Should PewDiePie be blocked on YouTube

Why it is wrong what is being done now against PewDiePie

Again, PewDiePie has gone too far. After the YouTuber Felix Kjellberg insulted another gamer in the live stream on Sunday with the N-word and then burst out laughing, a game manufacturer resorted to a drastic and controversial means against the YouTube star: Sean Vanaman, co-founder of the developer studio Campo Santo wrote on Sunday on Twitter that he would submit a "DMCA takedown" against PewDiePie. This is a kind of copyright injunction that prohibits the YouTuber from streaming other games from the studio.

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Because in the video with the N word, PewDiePie also had the adventure game Firewatch played by Campo Santo. Since Campo Santo holds the rights to the game featured in PewDiePies Stream, such a copyright injunction can ultimately result in the entire video having to be taken offline. For the YouTuber, all clicks would have disappeared in one fell swoop, and he would no longer be able to collect advertising money with the video. Other gamers and game developers have also criticized PewDiePie for its racist failure, but Campo Santo's action goes further than just verbal criticism.

The Digital Millennium Copyright Act (DMCA) is a US law of 1998 that provides the legal basis for the legal prosecution of copyright infringements on the Internet. Even if there is no question that Kjellberg's statement is inexcusable, Vanaman's reaction to this incident underscores a problem that has been simmering on YouTube for a long time: the rights holders always have more leverage on the platform and allow the interaction of DMCAs and internal processes on YouTube they keep blocking videos that don't suit their needs.

Game developers only exercise their rights selectively

In February 2016, Kjellberg published a video on YouTube in which he Firewatch of Campo Santo plays. This video is no longer available since yesterday, Monday. If a video is blocked by YouTube for copyright infringement, a notice will usually appear on the page. Since Kjellberg's video does not contain such a reference, it is possible that he himself removed the video or that it is no longer accessible for some other reason. YouTube did not respond to our request on the subject.

"There are some publishers and game developers who don't like criticism and have videos that they don't like removed immediately," lawyer Michael Lee told Motherboard. The co-founder of the law firm Morrison / Lee specializes in trademark and copyright law and has represented YouTubers in court in the USA in the past. "With current copyright law, it will stay that way. The biggest problem with this case is probably that the DMCA is being used to restrict freedom of expression. This is a big cause for concern, but unfortunately this is how copyright can be used . "

A look at the official homepage of Campo Santo shows that Campo Santo does not have anything against streams Firewatch. This is where the game developers assure gamers that it is perfectly fine if they find themselves playing Firewatch film and even earn money from the streams.

Image: Screenshot Firewatch

Lee explains to us that any gamer streaming a video game on Twitch or uploading recorded streams to YouTube could theoretically be infringing copyright law. However, in most cases, game studios do not want to have these videos blocked on the basis of the DMCA, "because that gives really bad feedback," explains Lee. At the beginning of the year, for example, the developer Atlus put some restrictions on which parts of their popular role-playing game Persona 5 were allowed to be streamed and which were not. The reaction of the fans was so negative at the time that Atlus relaxed the rules again and even apologized.

Streams are good for business

In addition, game manufacturers benefit when a popular streamer plays their games. A positive stream can quickly catapult the game to the top of the sales charts. That's why most studios don't apply for DMCAs when their game is advertised, Lee explains. It would also be a hassle to keep track of every gamer who uploads a gaming video. Vanaman also admitted on Twitter that his company has likely benefited from Kjellberg's streams and 5.7 million views in the past.

Legal minefield: How YouTubers can defend themselves against bans

Most YouTubers move in a gray area with the use of copyrighted content. Because the US-American copyright allows a so-called "fair use" in some cases. There is no such regulation in German copyright law, but it is analogously comparable with a legal assessment as "appropriate use." This can apply, for example, if a protected work is criticized or remixed and excerpts of the material are shown as a quote. Since Kjellberg comments on the video games in his videos, he could possibly invoke "fair use" in court - his chances of success would still be slim. Since there is no official definition for fair use, it is a lengthy and costly matter to take legal action against DMCA bans or copyright lawsuits on this basis.

"There is a way for streamers to object to DMCA claims when they invoke fair use," explains video game attorney Stephen McArthur. "This option is rarely used. The streamers who actually went to court were quite successful, but that probably distorts the perception, as only a few take this step at all."

The couple Hila and Ethan Klein, who run the popular YouTube channel H3H3 Productions, won a case against another YouTuber, citing "fair use", but negotiations lasted over a year. YouTubers like PewDiePie and H3H3 upload numerous videos on current topics every week, so legal proceedings against the blocking of individual clips are usually too expensive and time-consuming. Even if they win a lawsuit, the video would be completely irrelevant at the time of the judgment.

Also on the motherboard: when gamers become guinea pigs

Even if a streamer could legitimately invoke the "fair use" argument, large companies like Alphabet, which owns YouTube, almost always submit to a DMCA request from rightsholders. "If you don't remove the content," Lee explains, "you could be sued for contributing to the copyright infringement. I've sent DMCA requests to YouTube myself, and so far they have complied with each and every one of them."

Kjellberg will also not be able to claim that the majority of the streamers who play Firewatch have filmed, have not been banned. Lee compares this situation to a speeding ticket: You can't avoid the penalty by arguing that not everyone who drives too fast will be caught. "I'm very sorry that your video was banned, but that everyone's breaking the law is no excuse," said the lawyer.

Why a DMCA is not the right remedy for hate speech

As the DMCA is formulated, game developers are currently free to choose when they want to assert their rights and when not. As a result, sometimes only streamers who post negative reviews or who a publisher doesn't like are punished, explains Lee. Many refer to these cases as DMCA abuse, and some civil rights activists also see them as a violation of free speech.

To be clear: PewDiePie shouldn't get away with it. The YouTuber has repeatedly attracted negative attention through racist or anti-Semitic messages that reach his 57 million subscribers - many of them children. Kjellberg has spoken out in the past that the media misunderstood his joking comments or took them out of context. But he cannot justify the latest case with this argument either. What he threw at the head of the other gamer in the uncut livestream is not excusable.

Hate comments on large internet platforms are an increasing problem. Better reporting rules and mechanisms are urgently needed to counteract this, but using copyright arguments is the wrong way to go. Because then the entire power is placed in the hands of actually uninvolved third parties and the streamers, whose content is removed from YouTube or other platforms, have almost no opportunity to defend their actions.

Even Sean Vanaman recognized this problem: "I wish we had a better way to distance our work from hate speech," Vanaman told BuzzFeed News. "I'm sorry I had to resort to a DMCA ban. Censorship is not the best tool and if I had a way to contact PewDiePie and take the video offline, I would probably do it. It just doesn't fit us and we do not suit him. "

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