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Take a stand against Bill S.978 – The Followup

First and foremost, I want to clarify that my intentions were not to alarm, but to inform. The focus is the uncertainty surrounding the issue of Bill S.978 (evident in my careful usage of “could”, where all possible instances of “will” were not used). I want to thank those who read my original article, and have taken action. I had absolutely no idea that this would blow up so quickly.

I also want to thank those who disagreed with my article. Interesting claims were made that I might have misinterpreted certain components. I will not only address these concerns, but more importantly, give clarification to whomever might’ve been made more confused, or upset, upon reading the plethora of comments.

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First off, some have brought up Section 2319 of Title 18, stating that punishment for copyright infringement has been around for a while, and S.978 is meant to be an amendment of that. Indeed. But here’s the thing, if you read what’s outlined in Section 2319 of Title 18, the key phrase is distribution. If you’ve uploaded a movie, NIN’s Year Zero, a TV show, or bootlegged games, of course, you could be fined or sent to prison. We’ve already heard tales of illegal distribution. It also makes reference to Section 506 of Title 17 that clarifies this. But the key phrase in S.978, that some surprisingly missed, is public performance. There’s no mentioning of this in both of these. If you don’t want to read them over, open the links, ctrl ‘F’, and type “performance”. Nada. While a movie, comic book or TV show is the same experience amongst all, a video game is not. When you’re playing a game, you’re exhibiting personal capabilities and choices in interaction; you’re performing, not distributing. This is the element being introduced.

As a reminder, under copyright law, the performance of an audiovisual work, without the copyright holder’s authorization, is punishable by a fine. Game companies have always had access to this option, so we’ve already been at risk. But they’ve chosen not to pull that trigger. Those who stream footage of games for Let’s Plays, tournament footage, a mere comedy sketch prop, etc. are pretty much advertising the games for their respective companies, at no charge. Companies like that. Why ruin it?

Also brought to my attention is the classic debate of fair use vs. copyright law. Below is a snapshot of the fair use guidelines:

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While the opening paragraph is pretty straightforward, it’s followed by a list of “factors to be considered”. Reading them, they could be translated in different ways; a gateway for case by case evaluations and a clashing of theories. A line has been drawn between those who argue that fair use saves the day, and those who doubt its mettle against copyright law. I’ll admit that I don’t know which side is correct as each provides their own set of compelling, and valid, points; too much gray. The fact that there is a divide only emphasizes the uncertainty of the matter, and that’s been my main point. Furthermore, when’s the last time we heard about a case involving fair use vs. copyright law regarding video games? None comes to mind. There have been such cases regarding the other mediums, with each case resolved differently. But the fact that we don’t have a past incident, involving video games, to reference draws out the uncertainty of the matter, as well as our educated guesses.

Another point brought to my attention, this portion of Section 506 of Title 17:

“(1) In general.— Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title18, if the infringement was committed—
(A)for purposes of commercial advantage or private financial gain;”

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Because of how it’s worded, some argue that it’s impossible to get in trouble for uploading gameplay footage, as long as your intentions don’t involve profit. I was also advised that it’s simple to disprove such intentions just by not making a profit. Pop quiz: what do sites like Facebook and YouTube have in common? Answer: Ads. In his follow up article, David P. Graham wrote:

Another common question:what if I’m streaming for free and not trying to make any money, am I safe then? That depends. The bill would be built into a law that already applies only when an offense is committed “for purposes of commercial advantage or private financial gain.” But what does that phrase mean?

Obviously people who are trying to make a business are implicated. People who are trying to support their hobby or charity etc by making money are also implicated, since the law doesn’t require profit, only that the purpose of the performance include financial gain of any kind. Even people who don’t necessarily intend to make money might be uploading, streaming, or embedding on a site that has advertisements, and the very presence of those ads could imply that the purpose of the performances is financial.

Do I think it’s silly that, if S.978 passes, and I upload my gameplay vids on YouTube as a non-partner, but just because there’s an ad on the front page about a new movie, or a hybrid car, which I have no personal involvement in (nor do I care), implicates me as someone with profiting intentions? Hell yes! But with a good lawyer, if they can somehow make a case out of that, back it up (with help from open-to-translation guidelines), and gets the court’s green light, that’s game. Whether it’s a win or lose case, having to go to court to play ‘your word against theirs’, sucks.

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There’s also concern about S.978’s ten strikes within 180 days, if you incur:

‘(B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or
‘(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;’

Some find it impossible for a simple set of videos to accrue such amounts. That’s if you’re going by “total retail value of the performances”. “Total economic value” and “total fair market value of licenses to offer performances” are up to the copyright holder to determine, not you or anyone else. Say a copyright holder was brought into a federal case, and asked to gauge the total monetary value of your ten YouTube performances. It wouldn’t be based on just the game, or possible ad revenue, but also based on how much they feel it’s worth to have their work, made to be enjoyed privately, but recorded with your personal interactions, and uploaded as a live performance to garner an audience. They could easily say that it exceeds $2,500 in total economic value, or it’s over $5k in total fair market value for a public performance license. Why? Like the topic of fair use and video games, this has never been brought to court. Therefore, an estimated range has never been unanimously agreed upon and set in stone. Furthermore, companies that do provide licenses for public performances are rare, and the differences in license fees are astounding. Some don’t even charge, others have quoted above five grand. This is relative to my concerns of the possible effects on event coverage for E3 or competitive tournaments.

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I also want to clarify that it’s very unlikely that the government would make streamer hunting common practice. 99% of the time they wouldn’t care, even if they’d no longer have to discuss it with copyright holders. However, tacking on the harsh 5 years jail time possibility can draw quite a bit of attention on the 1%. Being marked as a felon, and suffering the repercussions after release, is not funny. The mere trepidation alone, planted from second guesses attributed to this severe punishment, may cause major slowdown amongst consumers and the industry; potentially damaging the gamer community. To illustrate this point, and lighten the mood, I leave you with something familiar.

Don’t forget to petition here or write to your congressman. Remember, you’re not just gamers, you’re people who can continue to make a difference, and that’s my other point.

Shout outs to David P. Graham, a.k.a. UltraDavid from Shoryuken.com, who wrote his piece initiating awareness, Thunderbolt’s Evo for bringing it to my attention, and DSP, for his great videos on the subject.

The author of this fine article

is a Staff Writer at Thunderbolt, having joined in August 2010. Get in touch on Twitter @S_Chyou.

Gentle persuasion

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