Google Distances Itself From Alex Hutchinson's Game Streaming Royalty Comments

[lexluthermiester]

Fair use, as LTT says, is not so much as cut & dry.

Yes it is. There is literally a mountain of legal code and case law that supports "fair-use". The boys at LTT are not legal experts.

 

[R0H1T]

"Fair Use" is a legal argument is it not? Or is it so black & white that it's never contested in courts?

 

[Valantar]

Yes it is. There is literally a mountain of legal code and case law that supports "fair-use". The boys at LTT are not legal experts.

It really, really isn't. That mountain of case law exists exactly because these things are extremely complicated. And a lot of that mountain contradicts other parts of it. Fair use is - and should be - an important legal protection, but it isn't and will never be a simple one.

 

[R0H1T]

For instance ~

Oracle v. Google

At issue in Oracle v. Google is whether Oracle can claim a copyright on Java APIs and, if so, whether Google infringes these copyrights. When it implemented the Android OS, Google wrote its own version of Java. But in order to allow developers to write their own programs for Android, Google's...

www.eff.org

Apples to peaches comparison perhaps but it's not as "simple" at it sounds.

 

[Valantar]

@lexluthermiester One way of looking at this: if a musician wants to perform a piece of music live at a concert, but said piece of music was written by another person, they still pay a license. It's a different license than the one you pay for playing another person's performance of said music, and it is typically a lot lower, but they still pay a license. That is a practice that is quite analogous to what a game streamer does with a game.

 

[silentbogo]

If they can get away with it, then music also should be royalty free.

I guess you've missed the part of our digital age, where publishers and devs pay streamers to play their games (as the cheapest and the most effective route of advertising with highest rate of engagement).
And you've missed the part where Nintendo tried enforcing similar views on YT to the point where not only their "subscription" model for streamers failed and caused outrage in both gaming and streaming communities, but more importantly any more or less significant streamer and game reviewer completely stopped making nintendo-related content.

But that goes both ways. If a song plays on the radio for ~3 minutes, you listen to it for free for the same time, and the station pays a royalty to the rightsholder for the right to distribute the music.

Music and TV industry is broken too. Just look at DMCA it was put together so fast and with so little thought, that even 10 years ago it was considered dated and today it looks ridiculous.
It's already screaming to be changed or replaced with more fitting alternative, because not only streamers suffer from this, but also the music/TV industry itself.
Just like with gaming - there are always alternatives. Just like gamers have an option to switch to indie content, streamers and content creators are quickly transitioning to open-domain content or promote other indie creators for the sake of mutual benefit (artists and musicians I mean).
If things go the way they go, big media may collapse on itself at some point.

"Free advertising" is a convenient excuse people have made up

It is not an excuse. Chess players don't pay royalties to ICF for every public match, tabletop streamers don't pay to Hasbro, Magic the Gathering meetups don't pay Wizzards of The Coast for each event, musicians don't pay every time they use Gibson or Roland gear on stage, basketball players don't pay Nike - Nike pays them etc. etc. etc. I'm not saying it should be wild west for content creators, but simply stating that "give us more money cause it has our name on it" is idiotic way to engage with your potential long-term customers.
Streamers already paid for games, and since those games don't include any special commercial licensing clauses, then Alex Hutchinson can go f#$% himself.

 

[R0H1T]

Chess players don't pay royalties to ICF for every public match

ICF Who? Did they invent chess or have lifetime royalties/copyright claim on it? Copyright law is broken IMO but no one who's not invented or is the sole owner of such a game has any rights on whatever sport or game you can think of, the argument doesn't even compute!

 

[lexluthermiester]

As I said: there are many good arguments for reforming our current licensing system for media, but scrapping it outright and making everything a free-for-all under the umbrella of "but it's free advertising!" is a cop-out that is ultimately nothing more than a raised middle finger towards artists everywhere.

How so? Are the software makers not being paid for the games being played? Are they not receiving additional sales from the side-effect promotion of said games? Streamers are not giving a "raised middle finger" to the devs of said games, they are actively promoting them. Your suggestion is deeply flawed conceptually.

One way of looking at this: if a musician wants to perform a piece of music live at a concert, but said piece of music was written by another person, they still pay a license.

LOL!! When was the last time you went to a concert? My guess is never. I have been to many concerts in many nations and bands/artists perform music they didn't create all the time. And they are universally lawfully allowed to do so. Your comment demonstrates very clearly that your understanding of how things work is as flawed as Mr Hutchinson's comment. Not debating with you on this matter again.

 

[Valantar]

Music and TV industry is broken too. Just look at DMCA it was put together so fast and with so little thought, that even 10 years ago it was considered dated and today it looks ridiculous.
It's already screaming to be changed or replaced with more fitting alternative, because not only streamers suffer from this, but also the music/TV industry itself.
Just like with gaming - there are always alternatives. Just like gamers have an option to switch to indie content, streamers and content creators are quickly transitioning to open-domain content or promote other indie creators for the sake of mutual benefit (artists and musicians I mean).
If things go the way they go, big media may collapse on itself at some point.

I never said we could keep using our current system, in fact I specifically said that it is deeply flawed. I also pointed out that IMO any licensing system like this needs to differentiate between what we could call "professional" and "casual" streaming. This would of course open up a massive debate on how to delineate this, but it needs to happen. That's the fault of Nintendo's system, not that they tried it at all. And fees need to be reasonable. Heck, at least in Norway, the music industry is a pretty good example here - the fees paid for either playing music in public or performing someone else's music are a flat rate, relatively affordable, paid to a centralized organization that ensures artists get their due, and it's a rather open and transparent system. (That is of course a stark difference from the "download a song, get sued for $20 000" approach that the very same industry has also stood for.)

It is not an excuse. Chess players don't pay royalties to ICF for every public match, tabletop streamers don't pay to Hasbro, Magic the Gathering meetups don't pay Wizzards of The Coast for each event, musicians don't pay every time they use Gibson or Roland gear on stage, basketball players don't pay Nike - Nike pays them etc. etc. etc. I'm not saying it should be wild west for content creators, but simply stating that "give us more money cause it has our name on it" is idiotic way to engage with your potential long-term customers.
Streamers already paid for games, and since those games don't include any special commercial licensing clauses, then Alex Hutchinson can go f#$% himself.

There are quite a few issues with your comparisons here though. Physical products like shoes and clothes can't be freely copied, and are often usable outside of the play/performance context, meaning that there are more parts to it than just as a tool for doing a specific thing. As such, it has more advertising value than a game does (you can't wear your copy of CoD to school to show that you're a fan, after all). Musicians have close collaborations with instrument makers, and typically spend tons of money on instruments. Instruments are also not mass-market products. Gaming meetups and small scale streaming would to me fall within the same bracket, i.e. one that should obviously not pay royalties - but if someone made a living out of exclusively streaming a small selection of tabletop games, then yes, I think it would be fair for them to pay a modest royalty for that. As for chess ... does the ICF have even the most tenuous claim to ownership over the game? I don't see how they could. And nobody can demand a royalty for something they don't own, after all. But in short, none of your examples are actually the same as a streamer using a game as the basis of creating their stream. That obviously doesn't mean that they don't add very much to the end product (if you're in doubt about that, read my previous posts), but arguing that a game is replaceable in terms of creating the stream doesn't mean that having a game can be replaced - and for professional streaming, that should be licensed.

How so? Are the software makers not being paid for the games being played? Are they not receiving additional sales from the side-effect promotion of said games? Streamers are not giving a "raised middle finger" to the devs of said games, they are actively promoting them. Your suggestion is deeply flawed conceptually.

Apparently I need to repeat myself:

There are so many examples of creators - from musicians to game developers - who end up not making money because people get access to their products in some form for free. There have been quite a few indie developers who have spoken up about their games having more cumulative view time on streams on Twitch and YouTube than playtime on any platform, and that (especially for shorter and more story-driven games) streaming effectively replaces playing, leading to lower sales as the vast majority of people who have seen the game streamed then don't see a reason to buy it and play it for themselves.

LOL!! When was the last time you went to a concert? My guess is never. I have been to many concerts in many nations and bands/artists perform music they didn't create all the time. And they are universally lawfully allowed to do so. Your comment demonstrates very clearly that your understanding of how things work is as flawed as Mr Hutchinson's comment. Not debating with you on this matter again.

Uh ... you know they don't have to tell you that they licence those songs, right? But all major artists do. Minor artists? No, because that would be pointless and harmful to musicians everywhere. Which is exactly why I have repeatedly said that only large-scale, for profit "professional" streaming should be subject to royalties.

 

[Sandbo]

The difference between this and music is that, you might lose a customer if someone broadcasts a song without permission and possibly do it again (which allowed the public to access it easily), eventually the public loses incentive to pay for the song.
However, seeing a game streaming does not turn you into a gamer, technically you still have no access to the game.
One can argue after watching the game someone may lose the incentive to buy it, but then there are also an amount of people becoming potential buyers.

If the game developers manage to show DATA to PROVE that they have lost money for this reason, I think they should go ahead.
Second, I think they can just do it and put it into the EULA to turn it into a business model. Just let people vote with their wallets. I am more than glad to see the outcome.

 

[silentbogo]

Physical products like shoes and clothes can't be freely copied, and are often usable outside of the play/performance context, meaning that there are more parts to it than just as a tool for doing a specific thing.

Remember, that this is not the issue of piracy. People that stream already paid for their license to use the product and are within their legal boundaries to use it the way they see fit. Video game is a video game. As I said previously, the only thing they can do is create some semblance of personal and commercial licensing for their games in order to get more money out of content creators. But that gives people options, and options are bad when you want to impose control on your consumers. Streaming a song is an equivalent of "sharing a product". Streaming a game is an equivalent of "demonstrating the product". You aren't giving away copies of the game over twitch, and that's a big difference.

Which is exactly why I have repeatedly said that only large-scale, for profit "professional" streaming should be subject to royalties.

That's not how it works. Big streamers can afford to pay royalties, but they don't have to. If EA says "streaming Apex now costs this much", they'll simply sign a deal with Epic to stream Diabotical or something else. Companies no longer make big hits, big streamers do. I'm not touching on fairness off this situation, I'm just stating the way things are. Things like PUBG, Minecraft, Apex, Among Us, Fortnite, Overwatch would be dead by now, if those people didn't do what they do, and publishers know that. This is why google distanced itself from Hutchinson's opinions, and this is why mass media took it so badly.

 

[Caring1]

I guess you've missed the part of our digital age, where publishers and devs pay streamers to play their games (as the cheapest and the most effective route of advertising with highest rate of engagement).

I am familiar with product placement as that is all it is when promoted by the developers.
But when streamers take it upon themselves to show content without permission for the sake of revenue, then royalties should be paid.
People that argue against it and tell others with opposing views to pull their head out of their arse, need to broaden their view and consider the bigger picture, just because they believe their viewpoint, doesn't make them right.

 

[Sandbo]

I am familiar with product placement as that is all it is when promoted by the developers.
But when streamers take it upon themselves to show content without permission for the sake of revenue, then royalties should be paid.
People that argue against it and tell others with opposing views to pull their head out of their arse, need to broaden their view and consider the bigger picture, just because they believe their viewpoint, doesn't make them right.

I agree that developers have complete control on what they want to do with the digital contents, and they are also completely right to have any FUTURE release of any form of their content starting to charge royalties. Streamer/People will vote with their money.

What piss me off is how the streamers FIRST successfully developed an ecosystem around streaming and gaming, and THEN some salty developers coming out crying a river claiming that they should have a share. Now the way I see it, some developers want to change the EULA for EXISTING games and content, and threaten streamers to pay or they have their videos pulled off the shelf. Yes the EULA might have granted room for such change, but I cannot comprehend how this could be right.

Streamers worried about getting their content pulled because they used music they didn't pay for should be more worried by the fact that they're streaming games they didn't pay for as well. It's all gone as soon as publishers decide to enforce it.

-Alex Hutchinson

https://twitter.com/i/web/status/1319305552560836609

 

[Valantar]

Remember, that this is not the issue of piracy. People that stream already paid for their license to use the product and are within their legal boundaries to use it the way they see fit. Video game is a video game. As I said previously, the only thing they can do is create some semblance of personal and commercial licensing for their games in order to get more money out of content creators. But that gives people options, and options are bad when you want to impose control on your consumers. Streaming a song is an equivalent of "sharing a product". Streaming a game is an equivalent of "demonstrating the product". You aren't giving away copies of the game over twitch, and that's a big difference.

That's not how it works. Big streamers can afford to pay royalties, but they don't have to. If EA says "streaming Apex now costs this much", they'll simply sign a deal with Epic to stream Diabotical or something else. Companies no longer make big hits, big streamers do. I'm not touching on fairness off this situation, I'm just stating the way things are. Things like PUBG, Minecraft, Apex, Among Us, Fortnite, Overwatch would be dead by now, if those people didn't do what they do, and publishers know that. This is why google distanced itself from Hutchinson's opinions, and this is why mass media took it so badly.

... so in a discussion about a proposition of how things ought to work, your stance is "I don't care about how things ought to work, this is how they are". Fatalism at it's finest, that. At least we can be 100% sure that nothing ever gets better if that's the way we approach new problems.

This is also why I said there should be an industry body regulating these things, as individual developers or publishers deciding things would be a very bad idea in so many ways. Industry standard rates, industry standard agreements, industry standard regulation, bulk payment to a 3rd party which then distributes the royalties according to what is actually played, etc. It really wouldn't be very hard. The main issue here would likely be AAA studios demanding a bigger share of royalties due to higher production costs, which would again leave small developers in the lurch (just like small and/or independent artists get screwed over by music streaming).

As for my point on physical products not being copiable, I wasn't specifically pointing to piracy, but rather the fact that the only way to achieve the desired effect from these products is to physically own them, while the same isn't true for digital goods. As I've argued for above, there are plenty of examples where (at least for small indie developers) watching streams of their games outright replaces game sales, as viewers feel they have experienced all the game has to offer. I'll admit my wording was too vague on that though.

 

[neatfeatguy]

If a streamer gets access to a game for free simply because they are a big name, I see no harm in expecting the streamer to pay for a copy of the license for the game over simply being handed something for free.

If a streamer has already paid for a license for the game, then they've already paid and there is no issue.

 

[Kokotas]

Expect new game licenses for streamers to be a thing in the next few years. There's a lot of money being made and not enough fingers in the pie.

 

[lexluthermiester]

Expect new game licenses for streamers to be a thing in the next few years. There's a lot of money being made and not enough fingers in the pie.

Blizzard already tried that and streamers stopped streaming their games. As a result Blizzard has lost a lot of sales, exposure and respect.

 

[Sandbo]

Blizzard already tried that and streamers stopped streaming their games. As a result Blizzard has lost a lot of sales, exposure and respect.

 

[Valantar]

Blizzard already tried that and streamers stopped streaming their games. As a result Blizzard has lost a lot of sales, exposure and respect.

Which is a great example of why something like this can't be implemented willy-nilly by individual developers (or even publishers), but needs to be a thoroughly worked-through system with industry-wide backing, that is also open for anyone and everyone who wants to be a part of it. Anything less than that will be a useless mess.

 

[Papahyooie]

It doesn't really matter what anyone thinks. The law (in the US at least, which is where I'm basing this comment off, because Google is from here) at least supports streaming as a transformative work. The streamers are not streaming "the game" they are streaming "themselves playing the game." It falls under the same use policy as parody. Copyright law in the US focuses on a few things, but most of all, are you using the copyrighted work in a transformative way, or simply distributing it as is. Whether you make profit is a factor in copyright infringement cases, but not nearly weighted as heavily as transformativeness.

Effectively in the real world, if a game company issues you a cease and desist order, you're going to cease and desist because you can't afford a lawyer as good as they can, and they'll break you financially before it ever gets to a judge. But as others have said, they'd be shooting themselves in the foot. Streaming has led to more sales in shorter times than any other advertising method in history. But the law is on the side of the streamer.

 

[lexluthermiester]

It doesn't really matter what anyone thinks. The law (in the US at least, which is where I'm basing this comment off, because Google is from here) at least supports streaming as a transformative work. The streamers are not streaming "the game" they are streaming "themselves playing the game." It falls under the same use policy as parody. Copyright law in the US focuses on a few things, but most of all, are you using the copyrighted work in a transformative way, or simply distributing it as is. Whether you make profit is a factor in copyright infringement cases, but not nearly weighted as heavily as transformativeness.

Effectively in the real world, if a game company issues you a cease and desist order, you're going to cease and desist because you can't afford a lawyer as good as they can, and they'll break you financially before it ever gets to a judge. But as others have said, they'd be shooting themselves in the foot. Streaming has led to more sales in shorter times than any other advertising method in history. But the law is on the side of the streamer.

Exactly correct on every point. Canada and Mexico have similar legal statutes, so it would seem that North America is united in this matter.

 

[Dredi]

Exactly correct on every point. Canada and Mexico have similar legal statutes, so it would seem that North America is united in this matter.

EU as well. Except that you’ll be less likely to go bankrupt if you decide to see the legal road through.

 

[Papahyooie]

Also, just for trivia's sake, people above were talking about musicians acquiring licenses for covering songs: The responsibility for acquiring licenses falls to the VENUE. Not the musician. Chances are, if you go to your favorite band's concert and they play a cover song, the artist has had no hand in obtaining licensing. Large venues like stadiums have contracts with every Performing Rights Organization that allow mostly any song to be performed in their venue by any artist. Even large bars may have paid for licensures for the bands that play there, to keep themselves out of hot water, but in practice it's very rare for this to be enforced even if they don't. The only time an artist needs to personally acquire mechanical rights to a song is if they plan to record it, or if they perform in their own venue.

(Source: I'm a working musician in a cover band, and have dealt with this extensively)

 

[DemonicRyzen666]

If you make money from only the game you're streaming, yes
Does anyone make money from just streaming the gaming their playing ?
I'm pretty sure they have ads for other product endorsements for the money.
If you run ads for other stuff for money then, no.

 

[silentbogo]

Fatalism at it's finest, that. At least we can be 100% sure that nothing ever gets better if that's the way we approach new problems.

Once again, you fail to see my point because you are too focused on your own opinion. Let me rephrase that in a friendlier tone.
Things won't change, because everyone is happy with the way things are right now, except a few dum-dums from the industry who forgot 00s are over.
Streamers have every legal right to stream both under law and under corresponding EULAs, publishers allow and encourage it (and sometimes pay for or sponsor streaming events). These aren't opinions, these are facts. BTW, the paradigm of "streaming as advertisement" came from game publishers themselves, streamers weren't spamming Ubisoft, Valve and Epic with offers - it was the other way around.
You are looking for a solution to non-existing problem.

Chances are, if you go to your favorite band's concert and they play a cover song, the artist has had no hand in obtaining licensing

If Ozzy had a dollar for every public cover of "Crazy Train" and "Iron Man", he'd be wealthier than Bill Gates and Jeff Bezos combined ))))