This past week, YouTube sent out thousands of notices to parties who have posted video game reviews (including game play walk throughs) on YouTube. While the vast majority of these “reviewers” are amateurs who are video game enthusiasts who simply like to share their experiences with YouTube’s viewers, many are serious, well-funded enterprises who have operated as “professional” reviewers of video games and have monetized that activity. What Siskel & Ebert were to movies these folks are to the world of video gaming.
What caused YouTube to take this action? To be sure, these game reviews and game play walk throughs contain actual video game audio and video—both protected by copyright. However, by all accounts, the owners of the copyrights, the game publishers, were not the driving force behind YouTube’s decision. It appears that YouTube simply decided on its own accord to remove the content, just in case the copyright holders were to decide to pursue claims against them.
This is odd for several reasons. First, under the Digital Millennium Copyright Act, YouTube, as an “internet service provider” under the Act, enjoys immunity for copyright infringement with respect to postings made by others on its site as long as it provides for a mechanism to remove infringing posted materials if the copyright owner of such materials sends the internet service provider a notice demanding that such materials be removed from the site. This is known as a “Takedown Notice.” Second, most video game publishers have welcomed the publicity that these game reviews bring to their games. They have viewed it as a form of advertising for their games and, in many cases, even provide the games to the more professional reviewers specifically for the purpose of creating reviews to be posted on YouTube. Finally, “reviews” have long been a favored type of use under the Copyright Act’s “Fair Use Doctrine” (which I have discussed previously on this blawg: Homage or Rip-Off? and Go Ahead and Copy It). While it is true that many of these reviewers earn a good deal of money as a result of ad sharing revenues from YouTube, the fact that they are earning money from these reviews which incorporate copyrighted content does not negate the applicability of the fair use doctrine.
Even more bizarre in this case is that most of the game developers have NO idea why reviews of their games are being taken down. The video game developers did not send Takedown Notices to YouTube claiming that their copyrighted works were been posted illegally. Some suspect that YouTube’s notices informing the video game reviewers that their reviews/gameplay walkthroughs were taken down was the result of an automated program instituted by YouTube that sniffs out copyrighted content and automatically generates a notice removing such content, regardless of the manner in which it is used or even if it is used with permission.
For companies who have been earning a living from the revenues generated from their game reviews, this is more than a bit troublesome—it could be a “bet the business” kind of moment. I know of at least one such company that has moved its reviews to a different platform as a consequence of this action by YouTube.
Certainly, YouTube (and any other content host, such as Facebook, Instagram and Google) can decide if it will host any content. It could change its longstanding revenue model of sharing ad revenues with those parties who post content on the site and simply rely on other non-infringing content that is uploaded by users who do not expect to be paid anything. This would certainly make the creators of content such as movies, television shows and music happy, as they would no longer have to worry about their product being given away for free on YouTube. However, the video game industry is a bit different. By and large, game developers and publishers have seen these game reviewers and game play posters not as parties who are violating their copyrights but, rather, as effective publicists for their games.
If this wave of Takedown Notices simply was the result of a software algorithm gone bad, perhaps YouTube will straighten it out and once again welcome the posting of this type of content. On the other hand, if this was a conscious business decision made by YouTube, perhaps it will rethink that decision. The community of professional and amateur game reviewers are eagerly waiting to see what YouTube’s next step will be.
