Stupid Legal Tricks, Chapter 4

DMCAHeader

(Note: I am an attorney, but I may or may not be licensed in the jurisdiction of any particular reader. Nothing in this post constitutes legal advice. Consult an attorney licensed in your jurisdiction and familiar with the relevant law before making legal decisions. In some jurisdictions, this post may be considered ATTORNEY ADVERTISING.)

All right, you’re really going to make me do this, aren’t you? I tried to tell you not to play stupid legal tricks with DMCA notices. But oh no, you wouldn’t listen.

*opens emergency cabinet marked IN CASE OF FAIR USE ARGUMENT, takes out helmet which has a picture of an adorable mini-lop rabbit with a switchblade*

Let’s rock, nerd-person.

First of all, if you didn’t see my previous post about literally using DMCA notices as a Stupid Legal Trick, there’s a primer linked there on The DMCA Takedown Notice Demystified. You should read at least that primer, because it is informative, and preferably my post, because it is awesome. The summary? Don’t use DMCA notices as a Stupid Legal Trick.

Those of you who are plugged in to the Twitters probably know what inspired this post, but let me sum up a hypothetical:

  1. Developer posts Notice on their website that anybody who wants to can stream or post videos of people playing their games.
  2. NetPersonality posts a vid wherein they are playing a game from Developer.
  3. NetPersonality does something Bad, which Developer does not like, totally unrelated to Developer’s game and the aforementioned vid.
  4. Developer, without taking down Notice, DMCA’s NetPersonality’s vid, hosted on Host.

Who can tell me why this is a bad idea? Anyone? Anyone?

That’s right: it’s playing a Stupid Legal Trick with a DMCA notice. 

And that is, ALWAYS, a horrible, terrible, no good, very bad idea.

Now, in this case, as opposed to the situation I discussed last time, we’ll assume that most people would probably agree that what NetPersonality did was Bad. We’ll even assume that I myself would say it was Bad. But DMCA notices are not. For. Punishing People! Using them in that fashion just gives ammunition to the forces opposing the rights of small and independent creators, who would like nothing better than for DMCA notices to Go Away.

“But wait,” I hear you say. (I keep telling you to pitch that Google Home, but do you listen? No. I do, though.) “You put on your FAIR USE helmet! Why did you do that if you were just going to yell at a hypothetical Developer for abusing DMCA notices?”

Well, first of all, it is a very cool helmet. (Editor’s Note: It’s even got wings on the sides!) Secondly, because what Developer did in my hypothetical is an interesting reason to think about Fair Use. Ultimately, NetPersonality  has to believe in good faith that they have some legal grounds to use the game in their vid. Since they did literally copy Developer’s game, or at least portions of it, Fair Use is really the only grounds they have to counter-notice. So buckle up: here we go.

There are four Fair Use factors, plus the Zeroth Factor. The Zeroth Factor (“Is the alleged Fair Use bad?“) weighs against Developer, because the alleged Fair Use is unrelated to the Bad thing. But it also weighs in favor of Developer, because we’ll assume it was pretty Bad and therefore NetPersonality is assumed to be a Bad Person and we don’t like Bad People. I’m going to call it a wash and move on to the actual factors.

First Factor: The purpose and character of your use.

Essentially, this question boils down to “Is the use transformative?” If it is, this factor weighs in favor of the use being fair, because we want to encourage people to create new art. If not, it doesn’t, because we are not as concerned about people who just copy stuff. What transformative means is… complicated. But in this context, any use we might care about, be it a playthrough  or a straight up game review, is probably not transformative. For purposes of my hypothetical, I have decreed it thus. So this one weighs against NetPersonality .

Second Factor: The nature of the copyrighted work.

This refers, basically, to two sub-questions.

First, is the infringed work mostly factual (for instance, a biography of Abraham Lincoln) or mostly original (for instance, a comic book about Abraham Lincoln secretly being a vampire hunter?) If it’s mostly factual, the use is more likely to be fair, because facts cannot be copyrighted, and there are only so many ways to describe a given set of facts.

Second, did the creator of the infringed work publish it before the infringement? If not, the use is less likely to be fair, because the decision as to whether to publish a work is a very important one and we want to protect creators against having that decision taken away from them by infringers.

Developer published the game (point: NetPersonality ) but it is a largely original work of fiction (point: Developer.) This factor probably weighs slightly in favor of Developer, but it’s really not a huge win for either side.

Third Factor: the amount and substantiality of the portion taken.

You will note that in my hypothetical I didn’t say whether the vid was a drive-by, a full review, or a complete playthrough. That makes a huge amount of difference and in many cases of this type will be largely determinative of the outcome, especially when the fourth factor is added in.

“Amount” just means “How much, percentage-wise, of the work did you copy?” Please note that there is NO magic number, for any type of work. There is no “eight bar rule,” no “twelve second rule,” and no “ten percent rule.” The more you copy, the more likely that the use is not fair, and vice versa. After that it is determined case by case.

“Substantiality” means “How important was what you took to the work?” Think of this, if you like, as the “Courts Hate Spoilers” rule. If you just take some random screenshot and put it up to show the general graphics style and production quality of the game, no big. If you show the six-minute cut scene that reveals the resolution of the entire plot, even if the game has six hours of cut scenes and six hundred hours of main storyline play, you are probably not making a Fair Use, you spoiling so-and-so.

If the vid is a playthrough, this factor weighs in favor of Developer. If it’s a straight review, it probably weighs in favor of NetPersonality unless the review includes extremely substantive copied material. If it’s a drive-by, it almost certainly weighs in favor of NetPersonality .

Now, pay attention: law is complicated. Despite what I said before, spoilers in and of themselves are okay, but copying substantial portions of the work which might contain them isn’t, largely because of the fourth factor. Namely…

Fourth Factor: The effect of the use upon the potential market.

Now this is where this hypothetical really gets interesting. Usually, this is about whether the alleged Fair Use will reduce the likelihood that people will buy the original work (or otherwise make it harder for the original creator to exploit it.) Making cheap, identical prints of someone else’s original artwork makes it harder for them to sell their own prints – that’s an easy one. Probably not a fair use.

Showing the play of the game including the ending makes it less likely that people will buy it because the ending has been spoiled – that’s a little harder. Arguably, the sort of person who watches a Let’s Play in its entirety wasn’t going to play the game anyway – or might still buy it because the playthrough looked like fun and they want to experience it themselves. Still probably not a fair use, but arguable.

Here, though, Developer demonstrably does not care if people post playthroughs. They have authorized the posting of playthroughs. It’s going to be very difficult for them to argue that another playthrough, more or less, will have any significant effect on the market.

They could raise a different objection. Specifically, that allowing NetPersonality to associate themselves with the game will, somehow, harm the market for the game. I think that this argument is novel, in terms of copyright law. Would it work? Hell if I know. I think it’s a desperate argument, but that doesn’t make it an automatic loser. Until we know, I think that in context, this factor weighs heavily in favor of NetPersonality .

Okay, let’s sum up our factorial analysis. (I have a degree in math and that was a brilliant pun. Fight me.)

Factor Zero: Wash.

Factor One: Developer by a mile.

Factor Two: Developer, barely.

Factor Three: Depends on nature of vid. Playthrough: Developer. Review: (Probably) NetPersonality .

Factor Four: Absent success of novel legal theory, NetPersonality in a walk.

Result: Who knows? Are you asking me if the host should honor the DMCA notice, or whether Developer would win a copyright infringement case? Or what kind of damages Developer would be entitled to if they did in fact win a copyright infringement case? (In the legal biz, if you win the case and get no damages, that may or may not be considered a win.) You didn’t even tell me if the vid was a playthrough or a review, for crying out loud. How am I supposed to know these things?

Okay, seriously. I will say the following:

  1. In my opinion there was a much, much better way for Developer to proceed than by filing a cold DMCA notice, and it wouldn’t have been hard (or that expensive.) Note that this is in my hypothetical. I do not know what the developer in the situation which inspired my hypothetical did. For all I know they did exactly what I would have advised. Or something even cleverer, impossible as that seems. (NOTE: While nobody’s talking, for once, good for them, at this point it is not clear if the developer did anything at all or if the net personality took down the video of their own accord.) Will I tell you what it was? No. That would constitute legal advice. Any good copyright attorney would probably arrive at it very quickly, and almost nobody who wasn’t a good copyright attorney would come up with it at all. This is why you should hire an attorney before you attempt Stupid Legal Tricks.
  2. If I were counsel for Host in my hypothetical, I would advise Host to honor the takedown notice. If NetPersonality filed a counter-notice I would advise the host that they should honor the counter-notice. NetPersonality isn’t required to justify the counter-notice, nor is Host required to evaluate it for legal sufficiency other than that it must meet all technical requirements for a counter-notice.
  3. If Developer hired me to sue NetPersonality for copyright infringement in my hypothetical, I would advise them that the suit was not a slam-dunk, which is what I tell all my clients, and that recovery of significant damages would be particularly tricky as the facts of the case are very unusual.

In any event, I hope you understand a little more than you did before about this kind of thing. As always, questions or comments are welcome. If this sort of thing interests you, there are more post at my blog, Legal Inspiration!, and you are welcome to check me out on Twitter.

Thanks for reading!

 

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Necrosphere

At its core, Necrosphere is a really good, well-made platformer. Developer Cat Nigiri clearly has an obvious talent for creating interesting puzzles and levels. This is even more impressive when you consider the fact that the game doesn’t shake up it’s formula all that often. Necrosphere isn’t minimalist in its level design, but it does show what a creative developer can do with limited resources. There is a good game buried in here.

Too bad it fucking sucks to play. (Editor’s Note: Well, we went close to a week without adding to the William Swear Tally. New record!)

Necrosphere’s big gameplay idea is that you only ever use two buttons. You move with the left and right directional buttons, dash by double clicking in one direction and you can use a jetpack by holding both down. On paper, this is really interesting; but sadly it just doesn’t feel good to play. In fact, it felt so bad that it ended up killing the game for me.

For games like this, where the focus in squarely on its mechanics, those mechanics need to be polished to a mirror sheen. That just isn’t the case here. There were a lot of times where I died in the split-second I needed to double click the directional button to dash. Sometimes the game didn’t register my button press, other times it did – but half a second too late, and I’d die mid-dash.

Not helping matters is how that effects simply trying to line the character up properly for a puzzle. There’s a section near the end, after you get the jetpack, when you find a tunnel overhead. I thought I might have to go up it using my new ability, but kept getting stuck as I was about one pixel to far on either side. So I tried, ever so slightly to adjust my position and ended up leaping away like the character had just been told that tunnel was actually a giant alien colon.

I died so many times here because the character fell faster than I could double tap the move button

The checkpoint system is another pain in the ass. The game has a pseudo-Metroidvaina style progression system. As you progress, you gain abilities that open up new areas, but each level ends with a warp back to the beginning hub area instead of connecting back to it through the level design. So in order to mark your progress, there are torches that light up as you pass them by to tell you where you’ve been. However, these are often placed in such a way to not really be all that helpful.

It’s possible to wonder off in a direction you weren’t meant to be, light a few torches, then have to go back because you can’t progress any farther. Then, once you should be headed back to that location, the torches are already lit, telling you you’ve already been there. If you’re anything like me, you’ll be quickly confused by that.

As you have to hold both directional buttons in order the jetpack straight up, you have very little control while using it.

The checkpoint issues also extend to the games respawn system too, but here it’s not too egregious. If you hit any of the spikes or fireballs that litter each stage you die and come back, as is par for the course in platformers. But there doesn’t seem to be a consistent logic behind where you respawn at. Sometimes you are placed at the last safe place you were in the middle of a puzzle, other times it brings you back to the start of the challenge, even if you died right at the exit.

This is a much bigger issue early on when you’re still getting use to the bizarre controls, which make the platforming feel more challenge than it really is. By the mid-game, even if the game still doesn’t feel good to play, you get familiar with the set up and having to repeat platforming sections usually isn’t as annoying as it once was. Although certain sections can still be quite frustrating.

In the end, I didn’t enjoy Necrosphere, but I’m not angry I played it. I don’t feel like the game maliciously wasted my time and I’m still interested in what developer Cat Nigiri does next. If you care more about your games being “interesting” instead of “technicality good”, then I can recommend Necrosphere. There is a good platfomer hiding somewhere here; I just wish it wasn’t buried under such piss poor controls. For five bucks, it’s a fine little experiment, but like Slayer going Nu-Metal, it’s an experiment that just doesn’t pay off in the end.

Necrosphere was developed by Cat Nigiri

Point of Sale: Steam

$4.99: is being spent on a game like this money’s version of hell?

A review copy of Necrosphere was provided by the developer.

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What is #Indieween and #GamesMatter?

Leaves are falling, coffee is being infiltrated by pumpkin spice, and grocery stores are selling candy by the barrel full. Autumn is here, with Halloween on its way and our next #GamesMatter event close on its heels.

We’d like to give you a preview of our #Indieween event through this post, so all of yous can be prepared for our next indie game holiday.

What is #Indieween?

#Indieween is our Halloween indie game celebration! We’ll be throwing a huge amount of indie games at the community as if they were candy. We also will be featuring developers who donate game codes to the #Indieween cause in streamed and written interviews.

On October 31st, Halloween(!) we will be giving away hundreds of random, spare keys donated to us by the members of the community as our “Trick or Treat” event. Be sure to follow #Indieween and #GamesMatter on that day to participate!

What is #GamesMatter?

#GamesMatter is a series of social media events organized by the folks at IndieGamerChick.com and IndieGamerTeam.com.The goal is to simply put games in the hands of those looking for something to play, and get them talking about some indies that need exposure. In each major #GamesMatter event, we aim to..

  • Interview developers in both written and video format
  • Stream featured games on Twitch.tv or similar sites
  • Give away up to several hundred free games to the indie game community.

Rules for #GamesMatter events

  • One code per game, per household.
  • Codes must be redeemed immediately.
  • Tell us about the game you won! Did you like it? Why or why not? Would you recommend it to others? Details!
  • Have fun. Be chill. Don’t be rude to organizers or participants.

How to Contribute as a Game Developer

Email one of our event organizers! If you want to be involved, please let us know exactly what you want to do to help! If you have game codes to give away, or want to be interviewed by one of our team members, please reach out to us on Twitter or email one of our event organizers!

By submitting your game to participate, we will make you a custom “digital booth” page. Your digital booth will have screenshots and info about your game and a schedule for any giveaways or interviews.

How to Contribute as a Community Member

Share the events with your friends! We also accept extra Steam keys for giveaway if you want us to distribute them. If you want to give out games yourself, stream under the #GamesMatter tag, or host your own whole event please feel free to do so! Just let us know, so we are able to spread the word about your efforts. All we ask is that you adhere to the above rules of participation.

When is your next event?

October 27 -> November 3rd

___

Reach out to any of our team for any questions you have about #Indieween!

Sam Adonis – Twitter Email

IndieGamerChick – Twitter

OzIndie – Twitter

Marc Straight –  Twitter

 

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What Ever Happened to IndieGameStand?

IndieGameStand.com was a website founded to be a competitor to things like the Humble Bundle store or GamersGate. It would allow a wider range of games than Steam would at the time and be more accessible and profitable for game developers. The original owner of IndieGameStand even maintained a blog, which you may be familiar with for breaking the news about how bad key scammers like G2A were.

Fast forward to Spring of 2016 when IndieGameStand was sold to a new company. Everything was fine for a while, though there were more frequent issues and less communication from the site administrator. The site went down for maintenance in July of 2017, promising to make things better.

……..

IndieGameStand is still down. Developers have not been able to access their earnings, or gamers able to access their games. People enrolled in the once reputable storefront’s monthly curation service are even unable to cancel their subscriptions. Concerned customers have been trying to find contact info for the owner of the site for weeks now, which you can read about on Steam. There has been little luck in this pursuit. Everything’s gone, and the owner is in the wind.

This is crazy levels of frustrating, not only as someone who used to love IndieGameStand, but as a fan of alternatives to Steam. If anyone has any more insight as to solutions for S.O.L. gamers and developers, please let me know so I can update this post.

For full disclosure, I spent a few months writing for IndieGameStand’s blog with the original owners, and as their Reddit/r/GameDeals representative.

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