Copyright law failed for game streaming, so alternatives emerged

from emergent order department

An interesting development in the digital world has been the continued rise of gaming as a hugely popular activity and hugely profitable industry. Stemming from this rise and popularity, there is yet another fascinating aspect: game streaming for entertainment. The best-known example of this phenomenon is Twitch, now owned by Amazon.

A new article by Amy Thomas, titled “Can You Play?” An Analysis of Video Game User-Generated Content Policies” presents one of the first in-depth analyzes of the copyright aspects of this new category of entertainment, and its very particular user-generated content (UGC). As she points out, copyright has a hard time dealing with game streaming. Copyright applies to many aspects – the underlying software, the images, the sounds, the scripts – and yet the game streamer does not significantly infringe them, but relies on them in a playful and creative sense which is beneficial for studio play. Game streamers – especially the top ones – act as trained, unpaid marketers who show off all the best parts of a game, often tricking viewers into trying it out themselves, if they haven’t. not already done. Thomas writes:

With the slow pace of policy change and judicial interpretation by the courts, it seems unlikely that the legal treatment of UGC gaming in copyright doctrine will change any time soon. Without intervention, this leaves the creators of UGC in an uneasy state of tolerated infringement, with an ever-present threat of enforcement action.

Faced with this Gordian doctrinal knot, the video game industry responded with an alternative mechanism for regulating user creativity: the contract. Now game companies routinely view the user approaching a game, not as a passive consumer, but as an active creator who cares about the rights granted to them to create interactively with a game.

The contract is established with the End User License Agreement (EULA) which players must accept. Thomas examines the EULAs of 30 games to understand how game companies go beyond strict and unnecessary copyright prohibitions to find ways to work with game streamers for mutual benefit.

It explores eight aspects of game streaming that are regulated by the EULA: videos, monetization, game screenshots and photographs, soundtracks, fan art, merchandise, modding, and commercial use. One of the most striking findings is that a surprisingly high number of game publishers allow monetization of their game content (7 unconditional, 12 with). However, monetization has its limits, as follows:

UGC policies primarily allow for passive advertising revenue, money earned through partnership programs with online platforms, and fan donations. Paywalls in any form (e.g. Patreon), while strictly constituting “monetization”, are almost universally prohibited among rights holders who attach conditions to monetization authorization (except of Mojang which allows a 24-hour embargo on paid content). As such, it may be more accurate to define monetization as a user’s right to earn passive income from their UGC, but not the active solicitation of money from other users at the hotspot. In this sense, UGC monetization is not transactional, but rather merit-based; other users may reward the UGC creator with their time, subscription, or donation, but may not be actively charged for accessing the content.

“Merit-based monetization” is a great way to describe the kind of patronage true fans can provide. As previous posts on this blog have suggested, it represents one of the best alternatives to a broken copyright system for the digital world. Thomas’s new game streaming research confirms both of these aspects.

Follow me @glynmoody on Twitter, Diaspora or Mastodon. Originally posted on Walled Culture.

Filed under: copyright, streaming, terms of service, real fans, UGC, user generated content, video game streamers

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