Comment by gpm | Hacker News Reader

Comment by gpm | Hacker News Reader

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I suspect this is a largely incorrect legal take as far as US law goes, though if you have a court case supporting you I'm open to being proven wrong.

My not at all a lawyer reading is that streaming video games is almost always a classic example of fair use and thus not copyright infringement in the first place. Fair use is evaluated as a balancing act of 4 factors, and streaming is very favorable under 3 of them:

It's transformative, adding something new to the original work and not superseding it at all (factor 1), it reproduces a small fraction of the whole of the work - only renders of the final work not the models behind it, none of the code, only the fraction of the artwork that is interacted with and even then only in one of many possible renderings of it (factor 3), it doesn't compete with the original work in the market place (factor 4).

The only thing that really ways against it is that the original work was very artistic in nature (not something like a recording of JFK getting shot, mainly of interest for it's factual content... actual example from a court case).

The problem with fair use is that it is very often in practice decided by "judge gets a gut feeling of whether or not it's fair, and uses the factor to buttress their opinion." It's not an objective reading of the factors in practice--read the dueling analyses in SCOTUS's opinion Google v Oracle. One analysis finds all four factors favor fair use, whereas the other finds that the three factors that really matter (as who really cares about factor 2) all disfavor fair use. The latter was the dissenting opinion, but quite frankly, it's the kind of analysis you're likely to see a trial court judge actually use.

Let's run through that kind of analysis here. Factor 2 disfavors fair use, because the original work is clearly "creative"; what more needs to be said? Factor 4 is the marketplace factor, and clearly, people who are watching the game aren't going to be playing the game themselves, so it's having a depressive market effect--fair use disfavored. Factor 1 is again disfavoring of fair use, because you're reusing market value copyrighted content in a commercial context. It's not transformative because it's not commenting on the original work [1]. Factor 3 again disfavors fair use, because you're reproducing essentially the entire video game in the playthrough.

Conclusion: all 4 factors disfavor fair use, so how can it be fair? I personally disagree with this analysis, and I even think that it misapplies SCOTUS-level precedent (precedent at the circuit court level is even more incoherent), but this kind of analysis is more likely to be what I expect to see, especially because (as in Thomas's minority opinion) the monetary and commercial implications of the use tend to dominate the thinking.

[1] My understanding of practical US fair use analysis is that "transformative" is viewed far, far narrower by the courts than by lay people.

>It's transformative, adding something new to the original work and not superseding it at all

A let's play is not transformative. You are literally experiencing the game as it was meant to be experienced. Similarly it's not transformative to put a song on in the background of a stream. (Video game music is copyrighted too ;)) For it to be transformative the game needs to be transformed into something else.

>it reproduces a small fraction of the whole of the work - only renders of the final work not the models behind it, none of the code, only the fraction of the artwork that is interacted with and even then only in one of many possible renderings of it

There are plenty of let's plays which play through a whole game. In terms of fair use you could for example illustrate what a boss looks like when talking about it by showing a screenshot of a game. Using your idea of what partial means you could watch a whole movie. It's not like by watching a movie you get access to the raw audio and video clips, or the projet files used to edit it. You don't get the 3D models they used to make CGI.

>it doesn't compete with the original work in the market place

For some linear story based games you could make the point that it does compte because you can experience the whole story without needing to purchase the original.

Games are interactive, that's their defining feature.

Uploading a clip of you silently watching a movie the whole way through with the camera pointed at the screen would obviously be copyright infringement, but a let's play of a game does not convey the experience of playing the game.

If the entire experience (or even a large portion) of a game can be had via passively watching a recording of somebody else playing it then the developers haven't really succeeded at making a 'game', they've made a long-ass movie with extra steps.

And yes, maybe if you can show that your game is practically a movie that asks you to press a button every 5 minutes then you should be allowed to copyright strike commentary-less lets plays of it - but where exactly do you draw the line?

There are entire genres like visual novels, kinetic novels, story games, and even many triple a games that lean heavily on story and visuals rather than gameplay. Gameplay is only a small part of a great many “games.” In terms of budget too, many studios have a couple gameplay programmers and a million artists and rendering / audio engineers

Being the experience you're meant to have doesn't follow when you consider something like https://youtu.be/E_Z9lvWbfFU where a player is telling developers how theit game works, and they've got no idea how he's jumping through the levels.

The player playing is turning the game into something new. The name would be something like "a run"

Something like Minecraft is even turing complete. You could describe just about anything in your playing, including like writing a novel.

Also, the moment you've got a multiplayer game, the whole thing switches to how players interact with each other. A conversation in game doesn't become part of the owned product of the game maker

My point is that even speedrunners are just booting up the game and playing it. Something transformative would be something like taking the binary representation of the game and turning that into an image to be a piece of art. Even though it's a derivative work, it's no longer is just the game.

I'd say the biggest difference is personal usage vs. public broadcasting. You can watch a football game with friends but you can't show it in a pub without paying additional fee.

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