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«THE DEATH OF FAIR USE IN CYBERSPACE: YOUTUBE AND THE PROBLEM WITH CONTENT ID TAYLOR B. BARTHOLOMEW† ABSTRACT YouTube has grown exponentially over ...»

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71 Authors Guild, Inc. v. Google Inc., 954 F. Supp. 2d 282, 284 (S.D.N.Y. 2013).

72 Id. at 293.

No. 1] DUKE LAW & TECHNOLOGY REVIEW 77

II. ANALYSIS

A. The Angry Joe Show: The Paradigmatic Game Review Under the Lens of Fair Use Consumers view video game reviews for the same reasons that they read a movie critic’s column in the local newspaper when deciding whether to see a summer blockbuster. Reviews can be the difference between an enjoyable and imaginative journey into another realm and a savings of over sixty dollars (for a newly released title). Commentary and criticism are important, especially in the digital age where conflicts of interest are not immediately evident, and bias is undetectable.73 Enter YouTube. YouTube offers the perfect platform for the independent entrepreneurial enthusiast to offer their opinion on the latest release, while simultaneously garnering modest revenue from each offering.

YouTube gains a percentage of that revenue too. So, everybody wins, right?

Given the reliance on YouTube as a platform for independent reviews by multitudes of content creators, fair use should be a cornerstone for creativity on the site. But by automating the process of filing copyright infringement claims with Content ID and giving the purported copyright holder the “preemptive strike” of freezing revenues without a formal finding of fair use, YouTube effectively shifts the presumption of fair use against the uploader. A video game review is a relatively straightforward example of fair use that is completely misidentified, and ultimately undermined by Content ID. This Issue Brief examines this conflict in turn.74 73 A well-known video game reviewer named Totalbiscuit has shared emails confirming the existence of a paid review model: “We would need a gameplay video from him by [redacted], and I can offer $2,000. A [video game company] is making some improvements to the game that they want to feature in his video that won’t be completed until [redacted], so he will need to wait until then to start filming anything, but he can get a good feel for the game by trying it out right now at [redacted].” See Untitled, PASTEBIN (Apr. 2, 2014), http://pastebin.com/ cZpRbpxd.

74 The following fair use analysis assumes that the copyright holder actually owns the content. However, Content ID is far from perfect in this regard. It can misidentify original content and assign its ownership to a purported copyright owner. This was the case when an individual, independent game developer created his own video game and uploaded clips of the game onto YouTube. Content ID subsequently misidentified and filed a copyright infringement claim against him, removing his video from YouTube entirely. See Owen Good, The Most Ridiculous Victim of YouTube’s Crackdown is a BASIC Game, KOTAKU (Dec. 17, 2013), http://kotaku.com/the-most-ridiculous-victim-of-youtubes-crackdown-is-aTHE DEATH OF FAIR USE IN CYBERSPACE [Vol. 13

1. The Purpose and Character of the Use The purpose and character of the content’s use under the first prong of the fair use analysis is composed of two elements: (1) whether the use is transformative, and (2) whether the use is commercial.75 a. Transformative Use In Campbell, the Supreme Court ruled that a use is transformative if it “adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning or message.”76 Consider the Angry Joe review for the video game The Elder Scrolls V: Skyrim: A snowy mountain from the game is shown on the screen.77 Out walks Angry Joe, dressed in a brown robe reminiscent of a monk’s attire. Superimposed in front of the serene mountaintop, he bows respectfully. The camera pans from Angry Joe to a resting dragon,78 also taken from the game, which says, “Greetings, Angry Joe. You’ve trained hard over this past decade. Now it’s time. Show me what you’ve learned.”79 Obviously not a part of the original game, this audio clip represents one of innumerable creative embellishments by Angry Joe, who then proceeds to review the game using several imaginative scenes that involve costumes, digital effects, and props that draw from game content.80 Not stopping there, Angry Joe adds comedy to the mix by enlisting some of his friends to dress in brown robes and dance wildly to an original song against another video game background.81 From these differences, it is clear that watching Angry 75 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

76 Id.

77 The Elder Scrolls, supra note 14. The problems exemplified by Angry Joe in this Issue Brief occurred under a different Content ID paradigm. In December 2013, YouTube allowed copyright holders to impose revenue diversion upon those videos found to be potentially infringing copyright by Content ID. Such was the case here with Angry Joe. The advertisement revenue that was generated for a content-creator like Angry Joe on his original video was automatically diverted to those claiming ownership of the copyrights used in his video. Diversion occurred until the process was resolved. In March 2014, YouTube responded to community outcry and eliminated the controversial revenue diversion option, instead opting to utilize revenue freezing for all parties. Letter from YouTube, supra note 8.

78 Named Pararthurnax, if the reader is curious.

79 This, too, was not part of the original game. Voice work and editing, among other things, had to be done to the video to allow this exchange to occur convincingly.





See AngryJoeShow, note 14 (incorporating obvious non-game elements).

80 Id.

81 Parody may also be implicated here. In Campbell, the Supreme Court noted that parody “can provide social benefit, by shedding light on an earlier work, and in the process, creating a new one.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). In that case, the Court articulated that ridiculing the original song, as No. 1] DUKE LAW & TECHNOLOGY REVIEW 79 Joe review a video game is vastly different than actually playing the game itself.

Playing a game is not the same as watching gameplay footage on YouTube. The purpose of playing a game varies from person to person, but a widely cited reason is to have fun—to experience a world outside of our own.82 On the other hand, the purpose of watching a video game review is simple: to decide whether to purchase the game. Thus, like the transformative use of the posters within the biography in Bill Graham Archives that are ultimately protected by fair use, Angry Joe’s review fulfills a separate and distinct purpose from that of the original game itself.

Besides his creativity and extensive preparation for the review by playing the game, Angry Joe injects a very distinct kind of commentary and criticism, sufficient to satisfy a fair use analysis under Bill Graham Archives, into his review. For almost twenty minutes, Angry Joe launches into a comprehensive and transparent review of the award-winning video game. And in the comments below the video, thousands of viewers continue the critical discussion of the game, all started by Angry Joe’s review.83 Therefore, a video game review is clearly transformative.

b. Commercial Nature of the Use In evaluating the commerciality of a work, the question is “whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”84 There is no presumption that a commercial use of material necessarily renders a defendant undeserving of the protections of fair use.85 Angry Joe operates a channel known as “AngryJoeShow” where all of his videos are gathered in one place. His channel lists over five hundred videos, some of which have garnered over one million views.86 Each video is monetized on his channel.87 YouTube, as part of its terms of service for monetization, keeps fifty-five percent of the generated funds from the well as commenting on the naiveté of an earlier day rendered the use a parody, protected under fair use. Id. at 583. Surely Angry Joe’s sustained use of comedic tropes in his many reviews creates an even stronger indication of fair use.

82 Video games can also make you more intelligent, can slow the biological aging process, and can even help you train to become a surgeon. See Drew Guarini, 9 Ways Video Games Can Actually Be Good For You, HUFFINGTON POST (Nov. 7, 2013), http://www.huffingtonpost.com/2013/11/07/video-games-good-for-us_n_

4164723.html.

83 The Elder Scrolls, supra note 14.

84 Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985).

85 Campbell, 510 U.S. at 584.

86 The Angry Joe Show, supra note 4.

87 Youtube Copyright Disaster, supra note 1.

80 THE DEATH OF FAIR USE IN CYBERSPACE [Vol. 13 advertisement. The other forty-five percent goes to the user, thus generating a win-win situation in which content creation can be encouraged for uploaders. YouTube makes revenue to support its platform and so viewers can enjoy YouTube free of charge.88 Since Angry Joe makes advertising revenue from his videos, 89 his game reviews are clearly commercial for the purposes of a fair use analysis because he derives income from the videos listed on his channel.

2. The Nature of the Copyrighted Work Much like the work of L. Ron Hubbard in New Era Publications, the underlying content that Angry Joe relies upon is work that has already been published. Critics will likely argue that the underlying work is one of pure fiction and is therefore a work of creativity, but there is a redeeming factor in Angry Joe’s borrowing: the new content created by Angry Joe attempts to “communicat[e] information pertinent to consumer choices”90 in the context of the video game market. The dissemination of criticism and consumer information presumably favors Angry Joe despite the fictitious nature of the original work.91 Indeed, by its own terms, §107 carves out an explicit protection for works of criticism, thus highlighting their extreme importance in American society.92 In the context of video game reviews, the dichotomy between gameplay and criticism is ever present. Thus, this prong favors Angry Joe.

3. The Amount and Substantiality of the Portion Used The third prong of the fair use analysis asks “whether the amount and substantiality of the portion used in relation to the copyrighted work as a whole... [is] reasonable in relation to the purpose of the copying.”93 Quantity, as well as quality and importance of the material used is factored into the analysis, as well as if they “go to the ‘heart’” of the original.”94 88 Id.

89 Id.

90 Consumers Union of U.S., Inc., v. Gen. Signal Corp., 724 F.2d 1044, 1049 (2d Cir. 1983).

91 Moreover, the Second Circuit also articulated that there is no bright-line test for this factor, lest it undermine the flexible nature of copyright law, leading to a further inference in favor of Angry Joe. See New Era Publ’ns Int’l, ApS v. Carol Publ’g Grp., 904 F.2d 152, 158 (2d Cir. 1990).

92 17 U.S.C. § 107 (2012).

93 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994) (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841)).

94 Id. at 587–88.

No. 1] DUKE LAW & TECHNOLOGY REVIEW 81 As to quantity, the Angry Joe review for the video game The Elder Scrolls V: Skyrim is just over nineteen minutes in length.95 Angry Joe attests to playing over sixty hours in the first few weeks of its release alone.96 Thus, the review is substantially less than the quantity of the hours contained within the original work. In New Era Publishing, the Second Circuit noted that the L. Ron Hubbard biography that was ultimately protected by fair use used as much as “8% or more of 11 [copyrighted] works.”97 Assuming the video game contains only sixty hours of content (which, in actuality, The Elder Scrolls V: Skyrim contains far more because the content is presented in a non-linear fashion and has a vast amount of secondary content that does not need to be completed in order to finish the storyline), Angry Joe’s review borrows less than one percent of its material from the original content.

As to quality, the Angry Joe review superimposes an environment reminiscent of a weather channel report: Angry Joe stands at the foreground in the corner of a room, with gameplay rolling in the background on a digital screen. On this digital screen is Angry Joe, either performing some kind of parody over the top of gameplay footage or superimposing words onto the screen in order to make his point. Thus, if viewers watched his review in order to experience the true quality of the game, they would be hard-pressed to find it there.

Consider the quintessential “let’s play” videos that are also popular on YouTube.98 A “let’s play” video is a recording of an uploader playing a particular video game, often with insightful commentary on gameplay mechanics or the storyline.99 The viewer merely watches the gamer on YouTube and has no opportunity to make any gameplay decisions like walking down a certain corridor or choosing a witty dialogue option when conversing with a non-player character. While certainly useful to understand how a certain game looks in action, it is no substitute for actually playing the game: decisions and all.

95 It should be noted that this is substantially longer than other video game review outlets. Most reviews are not longer than five minutes. See generally GAMESPOT, http://www.gamespot.com (last visited Feb. 28, 2015).

96 At last check, the author himself has over one hundred hours logged in play time.

97 New Era Publ’ns Int’l, ApS v. Carol Publ’g Grp., 904 F.2d 152, 158 (2d Cir.

1990).

98 A search for “let’s play” reveals approximately 22,600,000 results. YOUTUBE, https://www.youtube.com/results?search_query=let%27s+play (last visited Feb. 28, 2015).

99 Patrick White, Fan Fiction More Creative than Most People Think, THE COLLEGIAN (Apr. 18, 2013), http://www.kstatecollegian.com/2013/04/18/fanfiction-more-creative-than-most-people-think/.

82 THE DEATH OF FAIR USE IN CYBERSPACE [Vol. 13 At baseline, the “let’s play” videos are an exact duplication of substantial portions of gameplay. Sometimes, entire storylines from a game are copied over a series of videos. Although the purpose of this Issue Brief is not to look at “let’s play” videos in depth, there is a fundamental disconnect between watching a video of a game, and actually playing the game itself.

Gameplay is dynamic. The player can interact with the virtual environment and make the experience different each and every time.



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