Game Developer Tries to Silence YouTube Critic, Discovers Streisand Effect

Fair use! Fair use! Come at me, bro!ScreenshotA company called Wild Games Studio released an action/survival PC game called Day One: Garry’s Incident. The game does not appear to have been received well. There’s a bit of a glut in this particular genre right now, and a game in this vein needs to stand out to get attention. Apparently Garry’s Incident now does, but certainly not in any way the game developers would have hoped.

The game is getting terrible reviews, and YouTube is host to a ton of them. The reviews may actually be a little bit of a challenge to find now thanks to Wild Games Studio’s response to one particular review. A gentleman by the name of TotalBiscuit (no, really, that’s his … okay, fine, his real name is John Bain) is probably one of the most successful video game critics on the Internet. His YouTube channel boasts just shy of 1.3 million subscribers. He sampled the game on October 1 and did not find it enjoyable (Sample of response to the game: “Screw everything about this!”).

Video game reviews on YouTube allow critics to do something they can’t do through blog posts or print reviews: They can actually play and demonstrate the game in action in the video. This is a boon for consumers looking to spend their game money on a quality product as the game market grows and grows and grows. It’s also a boon for good game developers, as there’s nothing  like the sight of a reviewer with a big audience enjoying your product to push folks off the fence in your favor. For bad games, though, it has the potential to devastate more than those old-fashioned reviews, as video watchers can actually see how terrible the problems are.

Wild Games Studio made their problems even worse by trying to retaliate against Bain. They made a copyright claim against him on YouTube, using a flimsy excuse that he monetizes the videos with advertising (Bain manages a living with his game journalism and announcing) and thus cannot use their assets without their permission. The studio succeeded. YouTube yanked the review. Furthermore, YouTube’s copyright-protection system threatens users that their channel will be deleted if they get three of these takedown claims. In Bain’s case, that would result in the removal of hundreds of videos.

Obviously, the takedown request was a load of crap. They provided Bain access to the game in the first place, knowing he was a critic and knowing he was going to make a video of his experience, only acting when they didn’t get the response they hoped for. It’s the equivalent of a movie studio trying to block the airing of a bad movie review on an entertainment program because it used the footage the studio provided to them.

But you don’t screw with people who are popular on the Internet. Imagine earning the ire of 1.3 million avid gamers. They flooded the Metacritic page for the game and dragged the user score down to .5 out of 10.

After a massive backlash, the company has backed off and apologized, withdrawing their copyright complaint against Bain. The video is now back on YouTube. For the company, though, the damage is done. Putting the game’s name into a Google search now brings up several different stories about the copyright takedown scandal right near the top.

The Streisand Effect claims another victim. And we all get a reminder that copyright issues are still a terrible mess on the Internet, and the reckless enforcement methods threaten legitimate livelihoods, not just "pirates."

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  • Stormy Dragon||

    They made a copyright claim against him on YouTube, using a flimsy excuse that he monetizes the videos with advertising (Bain manages a living with his game journalism and announcing) and thus cannot use their assets without their permission.

    I'm not sure how correctly stating the law qualifies as a "flimsy excuse". It may be a bad law, and the studio may have been stupid for taking advantage of it, but it's not really going out on a limb to claim that a 20 minute video doesn't really qualify as an excerpt for the purposes of fair use.

  • Hugh Akston||

    A video of someone playing a video game is not a video game. Just like a picture of a hot girl wearing a tee shirt is not a tee shirt. So copyright complaints don't really apply here.

  • Brandybuck||

    It may be considered a public performance however, and that is covered by copyright law in the U.S. Of course, every other game on the market has complete playthroughs and lets-plays online, so it's accepted practice.

  • sticks||

    but aren't games like 300 hundred hours long now? seems fair to me. ANd was the 20 minutes of video all the game or game mixed with talking head?

  • Scott S.||

    Because they gave him permission and free access to the game to use post a video and then withdrew it when they saw the content?

  • Stormy Dragon||

    Barring some sort of contract to the contrary, they're within their rights to withdraw their consent at any time for any reason. If I invite you to a party at my house and half way through decide I no longer like being around you, I'm not obligated to let you stay until the end on account of the previous invitation.

  • Scott S.||

    I feel to see any sort of relationship between trespassing laws and copyright regulations.

  • ||

    Both are the law.

    One does not have to like Youtube or this particular game developer to recognize what they did was legal.

  • Agammamon||

    Eeeexcept, what the publisher did *wasn't* legal.

  • ||

    how so?

    Also who is suing them and who is prosecuting them?

    Oh that is right...NO ONE IS.

  • ||

    No one is because they withdrew their claim. Bain's use of the game material is covered under fair use which allows for criticism using copyrighted material. It's like suing a movie reviewer (Siskel & Ebert, anyone?) for using movie clips during a televised review that the reviewers get paid for. It's completely legal.

  • Almanian!||

    My fucking GOD you're a moron.

    Withdraw your consent to use it, take your ball video and go home? Fine.

    Try to trump up charges against me - FUCK YOU - you offered it to me and don't like the result. But don't try to fuck with me.

    Given where they went ultimately, pretty clear there was no legit complaint.

    Now why don't you run along and play in traffic, Stormy.

  • ||

    Try to trump up charges against me - FUCK YOU - you offered it to me and don't like the result. But don't try to fuck with me.

    charges?

    The developer did not sue or pursue criminal charges. They simply used youtube's policy.

  • Agammamon||

    Youtube's policy is based on *legal* requirements, including the DCMA provision requiring websites to takedown 'infringing' materials or face civil and criminal penalties.

    The key here is 'infringing' - if it doesn't infringe there is no requirement to take comply with a DCMA take-down order. Unfortunately, ignorance or uncertainty are not defenses and so websites pull the trigger fast on these things and let the dust settle where it will. Lot's of non-infringing content is caught in the explosion.

    So, yeah - charges *were* leveled.

  • ||

    You should probably go and watch the Totalbuiscut video.

    He specifically targets youtube and google and criticizes their policy.

    Not even the youtuber victim agrees with you.

  • ||

    Corning, he specifically mentions that the law is on his side and that his behavior is legal.

  • ||

    Here you go:

    17 U.S.C. § 107

    Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

    the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    the nature of the copyrighted work;
    the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    the effect of the use upon the potential market for or value of the copyrighted work.

    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

    In my opinion, the only possible issue here is the fact that TotalBiscuit is British while the developer is Canadian, however YouTube, which is hosting the content, is an American company.

  • Sigivald||

    He doesn't need their permission.

    Looking at 17 USC 107, and the existing case law, there's no "law" saying "you can't do reviews if you're making money [without our permission]"*.

    Long excerpts shouldn't be a problem in this case, given that unlike in a literary review, video gameplay reviews have continual criticism overlaid directly over the content shown, and driven by it.

    That and, of course, the gameplay shown on screen is, outside of cutscenes, unique to that instance and player, in this case. There's no substitutibility in the consumer's world such that this review is competing with the company's product; no amount of video game footage "replaces" playing the game.

    (* The legal analysis is unanimous about this one; there's a "commercial" test in the Code, but it's about competing products, not making money off selling ads while doing reviews.

    Precedent is clear on that one.)

  • paranoid android||

    There's no substitutibility in the consumer's world such that this review is competing with the company's product; no amount of video game footage "replaces" playing the game.

    Unless it's a David Cage game.

  • Agammamon||

    That . . . doesn't even apply here.

    A better analogy is that I give you something and then want to take it back when I see that you're not using it in a manner I approve of.

    Once something is already given you don't get to take it back - its not yours anymore.

    In any case - even if they withdraw permission to *access* the game in the future, they don't get to retro-actively withdraw permission to access the game in the past. Anymore than kicking someone out of your house party means they aren't allowed to tell anyone about their opinion of the party.

    Plus, reviewing games is a legitimate fair-use thingy. To complain that this guy shouldn't be able to monetize his reviews is the same thing as saying that Siskel and Ebert (or Kurt Loder) shouldn't be able to write movie reviews for money either.

  • OldMexican||

    Re: Stormy Dragon,

    I'm not sure how correctly stating the law qualifies as a "flimsy excuse".


    The game itself is not the one being copied with copies being sold for a profit. The reading of the law makes an acid trip look like a walk in the park. It's a stretch, to put it more succinctly.

    What was being copyrighted, the game or some images of the game being played? If there's an incarnation of a bullshit law, it is copyright law.

  • Acosmist||

    Both are copyrighted. You didn't know this?

  • Sigivald||

    The images are, indeed, copyrighted.

    But they're a lot easier to get defensible fair use on than the game itself, exactly because they don't substitute for the game or hurt the market for it.

    People would buy "a copy" of the game itself, hurting the publisher's market, and failing part 4 of the 107 test.

    But nobody's going to replace playing the game with watching some video of someone else playing it and talking about how much it sucks - at least not this sort of game; that might be infringing on some sort of pseudogame where the only point is Exploring Beautiful Landscapes, say.

  • Ornithorhynchus||

    The use of excerpts in a review has nearly always held up in court as Fair Use. The only significant exception to this that I know of is when the 'excerpts' are excessively long. I don't think there's any clear legal standard as to how long excerpts can be, but for a modern video game, twenty minutes is most certainly acceptable.

  • Rich||

    There is no sugarcoating it -- the administration is not unfamiliar with the Streisand Effect.

  • Harvard||

    I'm confused on the "Streisand Effect".

    Bain has a huge Jewish nose or does the head of Wild Games Studio? Shackford perhaps??

  • TheTreeOfLiberty||

    There is no sugarcoating it, reviews of the game are not overwhelmingly positive.

  • Bam!||

    I'm waiting for a sugarcoating-it/Cleveland-browns/you-know-who-else trifecta.

  • TheTreeOfLiberty||

    There is no sugarcoating it: those memes have become somewhat popular on this website.

  • OldMexican||

    There's a bit of a glut in this particular genre right now,


    Especially since nobody has been able to match the entertainment value of Resident Evil IV and Dead Space.

  • ||

    I think he means open world survival not survival horror.

    Think Minecraft Cubeworld and Day Z not linear stories like Resident Evil and Dead Space.

  • Agammamon||

    And, quite frankly, Dead Space isn't anywhere as good as people make it out to be, and the franchise got more 'meh' as it went along.

    If I want jump-scares from enemies I *know* are there but can't affect until some trigger it tripped then I'll just go back to Doom 3.

  • ||

    What bothered me about totalbuiscut was he kept claiming censorship when in fact totalbuiscut is free to post his video elsewhere.

    Youtube is an owned property owned by a private entity. They are free to control what gets put on their property. What totalbuiscut is claiming is if he puts a sign on my front lawn and i take it down that that is censorship. It is not censorship.

  • Scott S.||

    Ah, but YouTube is censoring content because of fears of federal crackdown/lawsuits.

    It's such an odd grey zone. I refer to it as "soft censorship." YouTube isn't censoring because it doesn't want the video on its site. It's censoring because it's afraid of what could happen to them via application of federally enforced regulations.

  • ||

    More likely Totalbuiscut is a brit and has no idea what free speech or censorship means.

  • Nooge.||

    He is from England, but he lives in the States and is married to an American. He probably knows more about free speech than the average Brit.

  • Irish||

    Ah, but YouTube is censoring content because of fears of federal crackdown/lawsuits.

    Sure, but the government hasn't actually attempted to crack down. If the government brought suit over this, then you'd have a good point here. As it stands, the government hasn't actually done anything. Youtube just decided they didn't want the hassle.

    I don't think a private group can censor a private individual in any meaningful definition of the word. If a T.V. channel decides not to pick up a pilot because it's too violent, would you say they've censored that T.V. show?

  • Agammamon||

    Uhm, the Federal government *has* threatened some pretty dire punishments for any site that makes the wrong decision regarding DCMA takedowns.

    So, technically the government hasn't attempted to crackdown - they've just threatened to if you screw it up.

    That, if nothing else, has a chilling affect on free-speech.

  • np||

    Yeah, Youtube has to comply with takedown requests first. They can't counter the requester saying they believe it's an invalid request or claim fair use, because if they're wrong, they'd be held complicit in copyright infringement.

  • ||

    You can complain about censorship by a private entity, you just can't use government force to do something about it.

  • np||

    There is such a thing as private censorship, since the word itself does not imply government censorship alone (else, why would have to qualify it with "government censorship"?).

    Blurring of nipples, bleeping of swearing of someone's else content when there are no laws forbidding you are all examples of private censorship. Censorship is simply discrimination by speech. But given private property, it is a right that can be exercised for your own property.

  • Habeas Dorkus||

    It's astounding how many people simply cannot grasp that fundamental concept. I always tell people, "Censorship is what government does" -- and it's as simple as that.

  • Habeas Dorkus||

    "Private censorship" is a contradiction in terms. Censorship, legally defined, is using government power to squelch ideas, images and thought.

    I misread your original post, np. ... You have a hard times with rudimentary concepts, don't you? Either that, or you're being deliberately obtuse.

  • Habeas Dorkus||

    Is it "censorship" when a newspaper refuses to run a full-page advertisement for a half-price rubber-dildo sale? No. It's called discernment, and it logically is derivative of private property. You have no right to post Obama signs on my lawn.

  • Irish||

    You know how I know that Garry's Incident sucks? The "positive" reviews on the Steam page.

    “Day One: Garry’s Incident brings its own undeniable charm with the main character being an alcoholic slob”
    Kotaku

    “the concept is a compelling one, it's definitely a game to keep your eye on.”
    OverclockersClub

    “Day One: Garry's Incident is one of the most interesting independent projects being developed in Canada right now”
    ShogunGamer

    The first one only mentions the character's alcoholism, the second isn't even a review since it just says it likes the 'concept' and the third has to hedge by saying it's one of the most interesting independent projects being developed in Canada.

    If those are the positive reviews, a game is probably terrible.

  • Paul.||

    Canada... I knew it.

  • SusanM||

    As this link shows, it's not unheard of for worse to happen:

    http://www.escapistmagazine.co.....2-Dog-Days

  • GILMORE||

    I don't play video games.

    However, I do watch video game reviews.

    Why? What? That makes no sense.

    I Know.

    Because the reviews I watch.... are by RAZORFIST

    http://www.youtube.com/watch?v=DpbB14fr_gI

    Also, see his movie reviews of Out For Justice, Commando, Cobra, Invasion USA, 'Street Fighter: Legend of Chun Lee' etc. Please, just do.

    http://www.youtube.com/watch?v=5uwT26MSXIc

  • Capo||

    Don't mess with gamers. These are people with the stamina to click click click on a computer for more than 12 hours straight. They will destroy you.

  • Habeas Dorkus||

    The undecided copyright question is whether video of someone playing a video game amounts to copyright infringement. Unlike movies, the video game is user-controlled. The courts will probably rule on this critical question soon, since YouTube and other video-hosting sites are filled with video game footage.

  • cavalier973||

    Hey, someone put up my favorite scene from Rain Man on Youtube again.

  • cavalier973||

    For those with a more nostalgic bent with regard to video games, there's this guy.

  • Sunken Idaho||

    His early stuff was amusing and genuine. After that? Wow, he got bad pretty quick. Especially those fucking skits. Seems like a nice guy though.

  • -Umbriel-||

    I've been hearing the term "Streisand Effect" batted around of late, but this is the first time I'd ever looked up the origin. I'd always assumed that the term was coined for the opposite reason -- that she never officially denied rumors that she did a porno movie before her career took off, or took any action to try to suppress the movie in question, because doing so would just have attracted attention to the problem.

    Perhaps she cunningly sued these photographers and caused this fuss to subvert the real origin of the term...

  • Paul.||

    Wild Games Studio made their problems even worse by trying to retaliate against Bain. They made a copyright claim against him on YouTube, using a flimsy excuse that he monetizes the videos with advertising (Bain manages a living with his game journalism and announcing) and thus cannot use their assets without their permission. The studio succeeded. YouTube yanked the review.

    There's a new trend with this going around on the internet, and some big players are involved. Nintendo, if I recall, is attempting to (or has successfully) claimed that any capture video of their games becomes Nintendo's property.

    Nintendo explained that "for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips." Apparently, in practice, what this means is that certain YouTubers who were monetizing extended Nintendo gameplay videos will now lose their advertising income stream. Instead, YouTube will share those revenues with Nintendo.

    http://www.gamasutra.com/blogs.....ntendo.php

    This is a deeply concerning trend and I hope that users fight this.

  • Nooge.||

    TB has done a lot of smaller, indie developers a lot of good via his WTF series. Most of his videos get at 100k views, and at least some of those people are interested enough to buy a game if he recommends it. People who make shitty games and offer them for his opinion should know what they're getting into, though.

    I find him to be charmingly self-effacing, funny, and honest. Always enjoy watching his vids.

  • JidaKida||

    Scampy Jo Jo is not going to like that.

    www.AnonWonders.tk

  • Sunken Idaho||

    After over five years on YouTube I finally got hit by one of these. I did a movie review (I don't monetize anything) that can still be seen on Vimeo taken down by the director/lead actor/head caterer for a copyright violation. It was a less than flattering review, however, I don't like the fact that I've can lose my account as if I was merely copying the man's film and then charging people to view it on YouTube. A lot of these copyright cases have little to no merit. A movie review doesn't attempt to copy and replace the original so his case became his word against mine.

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