@Deviant-Dork Do you have any actual reason you think that, like, idk, a counterargument to any of the factors of fair use I cited? Or a relevant court case that decided game playthroughs are fair use? Or are you just trying to appear confident so that people believe you instead of them asking you for a justification and/or source for your claim?
@Deviant-Dork I'm copying the relevant part of my above comment: There hasn't been any case I know of regarding whether game playthroughs are fair use, and I looked. So (unless you know of one), the question of "are they fair use or not" has no definitive answer. I can't accurately claim they definitely aren't and you can't accurately claim they definitely are.
But let's say a streamer played the entire game (since usually people do full playthroughs). Here are the 4 factors of fair use and how they'd play out:
1: Nature and purpose of the use - Streaming is commercial (bad), but providing commentary is transformative (good). Mixed bag. 2: Nature of the copyrighted work - It's a fictional work, not factual. (Factual works are less protected.) Weighs against fair use. 3: Amount of the use - It's the entire game. Weighs heavily against fair use. 4: Effect on the market - It's heavily story-based, and Atlus could easily argue that if someone watched the stream they wouldn't want to spend 50 hours playing it on their own, so the market for their work was harmed. I definitely think a court would be persuaded by that. Weighs heavily against fair use.
Given how many those things weigh against the streamer, I would be VERY surprised if the streamer won.
Also, I'm not just trying to defend Atlus or Nintendo or anyone. I'm saying how this works because I don't like the current state of IP law. Seriously, I would love if courts determined that streaming (and mods, remixes, and mashups) to be fair use, but as of now I strongly doubt they would be.
@SonOfDracula YouTube and Twitch fall under the DMCA "safe harbor" clause for user-generated content. Essentially, as long as someone else is responsible and the sites follow some rules, they're legally safe. There are many, but the most important ones are the rule to (A) have agents that receive takedown notices, take infringing content down, and let the infringer submit a counterclaim (if desired), and (B) terminate repeat infringers. They both do those (& all other rules), so they're legally in the clear. (Note, from here on out I'm assuming Atlus West sued a streamer in a US court. If Atlus sued in a Japanese court the streamer would just be boned, Japan doesn't have fair use.)
Regarding "You’re playing their video game ... not using assets from the game for your own usage in say, a fan-made Persona game." - fair use doesn't work like that. Rogers v. Koons (1992) illustrates this - an sculptor used a copyrighted photograph (entirely) as the basis for his sculptures and got $100K+. The photographer sued him and won. The copyrighted work was not a sculpture and the photographer didn't consider making sculptures, but the fact that a potential market for the sculptures existed meant that the sculptures were infringing.
There hasn't been any case I know of regarding whether game playthroughs are fair use, but I doubt they would be. Let's say a streamer played the entire game (since usually people making videos do). Here's the 4 factors of fair use and how they'd play out: 1: Nature and purpose of the use - Streaming is commercial (bad), but providing commentary is transformative (good). Mixed bag. 2: Nature of the copyrighted work - It's a fictional work, not factual. (Factual works are less protected.) Weighs against fair use. 3: Amount of the use - It's the entire game. Weighs heavily against fair use. 4: Effect on the market - It's heavily story-based, and Atlus could easily argue that if someone watched the stream they wouldn't want to spend 50 hours playing it on their own, so the market for their work was harmed. Weighs heavily against fair use.
I'd be very surprised if the streamer won. Also, I'm not just trying to defend Atlus or Nintendo or anyone. I'm saying how this works because I don't like the current state of IP law. Seriously, I would love if courts determined that streaming (and mods, remixes, and mashups) to be fair use, but as of now I strongly doubt they would be. And look at my username - to paraphrase LazyTown, I've "done what I want" many times (only for media where the creators wouldn't make anything off of it, like if a game isn't being made anymore).
Comments 3
Re: Atlus Releases Strict Streaming Guidelines For Persona 3 Portable & Persona 4 Golden
@Deviant-Dork Do you have any actual reason you think that, like, idk, a counterargument to any of the factors of fair use I cited? Or a relevant court case that decided game playthroughs are fair use?
Or are you just trying to appear confident so that people believe you instead of them asking you for a justification and/or source for your claim?
Re: Atlus Releases Strict Streaming Guidelines For Persona 3 Portable & Persona 4 Golden
@Deviant-Dork I'm copying the relevant part of my above comment:
There hasn't been any case I know of regarding whether game playthroughs are fair use, and I looked. So (unless you know of one), the question of "are they fair use or not" has no definitive answer. I can't accurately claim they definitely aren't and you can't accurately claim they definitely are.
But let's say a streamer played the entire game (since usually people do full playthroughs). Here are the 4 factors of fair use and how they'd play out:
1: Nature and purpose of the use - Streaming is commercial (bad), but providing commentary is transformative (good). Mixed bag.
2: Nature of the copyrighted work - It's a fictional work, not factual. (Factual works are less protected.) Weighs against fair use.
3: Amount of the use - It's the entire game. Weighs heavily against fair use.
4: Effect on the market - It's heavily story-based, and Atlus could easily argue that if someone watched the stream they wouldn't want to spend 50 hours playing it on their own, so the market for their work was harmed. I definitely think a court would be persuaded by that. Weighs heavily against fair use.
Given how many those things weigh against the streamer, I would be VERY surprised if the streamer won.
Also, I'm not just trying to defend Atlus or Nintendo or anyone. I'm saying how this works because I don't like the current state of IP law. Seriously, I would love if courts determined that streaming (and mods, remixes, and mashups) to be fair use, but as of now I strongly doubt they would be.
Re: Atlus Releases Strict Streaming Guidelines For Persona 3 Portable & Persona 4 Golden
@SonOfDracula YouTube and Twitch fall under the DMCA "safe harbor" clause for user-generated content. Essentially, as long as someone else is responsible and the sites follow some rules, they're legally safe.
There are many, but the most important ones are the rule to (A) have agents that receive takedown notices, take infringing content down, and let the infringer submit a counterclaim (if desired), and (B) terminate repeat infringers. They both do those (& all other rules), so they're legally in the clear.
(Note, from here on out I'm assuming Atlus West sued a streamer in a US court. If Atlus sued in a Japanese court the streamer would just be boned, Japan doesn't have fair use.)
Regarding "You’re playing their video game ... not using assets from the game for your own usage in say, a fan-made Persona game." - fair use doesn't work like that.
Rogers v. Koons (1992) illustrates this - an sculptor used a copyrighted photograph (entirely) as the basis for his sculptures and got $100K+. The photographer sued him and won. The copyrighted work was not a sculpture and the photographer didn't consider making sculptures, but the fact that a potential market for the sculptures existed meant that the sculptures were infringing.
There hasn't been any case I know of regarding whether game playthroughs are fair use, but I doubt they would be. Let's say a streamer played the entire game (since usually people making videos do).
Here's the 4 factors of fair use and how they'd play out:
1: Nature and purpose of the use - Streaming is commercial (bad), but providing commentary is transformative (good). Mixed bag.
2: Nature of the copyrighted work - It's a fictional work, not factual. (Factual works are less protected.) Weighs against fair use.
3: Amount of the use - It's the entire game. Weighs heavily against fair use.
4: Effect on the market - It's heavily story-based, and Atlus could easily argue that if someone watched the stream they wouldn't want to spend 50 hours playing it on their own, so the market for their work was harmed. Weighs heavily against fair use.
I'd be very surprised if the streamer won.
Also, I'm not just trying to defend Atlus or Nintendo or anyone. I'm saying how this works because I don't like the current state of IP law.
Seriously, I would love if courts determined that streaming (and mods, remixes, and mashups) to be fair use, but as of now I strongly doubt they would be. And look at my username - to paraphrase LazyTown, I've "done what I want" many times (only for media where the creators wouldn't make anything off of it, like if a game isn't being made anymore).