The Ninth Circuitâs recent holding concerning fair use under the DMCA could have some interesting consequences for copyrightÂ holders that use takedown notifications to remove content fromÂ YouTube, app stores, and similar content distribution channels. There are already dozens of opinion summaries online, so this analysis will focus primarily on how this effects the game space. A few take-aways to get us started:
The Fair Use Analysis
Lenz doesnât actually bring the fair use analysis into the ruling itself, nor did it rule one way or another on whether the âLetâs Go Crazy #1â video constituted fair use. That wasnât the question presented to the Court. Instead, the Court offered some guidance on the manner copyright owners must consider the fair use analysis when issuing takedown notices:
As a review, the four factors of the fair use analysis are as follows:
Most Courts have found that these factors operate on a sliding scaleâfor example, if the entire focus of a video is one particular copyrighted work (e.g., an entire play-through of Dark Souls), the remaining factors (purpose and character of the use and the effect of the use on the potential market) may carry less weight in the fair use analysis. This works the other way, tooâif the use is exclusively educational, informational, and not for profit, the other factors may carry less weight as far as showing that the use is not fair use. However, all four factors must be considered when making a fair use analysis.
While the analysis under the new Ninth Circuit ruling need not be exhaustive, this still presents a considerable burden on copyright holders who have operated under the assumption that âfair useâ excused otherwise infringing content when issuing takedown notices.
How this affects the Games Industry
Takedown notices play a big part in content protection for publishers, developers, and distributors. As a result YouTube, Twitch, and other content distribution channels like the iOS and Android marketplaces have more or less automated the takedown process. Videos and streaming channels showing gameplay, game reviews, and cloned games have all fallen under the guillotine of the all-mighty takedown notice at some point.
Â Even with put back up procedures in place, the current system is rife with accounts of improper takedowns and rampant abuses taken by copyright holders and alleged infringers alike. The truth is that fair use is very difficult to prove and almost always require a lawsuit to reach a final determination. This isn't a perfect system, but it does seek to balance the interests of the parties.Â
While this new decision may not substantially decrease the number of victims of takedown notices (there isÂ always an argument against fair use), this may encourage many copyright holders to take a closer look at their takedown notice submission procedure. Although a ruling by the Ninth Circuit is by no means the law of the land, many big name companies operate in the Ninth Circuit (notably companies based in California and Washington) and have generally relied on the Ninth Circuit District Courts to resolve copyright disputes. These companiesÂ will likely be the first rights holders faced with the results of this decision if they donât already take fair use into consideration in their initial analysis.
Fair use is rarely a black and white issue. There are precious few clear examples of prima facie fair use. This is especially true in the context of âLetâs Playâ videos and other user generated content that solely focuses on playing through one game. However, we may see more favorable treatment towards game reviews and similar content that are likelier candidates for fair use. No promises, though.Â