Whilst the piracy and free streaming of entertainment such as television, music and cinema content has always been a problem when it comes to the internet, a newly-proposed bill wants to make "public performance" by "electronic means" of "copyrighted content" in the United States a criminal, jailable offense. This prompts uncertainty amongst the gaming community, and poses questions about the nature of video content from games being streamed across the internet, linked to the unique nature of the videogames medium. Resident lawyer Joey Núñez analyses the bill's possible impact on gamers.

What is it with laws in the good old USA, and their recent tendency to screw over gamers? Seriously, Obama, look into this ASAP.

Last week we gave you the rundown on California Assembly Bill 1179, and the Supreme Court decision that shot it down; for those of you keeping count, that’s Awesome Gamers one, Lawmakers nil. Sadly, those pesky congressmen and women are at it again. Enter Bill S.978 which, although not aimed directly at gamers, is poised to have some powerful effects on the gaming community.

In a nutshell, Bill S.978 is a proposed law currently being evaluated by the Congress of the United States, which seeks to bring some serious reform to copyright law in the country, specifically regarding "public performances" by "electronic means" of "copyrighted works".

I don’t blame you if you’re confused. Simply put, what the stuffy congressmen and women call a "public performance by electronic means", we call "streaming". Any audiovisual content which is uploaded or livestreamed by users to video communities, such as Vimeo and YouTube, would be considered a "public performance by electronic means".

Now, as the law currently stands, copyright infringements - for the most part - are considered to be civil matters; this basically means that infringement of copyright laws will most likely result in a fine and a cease-and-desist order from the copyright holder. That's no laughing matter by any means, but the current system is a mere slap on the wrist compared to what Bill S.978 is proposing should happen if a so-called "public performance by electronic means" contains copyrighted material.

What’s the proposed punishment then, you ask? Jail. Do not pass go, do not collect two hundred dollars.

Monopoly references aside, you can see why Bill S.978 is a serious deal. Copyright infringement in these "public performances" would no longer be a civil matter, but rather, the infringement would be considered a criminal offense. What this means is that if you were to violate the terms of the bill (should it become law), you wouldn’t just have to worry about the copyright holder asking you to remove your content, but rather you would also be facing a much bigger opponent: the government, which would be responsible for seeing that the law is upheld and its offenders punished accordingly.

As I said before, this bill is not strictly aimed at the gaming community. Frankly, I don’t think these genius lawmakers even thought of us when putting this bill together; no sir, their sights were firmly set on the music, TV and film industries which are, admittedly, severely affected by the streaming of copyrighted content, a practice which has become incredibly commonplace online. Of course you're not going to pay your cold, hard, well-earned cash for those Xena: Warrior Princess DVD's when you can just stream those episodes for free online. But you should: you can imagine that this kind of streaming costs a lot of people considerable amounts of money, but why should the gaming community care?

If you are reading this I will assume two things about you: (a) that you are a gamer, and (b) that you know your way around a computer. Based on these two assumptions, I’m going to go ahead and make a third: that, at some point, you have watched online footage of games that you are interested in, be that walkthroughs, gameplay videos or reviews, made by gamers just like you and me. It's obvious where I’m going with this. Under the provisions of Bill S.978, any live stream or uploaded audiovisual content containing footage from videogames is basically an electronic performance including copyrighted material. After all, videogames are copyrighted materials.

YouTube alone is filled with hundreds of accounts specialising in videogame content, which are a great source of information for us gamers. I can’t remember the last time I bought a game without checking out some gameplay footage on YouTube first. And I'm not talking about those conveniently-pretty gameplay trailers put together by the publishers to be just-so, but instead I mean raw, unbiased footage captured by a gamer just like me. You can kiss those videos goodbye should this bill become a law, along with footage of gaming tournaments, and even raw E3 footage not prepared by the big companies. The only way content providers would be able to continue to create new footage and keep the footage they have online is by obtaining express permission from the copyright holders. Do you see game publishers responding to thousands of emails requesting permission to post videos? Me neither. The effect on the videogame videoblogging community would be disastrous.

I can see the purpose of bill S.978, and recognise the harm that piracy and streaming have done to the TV, film and music industries, but the concerns which the U.S. lawmakers are trying to address with this bill simply do not apply to the videogame industry. When you stream a movie or series, you are getting the full experience that the product offers without paying the applicable price, and that’s because we are passive observers of these types of media. However, when it comes to videogames we’re talking about interactive experiences; simply watching a video of a game doesn’t come close to replacing or replicating the full experience. Furthermore, in what way is Capcom hurt by my watching of "the best Street Fighter 4 fights" on YouTube? To the contrary, streaming is probably the best form of free publicity for gaming companies today. Proof of this is that, as the law stands today, Capcom - or any other gaming company - can legally force content providers to remove any audiovisual material which they have posted containing footage of their games. Approximately 99.99% of the time, though, they don’t.

If the bill passes, will the government be so permissive? I doubt it. But, a better question yet still: will our content providers be willing to risk jail time? I think you know the answer.

If you are reading this and think you will be affected by the bill, I urge you to read the full text of the bill. I should be clear in stating that in order to actually violate the terms of the bill, the content provider has to post at least ten so-called "performances" during an 180-day period, and that the economic value of such performances must be equivalent to a minimum amount. These are loopholes which could exonerate some livestreamers and videogame videobloggers from a penalty should this bill become law, but videobloggers who continually post videos and streams online and receive revenue through advertising or other means probably won't be so lucky.

The bill is a long way from becoming a law, and hopefully before that happens the vague and broad wording of the current text will be modified so that gamers won’t be affected. If you want to contribute to the effort to make sure the bill makes exception for the gaming community, or if you feel the need to express your discontent with the law, please do so: fill out the form here.

Hopefully, our digital voices will be heard.

Labels: 2011, Bill S.978, Feature, Joey Núñez, Law, Legal, Streaming, United States, Video

The videogames industry has just won a landmark legal battle which, had we lost, may have seen censorship of videogames becoming increasingly common. If you're not in-the-know regarding the proposed law, or you're unsure about the legal terms making up the full case, Joey Núñez - our only writer who just happens to have a law degree - brings you a 'for dummies' guide to California Assembly Bill 1179.

California Assembly Bill 1179 was a proposed law in the state of California, which would have legally prohibited the sale, or rental of, violent videogames by minors. Under the proposed law, any game in which the option of killing, maiming, dismembering or sexually assaulting an image of a human being was offered to the player, in any shape or form, could be considered as violent, and would have to include a nice big '18' certificate on the packaging. Any publisher or retailer in violation of the law would be looking at a nice hefty fine. Needless to say, the industry was in a bit of a fuss, and it didn’t take long before the constitutional validity of the bill was being argued at the courts.

On 27th June, 2011, the Supreme Court of Justice of the United States issued its decision on the matter. How did the Honorable Justices presiding over the Supreme Court rule? They took the First Amendment, and they used it to bitch-slap the California State Legislature - those are the dudes cooking up these zany laws - across the face, whilst politely indicating to the fine congressmen and women of California that Bill 1179 could 'suck it'.

Okay: so maybe the Justices did not exactly phrase their feelings on the California Bill that way. Or, maybe, they did? Feel like reading through the 96-page decision issued by the Supreme Court to find out? Yeah, I didn’t think so somehow. Luckily for you, I tore through the decision like a first year law school student, and I like sharing. You fine readers may not be clued-up on the legal mumbo jumbo, but as gamers in the know we should all at least be marginally aware of this case which, any way you put it, has produced what can truly be considered a landmark decision for the video games industry, and perhaps the entertainment industry as a whole.

So what exactly is all the fuss about? Let’s break it down for you:

1: Video games are protected by the First Amendment. This is awesome.

The First Amendment of the United States Constitution establishes a nifty legal principle and human right known as 'Freedom of Speech'. The legal theory behind it all is quite deep - and genuinely interesting - but I won’t go into all that here; what you really need to know is that, thanks to freedom of speech, those in power cannot (for the most part) censor what you and I say. We are free to go on television, the radio and online and speak our mind freely about the most diverse topics, without fear of persecution.

The Supreme Court has now made it clear to the rest of the world what we gamers have known for quite some time now: videogames are more than just 'dumb games', but rather are legitimate forms of expression on par with books, movies and plays. Through videogames, designers and developers not only create entertaining interactive experiences but "communicate ideas" and transmit social messages. Videogames are, without a doubt, a form of artistic expression (or can be anyway) and, as such, fall under the protection of the First Amendment and cannot be unlawfully censored by the government. As the Supreme Court so eloquently put it, "esthetic and moral judgments about art and literature are for the individual to make, not for the Government to decree..." In a nutshell, since videogames fall under the protection of the First Amendment, the government cannot restrict or censor games based on their content, unless a restriction can be justified. The proposed bill sought to do just that, making it illegal for millions of gamers to access the content of hundreds of games just because a game could be considered 'violent'. The fact that the Supreme Court made it known that this was a load of crap is a very good thing, both for us gamers and the industry as a whole.

2: God of War and GTA are not responsible for the psychopaths. So quit whining.

So, when exactly is censorship a valid option? Well, when the government seeks to restrict Freedom of Speech based on content, a restriction can only be valid if it can pass the test of strict scrutiny, which basically means those in power have to justify that the restriction is motivated by a compelling government interest, which can only be accomplished by the proposed restriction.

When asked if the proposed California bill passed the strict scrutiny test, the Supreme Court responded with a resolute "Hell NO, bitches!"

Or something along those lines.

See, the fact of the matter is that the California legislature was unable to prove that there was any significant, direct, causal link between violence in videogames and harm caused to minors. They were simply unable to provide any solid evidence which showed that violent games make minors more aggressive. I have a theory which could explain this: violent videogames do not make minors substantially more aggressive. I’m sure there are tonnes of troubled teens out there who pile obscene amounts of time into aceing the perfect headshot online, but I’m just not buying the idea that the game that a teen is playing is the source of their troubles. Luckily, the Supreme Court wasn’t buying it either.

3: Dear Californian douchebags: enough with the witch-hunt already. Sincerely, videogames.

The California Legislature claims that it has the best interest of minors at heart - the children must be protected from the violence! Alright then. So, I’m guessing this nifty bill also censors anything at all DragonBall related, right? Power Rangers is also on the black list, correct? Oh, and those god-awful fairy tales with all the sword fights, enchantments, melting witches and dying princesses are probably headed out the window.

They’re not? Well then, I call bullshit. And guess what - the Supreme Court agrees.

I’m going to go ahead and quote those in the robes, who - when referring to the proposed bill - pointed out that it "...is wildly underinclusive when judged against its asserted justification...", and that this underinclusiveness "...raises serious doubts about whether the government is in fact pursing the interest It invokes, rather than disfavoring a particular speaker or viewpoint". In short, the Supreme Court concluded that California had singled out the video games industry for disfavourable treatment, in comparison to the treatment offered to booksellers, cartoonists and movie producers, and there is simply no persuasive reason for this to occur.

Long story short: you fail, California. Now stop picking on video games.

I’m not going to sit here and justify the fact that millions of underage kids are playing highly inappropriate games. I personally have a big problem with this issue. However, creating an unconstitutional law unfairly aimed at the industry was not the solution. The ESRB rating system does a pretty decent job at rating games and provides parents with the tools they need to make sure that their children aren’t nailing gruesome headshots and picking up virtual hookers before they should be. Censorship is not only generally lame, but it is legally unsound and sets dangerous precedents. In my opinion, achievements and trophies are in order for the Supreme Court. You did well, oh ye honourable robed ones. You did well.


What do you think of the Supreme Court decision and the proposed bill? Sound off in the comments section below.

Labels: 2011, California Assembly Bill 1179, Censorship, Feature, Joey Núñez, Legal

There was a moment two days ago, after the gavel finally fell in a Swedish court, when it looked like the website known as The Pirate Bay had illegally uploaded its last torrent.

Having been told to be shut down, The Pirate Bay and its ISP, Black Internet, complied, and disconnected the site from the open sea of the internet. That decisive action lasted about... one full day, after which the site resurfaced defiantly, allowing its internet faithful to wench, pillage, and plunder their way through millions upon million of dubloons worth of invaluable digital media once more. Yarrrrrrrrr.

But did The Pirate Bay stop at simply disobeying a clear court order? Nope. They did what Blackbeard would have done - profited off of their blatant disrespect for the world's legal systems by selling a t-shirt.

The shirt reads: "I spent months of time and millions of dollars to close down The Pirate Bay and all I’ll get is this beautiful t-shirt!" According to The Pirate Bay's blog, it is in the process of being made, and as soon as it is ready will be sent "to the enemy frontline."

It's the internet equivalent of the entire Pirate Bay staff waving their collective penises at Sweden, while smirking. I, for one, am impressed.

On an only slightly related note, it looks like The Global Game Factory won't be able to acquire The Pirate Bay as it had once desired, due in major part to an investigation made by the Swedish government to see if they actually have the cash to do it.

If there's one thing I take from all this, it's that even when they're pale, nerdy Swedish men living far, far away from the Caribbean - I f**king love pirates.

Greg

Labels: Greg Mengel, Legal, The Pirate Bay

The belaboured legal feud between Activision and Double Fine Productions over the rights to release the guitar-toting action game, Brutal Legend, reached what seems like a conclusion on Thursday with Activision's lawyers announcing an out-of-court settlement at a Los Angeles hearing. As you'd expect, the details of said settlement are being kept under wraps (for now).

The who-owns-what tangle originally began when Vivendi (Brutal Legend's original publisher) merged with Activision in 2007, in turn prompting Activision to abandon releasing the game. Double Fine then took up the project.

As a result, Activision sued Double Fine in order to halt Brutal Legend's scheduled October 2009 release date. In its suit, Activision alleged that the rights to Brutal Legend still belonged them despite stopping its prior release.

To further complicate matters, Double Fine counter sued, stating that Activision wasn't trying to protect the rights to Brutal Legend but merely trying to eliminate competition for the long-running Guitar Hero franchise. Double Fine also claimed faulty business practices in its suit. Apparently, EA failed to follow up on Brutal Legend's standing as what was supposed to be a sequel to Guitar Hero.

For the most part, publisher Electronic Arts has played a sidelines role in this battle. EA adopted Double Fine into its EA Partners program in 2008 to publish the then-rejected Brutal Legend, which CEO of EA John Ricitiellio called "a creative risk." A risk indeed: if Activision's suit had been successful, EA would have lost the publishing rights, and the Jack Black shred-fest would be propelled further out of reach for gamers once again.

Hopefully, more details regarding the settlement will be made available in the coming weeks. But I'm pretty confident that Brutal Legend's fiery trail through courthouses over the last two years will make its rightful diversion soon enough: into gamers' consoles.

Jacob

Labels: Activision, Brutal Legend, Double Fine, Jacob, Legal