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Comment by gjsman-1000 | Hacker News Reader

Not really. Fair use does not really legally exist. It exists primarily as a defense after you’ve already been sued - which is also why there is no official codification of what fair use actually is.

Also, as Nintendo can argue, imagine this was a movie. Imagine it was a movie being shown on screen for two hours. That would be case closed. Now imagine it was a movie recutting competition. Again, case closed. So what makes a tourney special? In the eyes of the law, a judge might say, absolutely nothing.

You might argue, “well, there’s skill being applied, whereas a movie is passive.” No dice there - just because you put effort into your copyright violation is meaningless. You might argue a movie is a full work when a video game only displays a subset - but do you think you could publicly perform 30 minutes of The Lord of the Rings and be OK? Of course not.

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Interesting way to put it, but I'm still not sure that quite applies. The game is a multiplayer game intended to be played with other people. Commercial endeavors change with movie viewing. It's implied that single entity can own a single copy while charging admission to profit from their single copy of the movie. Meanwhile, movie companies (mostly) don't care if I play _The Lord of the Rings_ in a private setting to a small audience of known people.

I would argue that the competitive nature of tournaments implies that the entrants all have a copy of the game along with hardware to run the game (emulation withstanding). The only thing is streaming the event. Even then, what would be the difference between streaming a tournament and streaming myself or a small group of friends playing? It doesn't seem like that would infringe upon the core purpose of the game.

The law is fairly immune to mental gymnastics and mind games, regardless of what the dramas indicate.

For movies, it’s fairly simple and widely understood you are buying a license for private viewing. While there’s some room for interpretation, it goes without saying that if you are inviting strangers and/or charging admission and/or running advertising, you’re inviting scrutiny.

Also, let’s just be honest, the moment you run advertising for anything, it’s almost impossible to argue this is not a publicly available event. Public is also fairly broad - collages have to license every movie they want to show to a classroom, for example. My college paid over $2000 to Netflix for a single showing to Math Club of one movie for about 7 viewers.

> The game is a multiplayer game intended to be played with other people

The law only cares about copyright. What it is, is irrelevant.

As for your point about how the participants must have bought the game - I don’t think that would work either. Imagine you ran your unapproved Lord of the Rings convention. You also had the movies playing on repeat the whole time. I don’t think arguing that “only people who have bought the movies have any interest in being here” would protect you.

> Fair use does not really legally exist

literally in the text of the DMCA itself

No, it simply clarifies that the DMCA cannot be used to say that fair use does not exist anymore, solely in a potential copyright lawsuit, but that DMCA provision does not apply in a DMCA circumvention lawsuit.

This is also why this carve-out is practically useless and also does not define guidelines for fair use.

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