing.

Minecraft is linked to the growth of many Youtubers because its the most open game you can find and thus giving creators the biggest canvas to their imagination. It's like saying that 90% of a piece of art is the used material... It just doesn't make sense.

I think it is a little bit of both. IMO, it seems to be along the lines of how big the channel is. The bigger the channel, the more room and flexibility they have to move around games because the fans are more there for their personality than the game. Lower end channels don't have that freedom. It is almost like their fans are there for them, but only playing that specific game (whether it be for their skill in the game or maybe their knowledge of it).

I'd say the game is the "genre" and the streamer is an author. If you are someone who produces music or literature, and you do it in a popular genre, you will get some of the genre's public through radio streaming, antologies etc.

If you are good enough, people will buy your next album/book in the same genre. If you have a cult following, people will buy your next book/album in whatever genre.

The Game is the layer that very often carries the streamer, if it changes the base connection to the audience changes too. This can easy create a imbalance or conflict in interests. If the viewer can't relate to the specific game they usually leave (change of audience).

So it highly depends on your Audience. If you are a variety streamer, your audience is used to the changing environment. However this does not apply to the vast majority. If changes in audience(game) can cause up to 90+% difference its hard to quantify it as negligible factor.

> If you go to Twitch and scroll down in Fornite you will see hundreds of people with less than 100 viewers which also confirms that the game means almost nothing.

Not at all. There are so many small Fortnite streamers because they want to become big like the popular ones and they know it is extremely hard to grow a stream out of the top 10-20 most watched games.

You can easily prove this: pick any popular but-not-so-much game and you will find way, way less streamers. To the point some have only 5-10 people streaming it, while having many tens of thousands of concurrent players. And yet only a total 100-1000 viewers combined are watching at a given time.

That's only for extremely popular streamers. For 99% of them they can only play the one game that made them get viewers in the first place. They didn't get popular because someone googled "Ninja" they got popular because they were playing Fortnite and people wanted to watch fortnite get played. .1% of those guys get big enough they can switch games.

That's a funny argument however as I don't watch streams. Aculite and Jackfrags are some of my favourite creators but I just want a tight 10-20minute video of good content. I'm not going to watch someone have half a conversation with someone else for 2 hours. If they decide to stop producing those and only stream I will no longer find their content. So arguably people remixing streams are adding 90% of that value to me that wouldn't be there before.

It's a similar problem space as architecture photography. On one hand, the photograph requires a technical skill, can involve some creativity and the photograph definitely wouldn't exist without the photograph. On the other hand, the art inside the photograph is primarily by the architect. A picture of a beautiful building is only beautiful because the photographer correctly captured the existing art that is the building.

I love architecture and photography, and this has been a thought that comes up a lot.

Ultimately streamers are performers, and it's their performance of the game that's being streamed. That includes their commentary and their performance in the game, both are inarguably unique. So you could say that is what the revenue is paying for.

If the problem space is that similar, a streaming equivalent of

https://unhappyhipsters.tumblr.com/

ought to exist.

The general rule for derivative works is that you own the changes, but you still need the original copyright holder's permission to distribute the changed version. Thus the reuploader owns the sequence of play(stream, start, end) instructions that make up the edited version, but the streamer still owns the stream itself.

So the publishers own the game, the streamer owns the performance, and the reuploader owns the edit. In theory each requires permission from the previous (including transitive relationships, so the reuploader requires permission from the publisher since the edited version still contains content from the game).

And in most cases these days the games company gives (at least implicit) approval.

It makes sense to do so, because games and streams do not compete with one another as much. Edits of someone's stream probably competes more with the stream itself.

Yes, it makes sense for the game company. The stream is more of an advertisement than competition.

I can see that if you organized game-streaming as an entertainment provided by a company, that company would most likely want to hire an editor to provide a best-of version.

(That's essentially how all those reality TV shows like Big Brother worked. Plus some extra dramatization, of course.)

There's economic value to consumers in getting the best-of version, so I am hoping that the participants will find a way to share the larger cake.

> In theory each requires permission from the previous

Up to fair use. There's a good argument that streaming a game is fair use. It's highly transformative, not a market substitute, contains criticism/critique/commentary on the original, and contains only a fraction of the game. That's hitting all four of the factors considered to at least some extent [0].

Reuploading someones stream exactly, no way in hell is that fair use. It's not substantially transformative, it is a market substitute, it is for profit (as is the original stream) and it doesn't contain any added commentary or criticism, it might be only a fraction of the stream, but that's one factor out of four at best.

[0] https://en.wikipedia.org/wiki/Fair_use#U.S._fair_use_factors

IANAL

This was the insight I was looking for, thanks!

> Up to fair use. There's a good argument that streaming a game is fair use.

This is a very US-centric perspective. For example, in Germany's Urheberrecht, there exists no concept of fair use.

In a similar fashion imagine if you created a book and then streamed yourself reading it out loud for 5 hours in 1 video and then someone came in and cut that 5 hour audio book up into 100x 5-10 minute clips where you talk about a specific point and put it all up on Youtube.

And now they are making $15,000 a month from the millions of views it's getting because they did a good job with titling everything. At this point they've even overshadowed your own content because Youtube's search algorithm prefers 100+ smaller videos with really good titles vs 1x 5 hour video with 1 title and also most viewers on Youtube prefer the shorter clips.

Who should be the owner of these clips? In this case the re-uploader isn't adding anything new to the content. They are deciding that from 15:31 until 23:17 the original content creator was talking about X subject, so they cut out that bit and put it directly into a new video.

This is a really hard problem to solve because someone else might come in and cut that ~8 minute clip into 2x 4 minute clips or even change the offsets by a few seconds and now the file is completely different from a file size perspective.

That's why you see all of those videos of people who record certain shows on TV and then frame it in a weird background with moving circles and other artifacts, or they reduce the audio playback speed to 90%. It's to get around Youtube being able to detect it's duplicate content from someone else.

It only became a hard problem to solve because:

1. The creation of the unlicensed audio book was tolerated

2. There is a presumption that the unlicensed audio book should be protected from derivative works that profit from it

It's hard because the intolerance of derivatives works in (2) is inconsistent with the tolerance of the derivative work in (1); and so raises the question of when do unlicensed derivatives convert from tolerable to intolerable.

This is outside of all but the most liberal interpretations of fair use, IMHO.

It sounds a bit like saying that any classic painting was 90% created from materials provided by other companies: canvas, oil colors, various chemicals, and painter just used those, but then took all the credits. The thing is that the value comes from the uniqueness of the final work, and painter and in this case the streamer are the only ones who provide that crucial element. Without them there's nothing, viewers wouldn't watch it, so you can fully argue that streamers are in fact the creators of the original content streamed. Re-uploaders on the other hand create derivative work, and there are strict and well-established rules on that.

Classic painters often mixed their own paints; or had a team of understudies who would do it. They didn't simply pop on down to the general store and buy some paint.

As to your argument; the re-uploaders create additional value of their own, and it's no less derivative or valid than the work of a streamer.

OK, imprecision on my side, under "any classic painting" (note "classic", not "classical") I really meant just "a painting" in a usual sense of it, not some post-modern "thing" or performance or whatever... however for my point it really doesn't matter who painted it, let's presume it was my grandma, who just finished watching some Bob Ross videos on youtube, popped down to the general store to buy some paints and brushes, and painted some still life for her own pleasure. It's still 100% her original work, not paint manufacturer's, nor Bob Ross's.

Derivative work is well, derivative, and it's regulated by the law, whether it's a translation or sampling of music or video compilation. Depending on the country/state the definition by law differs, but generally you're allowed to use only small portions of other people's work and there's a requirement to create something that is significantly different to the work used, so that it can be considered as an original piece. So re-uploading is very fringe activity in the eyes of the copyright law.

Streamers are also creating derivative works; few would be as popular if their streams could not feature gameplay footage, and their use of such stretches well beyond short clips for review or parody.

Re-uploaders pare down lengthy streams, edit multiple streams together, and engage in other content modifying behaviour. Their work, though derivative, should be tolerated if we're going to tolerate the behaviour of streamers. Streamers argued for this tolerance, after all.

Would louisville slugger get to claim any rights for a baseball game?

What about the designer of a fancy chess set?

The game itself is usually meaningless. It's the personality, skill, and strategy of the players that matters.

If one were to use the Louisville brand without license to do so then you could bet on a lawsuit.

IANAL but I don't think that is how trademark works. I believe you're allowed to use any trademark as long as it is being used to describe the thing that it is registered for, you don't infer that you're associated.

For example I'm pretty sure anyone could recreate the Pepsi challenge without asking Pepsi or Coke for permission, as long as it was actually Pepsi and Coke in the cans, and they made it clear that they are not affiliated.

Right, but if I were to make baseballs and use their trademark to brand the balls, or start a league named after the trademark...

Just using their bats with their name visible isn't the problem, of course.

Its in the same camp as fanart - as long as you don't fall under the ire of the original IP owner you are generally ignored. Nintendo, in contrast, is pretty infamous for claiming monetization on Youtube lets plays of their games and getting some taken down over the years. But they also regularly go after fan works across all mediums.

They do have that right - it is footage of their IP - and any game developer could sue for copyright infringement of anyone distributing recordings of their work. Its just rarely in their self interest to do so - Youtubers don't have the money to justify the legal battle (and those that do can then also afford the lawyers to protract out the contention in the courts about it despite ultimately the law being on the game publishers side) and lets plays generate free advertising for their games. How many units do you think sell when Pewdiepie plays your game? Probably way more than he makes in ad revenue off the video showcasing it. Its why developers go so far as to sponsor these kinds of videos outright - with a popular channel and a game that matches the demographic audience of the lets player you can easily way better returns paying for sponsored lets plays than using traditional advertising.

It's not about who contributed more content to the final product, it's about who has permission.

Game creators give streamers permission (sometimes just implied permission, but with more recent games it is more explicit) to share streams of their games. The streamers are not giving anybody permission to re-upload their content. The video game company doesn't automatically own the derivative works that they have given permission to be created.

A voice actor cannot record an audiobook version of a book without the owner permission. A baseball player can sell a recording of a game of baseball (for the sake of argument, since baseball isn't copyrighted)

A streamer playing a game is much more like a sports professional than an audiobook narrator. For most popular streaming games like LoL, Rocket League, Fortnite, Counter Strike or Hearthstone the game itself is mostly a set of rules and an arena.

I watch a League of Legends streamer www.twitch.tv/bizzleberry

I don't watch him for the artwork - I watch it primarily to learn how to play better, and because he's an amusing, chilled chap who talks to his 'chat' as he plays.

Jim Sterling's small disagreement with an asset flipping nobody game dev over displaying videos of games described the argument for youtuber uploads of gameplay. He said that the argument in court would be that the review or livestreamer playing the game is creating a transformative piece of work by playing it. There are an infinite number of different videos that could come from playing a game so any individual one could be considered transformative, combined with commentary and a face on top. That would fall under fair use. He went on to say the argument had not been tested in a court and he said it to demonstrate how expensive it would be for his opponent to try and control video reviews that were critical of the product via legal means.

I don't know the legal defense, a game developer is specifically trimming out bugs and separate paths through the game world so I personally would argue any experience a player has short of deliberately breaking the game and getting outside the map bounds should be considered the within the bounds of what a game is and therefore not transformative.

The difference with Jim Sterling is that he is (was?) pretty explicitly reviewing those games. In the case of a livestreamer it's harder to argue that it is a review. Reviews are something we want protected, because they inform consumers. This makes them good for society. Livestreams tend to have a less direct path to "definitely good for society".

I agree on the value judgement you're making but the transformative aspects are the same legal argument.

I'm not sure. Calling it just 'reuploading' is also kind of insulting because it seems a lot of these people spend serious time editing together clips and highlights to create something fresh from what could have originally been an 8 hour long stream.

People do this for movies, tv episodes, news drama, creating interesting clips without much issue and I don't see a big difference.

> But still, why does the livestreamer get to own the content, and not the reuploader?

The answer is that it is arguable that a livestreamer does not own the game content, and the game publisher absolutely could do a DMCA takedown request against people playing their games.

Game companies are generally fine with people who are streaming their content, though, and streamers are generally not fine with a re-uploader using it.

Therefore the re-uploader doesn't have permission for the content, and the streamer does have permission.

> and a livestreamer likes reuploaders because it helps market their stream

Maybe this is true on one side, but on the other the people who reupload the content will also get revenue from people watching. Since it's the most popular parts, relatively many people will watch it, often completely skipping the stream itself. This means that the original streamer (who creates the value of commentary) has quite a bit to lose from people reuploading their stream.

That's like saying the NBA shouldn't own the rights to its tournaments because it didn't invent basketball. Who does the activity is important.

Also game companies want to have streamers because it's huge free advertising

Isn't it a bit like with cover bands?

Cover bands get paid to "copy artwork" on-demand/live.

People who record cover bands to sell their performance don't get paid.

In most european countries (except Britan I guess), there exist nothing like the copyright where the content is protected by ownership.

In these countries like germany, the personality in the product (in the stream) is protected as a kind of artwork. I think this point of view might be helpful to understand these dynamics.

Did the game designer have their personality in their game? Shurely, however since they are employed the company automatically gets access to these rights and can (as economical instrument) allow streamers to use them.

The streamers itself put their personality as well in the product since this is the reason people are watching it.

However it is hard to argue that a cut of a video entails enough personality to be protected by itself. Therefore according to this law it is a copyright violation.

TLDR: Cutting and reuploading entails no creative process of the creator.

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