While it would be nice if the legal system clarified the issue, I would lean towards that copyright can not be expanded to cover self recording. Record of that kind will naturally include the environment, and as such, the legal system need to ask what the intention is and what conflict of interests may exist rather than a black or white view. If someone record themselves eating at a restaurant then the music in the background and the painting on the walls should not dictate the legal status of the recording. Same should hold true for any recording where the intent is not to record the works of others but rather the person doing the recording.<p>There is a similar legal uncertainty revolving cosplay, and the details are very similar. The content of movies and games is the inspiration of the costumes, but the intent is not to compete on the same market that the games and movies operate on and there really should not exist any reasonable claim of conflict between creators.
Ultimately I'm not too worried about this, simply because of how the money flows. Twitch is owned by Amazon. YouTube is owned by Google. If it ever comes down to copyright infringement, Google and Amazon both have billions of dollars to lose by not defending the creator from the lawsuit (they don't want a negative precedent affecting their bottom line). So both of these companies could profitably invest literally billions of dollars defending the creators. Thus, I'm not worried. Not only is fair use a reasonable argument, they can simply make the legal proceeding unprofitable for the game companies. Reputations are at stake as well, which is why you only see tiny companies you've never heard of DMCA-ing streams.<p>The game companies too have to like videos and streaming. I have only ever played games that I've heard about on YouTube and Twitch. I imagine I'm not the only one.<p>Disclaimer: I do <i>not</i> work for Google anymore, so this is even more of my own opinion than usual ;)
The situation reminds me of the famous Casablanca quote about gambling.<p>So in 99% of cases, streamers have nothing to fear because their activity is beneficial for all involved parties.<p>Until they do something wrong, get bad press or otherwise manage to piss off the developers. Then those will be shocked, <i>shocked!</i> to find that this stream is conducting copyright infringement on their game - and the streamer is basically dead.<p>Whether or not this is a workable state for the industry, that's not how law is supposed to work.
I am a big fan of streaming, I watch mostly Twitch but have tuned into live Youtube presentations. I also consume more than a few Let's Play videos. I use streaming I watch on Twitch mostly for entertainment and at times "how to play" or "would I want to buy" and Let's Play stuff on Youtube for "now that I have it, how in the hell do I do..."<p>I do know that twitch recorded streams can have all audio portions deleted if they play music. since both the streamers voice and the music they play are bound together it makes for near useless videos. Many streams on twitch are behind "mature" flags requiring you to self declare age to watch.<p>So if music can result in a muted stream I fully expect a developer can claim copyright of the game music/sounds and mute a stream that way. I am not 100% in either camp but I do lean towards the developers being able to maintain their ownership which could preclude someone profiting from it.<p>There are many good streamers, personalities who no matter what they play the game is almost secondary to engaging their audience. They however tend to attract sponsors.<p>I do think there is no question of fair use in review videos but Let's Play videos may be a different issue. It all comes down to, do we apply the same rules to protecting music and movies to video games or not. To me games are as much creative expression as any movie and at times more so.
I'm reminded of another copyright issue from around the last turn of the millennium -- player pianos. Now, strictly speaking, I don't think player pianos are quite analogous to videogame streaming. However, I think a good solution for the legal uncertainty would be similar to Congress' 1909 reaction to the 1908 Supreme Court decision -- specifically, compulsory licensing. Anyone can record or perform a cover another's song, and so long as they pay the statutory licensing fee, they're in the clear, and don't need to seek permission of the original copyright holder.<p>(Those of you whom are more versed in copyright law, if I'm getting this wrong, please correct me.)<p>So, if streamers needed only worry providing notice and a small check to the copyright office for the Let's Play streams they'd be preforming this month, I think that'd be workable. As it stands now, a streamer needs to worry whether GameFun Studios is going to sue him if they don't like the opinions expressed in his performance while playing Platform Jump 3. That strikes me as a bit less workable.
This really feels like the 21st century Warhol Vs Campbell's Soup battle. Until the courts rule, both sides are going to say "obviously we're right because...". It doesn't matter what makes sense, only what has better legal precedent.
So long as the hosts of the video are commenting on the game, or making fun of it, or elaborating on the art in some meaningful way, that should fit the definition of <i>fair use</i>, shouldn't it?<p>If they're just playing through the game without comment, than maybe not so much? And then were do speed runs fit in?<p>Honestly companies should really embrace this. They get promotion on platforms like Twitch. Watching the game isn't the same as playing it, and it could encourage people to buy the game. I honestly only watch games I've played before, allowing me to examine the art and graphics without having to be involved in it again.