A gamemaker says it is filing a takedown notice for all videos featuring its current and future creations by popular YouTuber Felix "Pewdiepie" Kjellberg, after the livestreamer was caught using a racist slur during a weekend gameplay session.
One of the founders of independent developer Campo Santo tweeted over the weekend that he will be filing the DMCA takedown notice for any videos Pewdiepie uploaded of its current game, Firewatch, and any future projects the studio releases.
Glixel reached out to Pewdiepie, Campo Santo and the publisher and creator of PlayerUnknown's Battlegrounds but have not received responses at this time.
Pewdiepie has YouTube's current most popular channel with over 57 million subscribers and more than 14 billion views. Quickly gaining popularity around 2011, a lot of his content is based around "Let's Plays," videos where a personality plays through a game while offering their own commentary. Pewdiepie is known for his over-the-top attitude, irreverent jokes and goofy behavior. However, despite his large platform and popularity with children, Pewdiepie has previously found himself in hot water over making off-color jokes about mental illness, nazism and race.
One of his most contentious issues came when he uploaded a video of two men holding up a sign reading "Death to all Jews." After the video caused massive controversy, Disney cancelled its planned reality show with Pewdiepie, saying "he clearly went too far in this case and the resulting videos are inappropriate."
While streaming PlayerUnknown's Battlegrounds over the weekend, Pewdiepie called another player a racial slur saying, "What a fucking n---er." Quickly realizing what he's said, Pewdiepie appears to backpedal, laughing, apologizing and saying instead, "What a fucking asshole. … I don't mean that in a bad way."
We're filing a DMCA takedown of PewDiePie's Firewatch content and any future Campo Santo games.— Sean Vanaman (@vanaman) September 10, 2017
In the wake of these comments, Sean Vanaman, co-founder of Campo Santo, tweeted that the developer would be filing a DMCA (Digital Millennium Copyright Act) takedown of all current and future videos Pewdiepie uploads of its games.
"There is a bit of leeway you have to have with the internet when u wake up every day and make video games," he wrote. "There's also a breaking point. I am sick of this child getting more and more chances to make money off of what we make. He's worse than a closeted racist: he's a propagator of despicable garbage that does real damage to the culture around this industry."
Vanaman goes on to urge other developers to take similar strides, and says he will be contacting "folks much larger than us to cut him off from the content that has made him a millionaire."
The DMCA protects digital copyrighted work from infringement. While technically streaming and monetizing a game for a personality's own gain is copyright infringement, streamers are often allowed to do so as they please by publishers and developers because it's seen as free publicity for a game. In fact, Campo Santo has a page dedicated to information for people interested in streaming their game. On that page, the developer says they welcome livestreaming and that people can make money off of those streams. Something the developer appears to be rescinding in Pewdiepie's case.
"Unfortunately, the DMCA has been used to stop criticism and negative comments about the underlying work."
Michael Lee, founding partner at law firm Morrison & Lee LLP who specializes in video games and law, reiterated that a DMCA can legitimately be used to shut down streamed video game content for copyright infringement.
"Ideas are not protected under copyright but the expression of an idea is," Lee tells Glixel in an email interview. "Therefore, many parts of a video game are protected under copyright including the look of the game, the dialogue, and the music. The DMCA permits copyright owners to issue takedown requests of people infringing the copyright to a game. Technically, video game companies can issue takedown requests for any gameplay that is posted online and companies like Nintendo have done this in the past. However, companies have gotten a lot of bad feedback from issuing takedown requests and usually don't do so. Besides bad feedback, playthroughs drive a lot of new people to a game and therefore it acts as a promotion for the game. I, like many people, don't buy a video game until I see some of it played online."
While a developer has the right to file a DMCA to prevent the use of their content in ways they don't like, Lee says that means it can also be used in ways that aren't beneficial to consumers.
"A person can do and say whatever they want but it is the copyright owner's decision whether to shut that down," Lee says. "Unfortunately, the DMCA has been used to stop criticism and negative comments about the underlying work but technically this is allowable under the DMCA. Also a major consideration is fair use, using a portion of a video could be considered fair use but fair use is a decision left to a judge and jury and its a long and expensive road to get there."
Chris Schwegmann, an intellectual property litigator at Lynn Pinker Cox & Hurst, says that the law on the inevitable issue of fair use and free speech isn't well-developed in this particular area yet.
"It is well-established that the software code is protected by copyright law," he says. "There is also lots of authority to suggest that the playing of the games in a public forum (like on YouTube) is also protected by copyright law. But this area of the law is still being developed, and I don't know that any court has definitively answered the question.
"There is no easy answer regarding fair use."
In general, Schwegmann tells Glixel, the copyright laws allows others to use portions of copyrighted works, so long as they use them in a transformative way. So, for instance, a movie reviewer could use select samples of a movie they are reviewing and comment on them.
It's likely, Schwegmann says, that Pewdiepie would use the same argument if this were to go to court.
"But unlike the movie critic, it looks like he's just playing the video game in its entirely exactly the way it was meant to be played," Schwegmann says. "And I don't know that a court will agree that his 'commentary,' such as it is, is sufficient to qualify for fair use.
At play here is an issue much bigger than one game streamer and one developer. It raises the question of what control, if any, a game developer has in terms of the use of their game by someone to make money?
Schwegmann says there are three basic tools that can be used to stop the use of a game by a developer:
- In the context of a "public performance" like this example, the copyright laws provide for an immediate "take down;" the copyright laws would also allow a game developer to run to court for an preliminary and eventually permanent injunction;
- If someone tried to make money off the game by, for example, printing hats or t-shirts, etc., a game developer could put a stop to it with the trademark laws. In that case, the game developer could also run to court for injunctive relief, and could eventually recover all of the ill-gotten profits from those sales.
- I'm not an industry expert, but I imagine some game developers could "license" the games in much the same way Microsoft licenses its office products, the terms of which could put conditions of use on how the games are played.
Vanaman has made good on his promise of filing a DMCA takedown of videos Pewdiepie made of its games. As Waypoint points out, trying to view the personality's video of Santo's game Firewatch results in a static screen saying, "This video is unavailable."
In regards to the decision to file a takedown, Vanaman told BuzzFeed News, "I regret using a DMCA takedown. Censorship is not the best thing for speech and if I had a way to contact PewDiePie and take the video down, I probably would. He’s a bad fit for us, and we’re a bad fit for him."
Update: This story has been updated with comment from Schwegmann.
Update: This story has been updated with news that Campo Santo has filed a DMCA takedown, effectively removing one video from Pewdiepie's channel, as well as with further comments from Vanaman.
This story is developing.