Is playing video games on YouTube a copyright infringement? No one wants to find out

YouTube superstarPewDiePieisknown for his his bombastic personality and unfiltered opinions on video games andhis latest social media flare-up may have unintendedconsequences for the games industry at large.

Earlier this month, PewDiePie whose real name isFelixKjellbergwas caughtsaying the n-wordwhile competing in a game ofPlayerUnknown'sBattleGroundsduring a livestream on his YouTube channel.

Many gaming fans and developers voiced their displeasure andnotedit wasn't the first time this year he hadattracted controversy for a racial slur.His most loyalfans, however, defended the outburst as the result of a "heated moment" in the middle of a tense game.

• Viewer discretion advised? Your child's favourite YouTuber may be posting offensive content
• When family-friendly gets dark: DaddyOFive and the dark side of family-friendly YouTube content

After the clip spread online,the gamestudioCampo Santo tookdirect action by filing a copyright strike against Kjellberg's channel, where he had previouslyposted a video of himself playing their 2016 gameFirewatch.

"I am sick of this child getting more and more chances to make money off of what we make," said CampoSanto co-founder Sean Vanaman.The Firewatch video was quickly made unavailable on YouTube Kjellbergsaid he removed it out of courtesy and days later, Google accepted the copyright strike, deleting it permanently.Even so, Kjellberg can still create and post videos onYouTube, andhis channel continues to amass millions of views on a daily basis.

Online personalities likeKjellberghave been criticized for retaining theirplatform and popularity after makingoffensive comments that would likely torpedo a TV or film celebrity's career, but his latest racist outburst may have inadvertently set him and other YouTubersup for different fight.CampoSanto's move to distance itself from him and hisbrand could in fact have wide-ranging effects on the shaky relationship between the people who make video gamesand the ones who make money playingthem.

Hanging in the balance is aquestion no one seems to want answered: Is it legal to broadcast yourself playing video games without explicit permissionfrom the creators?

Gaming is YouTube's bread and butter

Video games are rarely treated the same way as other copyrighted entertainment media. Just about anyone who tries to upload more than a couple of minutes of the latest popular movie or music video without permission can expect a copyright-enforced takedown within hours.

Gamers, however, can stream a play session for hours, and post their entire archives online for on-demand viewing.PewDiePiefound fame playing and reacting to video games. His YouTube videos include footage of the games he plays, along with his commentary, and his channelhas amassed over 57 million subscribers.

According to GamesIndustry.biz's Rob Fahhey, most games companies "tacitly permit YouTubers to violate their copyrights, with creators and publishers turning a blind eye out of consideration of the promotional value of being featured on high-audience channels."

Whether that promotion actually translates into sales for developers is up for debate.

"We tend to think of streamers as just another facet of our community, and they play a role in exposing the game to new players who may then decide to pick the game up for themselves," said Raphael vanLierop, co-creator ofThe Long Dark."That said, in nearly three years of streamers playing The Long Dark, I can count on one hand the instances where streaming had a noticeable impact on our sales."

Legal grey area

YouTube creatorsand other "Let's Players" on sites such asTwitchargue that their commentarywhile playing games constitutes "fair use" (or fair dealing, as it's known in Canada) of copyrighted material.This has never been tested in court. YouTubers who do thiscurrently operate in a legal grey area.

Kjellberg's Firewatch videowas removed after Campo Santo filed arequest through theDigital Millennium Copyright Act (DMCA), whichenforcesthe rules surrounding intellectual property on theinternet. But it wasGooglethatremoved the video. The dispute never reached a legal battleground.

Mira Sundara Rajan, a lawyer specializing in intellectual property and a visiting scholar at Stanford Law School, said the concept of fair use as it relates to video games and online play is relatively uncharted territory. Previous precedents set by traditional broadcast media don't provide a clear road map, either.

She said the problem is that "the fit between the existing copyright framework and the new technologies and what's possible through them, in terms of use and dissemination, is really, really bad," she said. "And so you get into situations where the courts are trying to figure out how to fit a round peg into a square hole."

Even if a court were to rule on video games and fair use, there's no guarantee that the ensuing precedent wouldstick. For example, in 2013, a U.S. Supreme Court judge ruled that providing digital versions of books was a violation of the author's copyright. But the decision was reversed two years later.

Copyright and moral rights

After the removal of his problematic video,Kjellbergcontendedin a follow-up videothatthe copyright strike abusedthe intent of theDMCA.Campo Santo didn't make the game he was playing, andhe argued that their strikewas punishment for saying then-wordin a video unrelated to them.

According to Ariel Thomas, a copyright and trademark lawyer based in Toronto, Vanaman's personal reasons for raising the strike would be irrelevant if the case were heard in a Canadian court.

"Copyright, at least in Canada, is held to be a strict liability matter. So it's not really about your motivation. If you're violating copyright, you're violating copyright," Thomasexplained.

But what happens when a game developer no longer wants to be associated with a YouTuber's personal brand?

It seems then-wordincident mayhavebeenthe final straw forVanamanregardingKjellberg'spublic conduct.In February,Kjellbergcame under fire after making anti-Semitic jokesinanother of his videos, including paying two Indian comedians to hold up a sign that read "Death to all Jews."

The stunt cost him his partnership with Disney's Maker studios. Google alsoremoved his channel from theGooglePreferred advertising program, which aggregates topYouTubecontent for advertisers.

Campo Santo might have a stronger case raising the issue of moral rightsby claiming that Kjellberg's actions on a stream would sully their studio by association,regardless of whether he was playing their game at the time.

• 'I'm just an idiot': YouTube star PewDiePie apologizes again
• Google drops YouTuber PewDiePie's show over anti-Semitic stunt

Canada's Copyright Act contains a provision for moral law, and many equivalent provisions exist in other countries.However, U.S. law doesn't have any equivalent for entertainment media, which may explain why Campo Santo believed filing a DMCA strike was the only option to remove their video from Kjellberg's channel.

"Under the banner of the first amendment, a lot of people steamroll over the finer sensibilities, if you like, thatpeoplemight have about things they create," saidRajan. "But I think it's frankly based on a misunderstanding of what free speech is, and what moral rights are."

'It would transform the industry completely'

In the world of gaming onYouTube, a copyright strike is considered the nuclear option, and for good reason.Any legal precedent on the nature of video game footage on theinternetcould have huge ramifications for many ofYouTube'slargest channels, to say nothing of sites like Twitch, which deal almost exclusively in the genre.

"I think that could have really important chilling effects," saidRajan. "It would transform the industry completely, and qualitatively change the relationship between the people who are playing gamesand the people making them."

But she cautionedthat a collision course between creators and developers may not be as inevitable as some analysts have predicted.

"If there's a symbiosis in the industry between those groups, and there's kind of a balance that's been achieved, it may well be that things go ahead without the intervention of courts and copyright intervention suits," she said. "I think it's really hard to predict."