Here’s what the law says about PewDiePie’s fight with Campo Santo

There's a fight brewing between Campo Santo, publisher of the video game Firewatch, and foul-mouthed YouTube celebrity PewDiePie. A video recently surfaced of PewDiePie using the N-word while livestreaming a game of PlayerUnknown's Battlegrounds—which is not made by Campo Santo. In response, Campo Santo co-founder Sean Vanaman announced on Twitter that he would be invoking the Digital Millennium Copyright Act to force PewDiePie livestreams of Campo Santo games off of YouTube.

"We're filing a DMCA takedown of PewDiePie's Firewatch content and any future Campo Santo games," Campo Santo cofounder Sean Vanaman said on Twitter Sunday evening. "I am sick of this child getting more and more chances to make money off of what we make."

An important question here is whether copyright law gives Campo Santo the right to stop unauthorized streaming of its games. In general, video game makers have the right to control when play of their video games can be broadcast online. But a couple of things complicate the analysis in this case.

First, the Campo Santo website explicitly allows livestreaming. "We love that people stream and share their experiences in the game," the company writes. "You are free to monetize your videos as well." Second, PewDiePie could be protected by copyright's fair use doctrine, which allows the use of copyrighted material without permission from copyright holders under certain circumstances.

Campo Santo is likely within its rights to revoke permission to stream its game, according to Christopher Newman, a legal scholar at George Mason University. But the law isn't settled on the fair use issue. James Grimmelmann, a legal scholar at Cornell University, told Ars that he couldn't find any cases in which the courts have specifically looked at the fair use status of video game streams.

One factor working in PewDiePie's favor, Grimmelmann argues, is the permissive norms around video game streaming generally. While the law is far from settled, the fact that so many video game developers—including Campo Santo itself—allow and even encourage players to stream their games could lead courts to decide that livestreaming can be fair use.

But that's not a slam dunk. The sheer amount of copyrighted material that shows up in a livestream works against a fair use finding.

A big reason the law is so unsettled, however, is that these cases rarely wind up actually going to court. Often, livestreamers don't contest takedown requests, making litigation unnecessary. In other cases, video game makers have signed deals with platforms like YouTube to share ad revenue. Less litigation is generally a good thing, but it means continued uncertainty about exactly where the legal lines are.

Why industry norms matter

The point of copyright's fair use doctrine is to allow people to enable creativity by allowing them to take portions of one person's copyrighted work and "transform" it into something else. When we quoted that passage from Campo Santo's website at the beginning of this article, for example, we didn't need Campo Santo's permission because we were only using a small portion of its copyrighted material, and we were using it for a very different purpose—a news article—than the original website.

The same could be true of video game live streaming—especially if it's accompanied by realtime commentary. A video of someone playing a game is obviously not a direct substitute for the game itself, and the courts might find that it's a legal, transformative use of the game. But we can't be sure because Congress didn't provide a definitive list of fair uses. Instead, courts are forced to puzzle out what qualifies as fair use each time a new medium is invented.

One factor that courts take into account is industry practice. "Most video game copyright owners seem to accept that streaming in this form will take place," Grimmelmann says.

There are exceptions, though. Game publisher Atlus, for example, threatened earlier this year to take down streams that go too far into Persona 5. Some developers complain that streams can spoil the experience of some story-based games, possibly leading to reduced sales. Many other developers, though, see streamers as a sort of free promotional opportunity that can drive more attention and financial success.

If it's generally considered acceptable to livestream games—or, even better, if many video game makers encourage streaming—that could be taken as evidence that video game makers themselves do not consider video game streams a competitive threat.

Also, Grimmelmann says, the fact that Campo Santo is complaining about a racial slur—especially one uttered during a livestream of someone else's game—could work in PewDiePie's favor here. As Campo Santo founder Sean Vanaman put it in a tweet: "Our game on his channel = endorsement."

"Streamers add pretty extensive commentary and their own participation," Grimmelmann adds. It was this commentary—offensive though it was—that drew Campo Santo's ire, not any concerns that PewDiePie's livestreams were hurting Campo Santo's bottom line.

At the same time, a big factor is working against PewDiePie: "The stream uses immense amounts of game content," Grimmelmann points out. The more copyrighted content is used, the weaker a fair use argument is. A court could decide that PewDiePie's videos are not fair use because he uses too much Firewatch content and adds too little value of his own.

Why the case might never get to court at all

Copyright law provides copyright holders with an expedited way to get material removed without filing a lawsuit. This process, called a DMCA takedown notice, is what Campo Santo vowed to use against PewDiePie. It works like this: a copyright holder can send an online service like YouTube a formal notice that user-submitted content violates copyright law.

The law doesn't require service providers to take down the material, but it grants providers immunity from copyright lawsuits if they do so. That's such a valuable benefit that most service providers automatically take down material in response to copyright complaints, creating an obvious potential for abuse. The law theoretically imposes penalties for frivolous or bogus takedown notices, and these have proven extraordinarily difficult to enforce in practice.

What the target of the takedown (in this case, PewDiePie) can do, however, is issue a counter-notice stating that the content isn't actually infringing. The service provider (YouTube) is required to pass this notice back to the copyright holder (Campo Santo). The copyright holder has two options at that point: file a lawsuit in court or allow the content to go back online. Only if the copyright holder chooses to file a lawsuit will a court ever rule on whether the file actually violated copyright law.

Most cases never get that far. Sometimes the target of the takedown notice decides not to fight the notice and leave the content down. Other times, the target issues the counter-notice, but the copyright holder takes a second look at the case and decides it's not worth filing a lawsuit over. Only in rare cases is anyone actually sued. And it's only in those cases that the courts have a chance to issue legally binding opinions. That's a big reason that this relatively new area of law is still so murky.

And in some cases, major video game makers and streaming companies have managed to work out financial deals without going to court. Nintendo, for example, has a deal with YouTube that lets it get a share of ad revenue generated whenever YouTube livestreams its games. Cutting a deal like this gave YouTube a clear right to host the games and gamers the right to stream them—without having to rely on fair use.