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

[rtwjunkie]

Gaming is a different beast than music imo. The amount of time invested really does make a difference. I listen to a few songs it takes 12 minutes, I play a game for 2-150 hours. Also, if your a music person, you would be smart to contact the popular game streamers to play your music for free - they would buy it. That is the nature of everything now, influencers. I mean I have bought headphones because of ZEOS reviews in past, he doesn't pay companies to send him headphones, they send them because they know they will sell more.

Also consider the amount of money and labor time invested in a game. It is way more than a song. I have no problem with the streamer having to pay a small royalty fee to use someone else’s labor and money to make their own money, provided the EULA doesn’t explicitly deny it.

I remember Joss Stone saying she doesnt care about piracy as long as fans attend concerts.

This is only because artists don’t make much money from song sales. The vast majority of what they make comes from concerts.

 

[lexluthermiester]

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

Did not know that about the EU. Good to know.

 

[Lomskij]

A legit question:

There are quite a few videos on Youtube showing how to use Photoshop, how to create a table on Excel etc etc. These videos obviously generate a stream of revenue; should the video creators pay additional licencing fees to Adobe, Microsoft and so on? Yes/no, and why?

 

[lexluthermiester]

A legit question:

There are quite a few videos on Youtube showing how to use Photoshop, how to create a table on Excel etc etc. These videos obviously generate a stream of revenue; should the video creators pay additional licencing fees to Adobe, Microsoft and so on? Yes/no, and why?

No. Falls under fair use as an instructional/educational effort.

 

[Lomskij]

A follow up question, I suppose (by no means legal, just from moral / fairness perspective):

What is the consumption of a video game? Let's say consumption of music is listening to it (so by listening to a song on radio you effectively consume it, and radio station effectively is a "reseller"). If consumption of a video game is playing the game, wouldn't then watching someone playing it be an equivivalent of watching someone eating a cake?

 

[lexluthermiester]

Let's say consumption of music is listening to it (so by listening to a song on radio you effectively consume it, and radio station effectively is a "reseller").

Given that anyone can lawfully record music off the radio, that's a fair analogy. And people generally pay for that by listening to commercial breaks.

If consumption of a video game is playing the game, wouldn't then watching someone playing it be an equivalent of watching someone eating a cake?

This is where the transformative nature of the act of streaming comes in. Streamers don't just show the gaming running straight off the system it's being played on. They also generally make commentary and have discussions with viewers in chat who are watching the stream. That renders the action of playing a game for/with an audience a drastically different experience from the act of playing the game alone. This is a protected activity.

 

[Valantar]

A follow up question, I suppose (by no means legal, just from moral / fairness perspective):

What is the consumption of a video game? Let's say consumption of music is listening to it (so by listening to a song on radio you effectively consume it, and radio station effectively is a "reseller"). If consumption of a video game is playing the game, wouldn't then watching someone playing it be an equivivalent of watching someone eating a cake?

That's an excellent question. You really have no idea. I'm currently a bit less than 2 years into a game studies Ph.D., and I would say I might be able to somewhat answer that question, though with tons of caveats attached. This is probably way more than you were asking for, but I'll give it a go - feel free to skip it if it gets tedious My best attempt at delineating this (based on what I would say is a severely lacking grasp of this facet of game ontology, despite it being closely related to my thesis) goes something along the lines of this. I'll keep it in spoiler tags just because it's rather OT.

Spoiler: Overlong rant that probably takes way too long to get to the point

- A game until it is played exists only as potential; a set of rules, structures, fictional elements and other things necessary for the playing of the game. We can of course look at the game files and examine the technologies involved in playing, but no such examination will tell us anything much about what playing the game is like. This can to a certain degree be said of other media too (looking at a DVD won't tell you what watching a movie is like), but most other media still have a somewhat fixed form, while games are fundamentally variable in both their realization and outcome. (Which is rather similar to theatre, which incidentally also shares the term play for what happens there, after all.) A game can thus only be realized by playing it - there are typically many, many ways of playing a game, but play is the only way through which it can be realized.
- When the game is played, what is happening is one specific realization of the (near infinite in most video games) possible variations of play of that game. Some would call this a simulation of a possible world. The player, game, and mediating technologies all enter into a mutually constitutive relation - a player only becomes a player when playing a game; a game only becomes a game when being played by one or more players; and the technology mediating this relation shapes how both players are able to be players and games are able to be games. Each part of the relation shapes the relation in fundamental ways.
- An important aspect of this is that what the player experiences, unlike with other media, can't be called a representation, but rather a form of prosthetic sensory and interactive relation to a world through a medium. Players generally do not have the analytical distance and critical consciousness of viewers, what Edmund Husserl called image consciousness. In other words: when you're playing a game, you're (typically) not consciously distanced enough from what is happening to think of what you are seeing as an image.
- This is where the crucial difference between playing a game and watching someone play a game comes in: Image consciousness is absolutely present for someone watching a stream. The regard of the viewer is much more distanced, they are not experiencing the gameworld as their experience through a technologically mediated prosthetic sensory apparatus, but rather they see what they are viewing as some variation of images on a screen, representing a gameworld. This applies even if the person playing the game is entirely invisible, as the viewer will inevitably know that they are not in control or even really involved in the playing of the game. So, the watching of a game is fundamentally different from the playing of a game.
- Now, let's get back to the core question: what is the consumption of a video game? To answer this we must first understand what "consuming" media means - this is after all a term with a rather extreme ideological bent thanks to being coined largely by ultra-capitalist media corporations. I'm choosing to understand "consume" as roughly synonymous to "experience", both because of the metaphorical undertone of "consuming" media (it's not like you can actually eat it, but you can still take it in through other parts of your sensory apparatus, just without the part where it then ceases to exist outside of your body) and because it's a more neutral term overall. So then, how does one experience a video game? As I've tried (and likely failed!) to outline above, you kind of have to play a game to experience it as it was made to be experienced. What you are experiencing when watching a game stream is not the game, but rather someone else's realization of the game, viewed from an outside perspective.
- But there is a but: that still doesn't mean that playing the game is the only way of experiencing the game, as ultimately what is created when the game is played is fundamentally based on the game. If the game wasn't part of that relation, the relation would be impossible. And there are things created in the relation of play that transcend the specific play setting, such as access to the gameworld and the people and things in it. Similar to how if someone retells the story of Lord of the Rings to you, you haven't read it, but you still know its story. So, what you are watching on the stream isn't the game as a game, but it is one version of the game as remediated through someone else's play.
- This means that there is of course an inherent ontological "ranking" between these two experiences: one can only exist after the other. Someone has to play for a stream/recording/whatever to exist. But does that mean that only the former qualifies as experiencing the game? That, in my opinion, would be taking it too far.

Tl;dr: I'll get back to you in a couple of years when I finish my Ph.D.

I would argue that this ultimately means that when it comes to licensing, you can't really argue that game streaming is sufficiently transformative to fulfill fair use requirements, as play is at its very core transformative - the relation between the player, the PC and the game is a transformative relation that creates something that didn't exist previously (only as potential), yet it is also the only way that the game can be realized. To be transformative in the manner that qualifies as fair use in my understanding, this would need to be coupled with an external perspective that is rarely if ever part of play: commmentary, analysis, remixing, creative re-use, etc. Making a spectacle out of the act of play does IMO not rise to this level of transformation.

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.

So radio stations that play ads should never have to pay royalties for the music they play? That argument doesn't hold much water, sadly. The playing of the game is what allows them to have ads; without the game there would be no stream, thus no ads, thus no income.

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.

I do get what you're trying to say, and I understand where it's coming from. But the problem is that it really isn't a non-existent problem. It's a very real problem where creators of small games - especially short, story-driven ones, but it's definitely not exclusive to them - have the "choice" of either not having an income because nobody knows about them, or not having an income because people watched a streamer finish the game and don't see the value of buying it. This "free advertising" model only really works for companies already big enough to survive on their own. It often has the opposite effect on smaller creators. Of course there are always exceptions - like Fall Guys! - but they are the exception, not the rule. For every Fall Guys, there are hundreds of developers who don't gain any sales from streamers playing them, and thousands who are effectively barred from getting any attention at all. You are arguing for preserving a system that is very much rigged to support those already in power (whether or not it was made consciously or grew organically). Streamers definitely weren't spamming Ubisoft, Valve and Epic with sponsorship demands, but once that precedent was set, the bar for entry for smaller developers got a lot higher, all the while their access to publicity got ever less predictable. This also drives developers towards making "stream-friendly" games, i.e. games that are both fun to watch and play, but most importantly, aren't "done" after a few hours. This has the potentially to significantly limit what kind of games are made, as small developers are typically in very precarious economic positions. I definitely see a reason to push back against a system that risks enforcing conformity and uniformity among the games that are made, regardless if the same system works well for big, wealthy game makers.

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 ))))

I know that was meant as a joke, but ... that's mainly because the music industry is messed up enough that the record companies get far more from this than artists do, not because they don't get paid. Also, royalties for public presentation of media aren't typically calculated on a per-play basis AFAIK, and typically the systems are tuned to distribute wealth a little more evenly than the "market" of music playback would otherwise make it, ensuring that small artists get a bit more in a relative sense, while the huge ones get a bit less. IMO this is pretty fair, though of course the part where the record label then takes 70% of the money isn't whatsoever.

 

[Papahyooie]

That's an excellent question. You really have no idea. I'm currently a bit less than 2 years into a game studies Ph.D., and I would say I might be able to somewhat answer that question, though with tons of caveats attached. This is probably way more than you were asking for, but I'll give it a go - feel free to skip it if it gets tedious My best attempt at delineating this (based on what I would say is a severely lacking grasp of this facet of game ontology, despite it being closely related to my thesis) goes something along the lines of this. I'll keep it in spoiler tags just because it's rather OT.

Spoiler: Overlong rant that probably takes way too long to get to the point

- A game until it is played exists only as potential; a set of rules, structures, fictional elements and other things necessary for the playing of the game. We can of course look at the game files and examine the technologies involved in playing, but no such examination will tell us anything much about what playing the game is like. This can to a certain degree be said of other media too (looking at a DVD won't tell you what watching a movie is like), but most other media still have a somewhat fixed form, while games are fundamentally variable in both their realization and outcome. (Which is rather similar to theatre, which incidentally also shares the term play for what happens there, after all.) A game can thus only be realized by playing it - there are typically many, many ways of playing a game, but play is the only way through which it can be realized.
- When the game is played, what is happening is one specific realization of the (near infinite in most video games) possible variations of play of that game. Some would call this a simulation of a possible world. The player, game, and mediating technologies all enter into a mutually constitutive relation - a player only becomes a player when playing a game; a game only becomes a game when being played by one or more players; and the technology mediating this relation shapes how both players are able to be players and games are able to be games. Each part of the relation shapes the relation in fundamental ways.
- An important aspect of this is that what the player experiences, unlike with other media, can't be called a representation, but rather a form of prosthetic sensory and interactive relation to a world through a medium. Players generally do not have the analytical distance and critical consciousness of viewers, what Edmund Husserl called image consciousness. In other words: when you're playing a game, you're (typically) not consciously distanced enough from what is happening to think of what you are seeing as an image.
- This is where the crucial difference between playing a game and watching someone play a game comes in: Image consciousness is absolutely present for someone watching a stream. The regard of the viewer is much more distanced, they are not experiencing the gameworld as their experience through a technologically mediated prosthetic sensory apparatus, but rather they see what they are viewing as some variation of images on a screen, representing a gameworld. This applies even if the person playing the game is entirely invisible, as the viewer will inevitably know that they are not in control or even really involved in the playing of the game. So, the watching of a game is fundamentally different from the playing of a game.
- Now, let's get back to the core question: what is the consumption of a video game? To answer this we must first understand what "consuming" media means - this is after all a term with a rather extreme ideological bent thanks to being coined largely by ultra-capitalist media corporations. I'm choosing to understand "consume" as roughly synonymous to "experience", both because of the metaphorical undertone of "consuming" media (it's not like you can actually eat it, but you can still take it in through other parts of your sensory apparatus, just without the part where it then ceases to exist outside of your body) and because it's a more neutral term overall. So then, how does one experience a video game? As I've tried (and likely failed!) to outline above, you kind of have to play a game to experience it as it was made to be experienced. What you are experiencing when watching a game stream is not the game, but rather someone else's realization of the game, viewed from an outside perspective.
- But there is a but: that still doesn't mean that playing the game is the only way of experiencing the game, as ultimately what is created when the game is played is fundamentally based on the game. If the game wasn't part of that relation, the relation would be impossible. And there are things created in the relation of play that transcend the specific play setting, such as access to the gameworld and the people and things in it. Similar to how if someone retells the story of Lord of the Rings to you, you haven't read it, but you still know its story. So, what you are watching on the stream isn't the game as a game, but it is one version of the game as remediated through someone else's play.
- This means that there is of course an inherent ontological "ranking" between these two experiences: one can only exist after the other. Someone has to play for a stream/recording/whatever to exist. But does that mean that only the former qualifies as experiencing the game? That, in my opinion, would be taking it too far.

Tl;dr: I'll get back to you in a couple of years when I finish my Ph.D.

I would argue that this ultimately means that when it comes to licensing, you can't really argue that game streaming is sufficiently transformative to fulfill fair use requirements, as play is at its very core transformative - the relation between the player, the PC and the game is a transformative relation that creates something that didn't exist previously (only as potential), yet it is also the only way that the game can be realized. To be transformative in the manner that qualifies as fair use in my understanding, this would need to be coupled with an external perspective that is rarely if ever part of play: commmentary, analysis, remixing, creative re-use, etc. Making a spectacle out of the act of play does IMO not rise to this level of transformation.

I'd expect such an argument to come up when this finally makes it to the supreme court after some game company is silly enough to take it that far lol. To be honest though, you made a very good argument for streaming being a transformative work, and then concluded that it wasn't. I'm not sure where the conclusion came from. Not saying it's invalid, just not sure I completely follow. I understand what you said, but you seem to have (at least in your text) made quite a logical leap without explaining it. Other than that, very good points!

Commentary and analysis are almost always part of streaming, so I'd argue that it definitely meets the criteria to be a transformative work. There are lots of streamers who don't do that, and just sit there playing the game quietly... but nobody watches them anyway lol. I guess if it came to that, some individuals would qualify, and others would not, and the individual "works" would have to be examined. That would be hugely inefficient, and a supreme court case would most definitely attempt to address the entire concept of streaming and not an individual. As such, I think it'd be hardly likely for the courts to determine against the streamers because the defendants would definitely bring in the streaming industry at large, and explain how it is normally transformative. After all, you can perfectly legally watch a movie on youtube, and comment on it, because commentary is a transformative work.

 

[Valantar]

I'd expect such an argument to come up when this finally makes it to the supreme court after some game company is silly enough to take it that far lol. To be honest though, you made a very good argument for streaming being a transformative work, and then concluded that it wasn't. I'm not sure where the conclusion came from. Not saying it's invalid, just not sure I completely follow. I understand what you said, but you seem to have (at least in your text) made quite a logical leap without explaining it. Other than that, very good points!

I did say it was transformative, but I also said I don't see it as sufficiently transformative to warrant fair use coverage, seeing how play is already transformative in and of itself. One could then just as well reverse the argument and say that game piracy is a logical impossibility as each playthrough of a pirated game will always be fundamentally different than "the game" and thus fall under fair use - though that would of course be rather absurd. But theatres still pay royalties for putting on plays (at least the ones that are still under copyright! This also somewhat explains the popularity of old, classic plays that are out of copyright), despite that at the very least are as transformative as a streamer playing a game for an audience.

Commentary and analysis are almost always part of streaming, so I'd argue that it definitely meets the criteria to be a transformative work. There are lots of streamers who don't do that, and just sit there playing the game quietly... but nobody watches them anyway lol. I guess if it came to that, some individuals would qualify, and others would not, and the individual "works" would have to be examined. That would be hugely inefficient, and a supreme court case would most definitely attempt to address the entire concept of streaming and not an individual. As such, I think it'd be hardly likely for the courts to determine against the streamers because the defendants would definitely bring in the streaming industry at large, and explain how it is normally transformative. After all, you can perfectly legally watch a movie on youtube, and comment on it, because commentary is a transformative work.

I'll be honest and admit I don't watch many streamers, but the ones I have watched ... well, for the most part their "commentary" and "analysis" certainly wasn't particularly impressive. An excellent example is the difference between Hbomberguy's streams and his video essays - the latter are very clearly analysis, and are very clearly transformative, but the former? I wouldn't say so from what I've watched. And yes, there needs to be a qualitative evaluation involved in judgements like these, as otherwise you could just have anyone rambling about anything and have it qualify as fair use. And the "commentary" part of fair use is typically understood as critical commentary on the game in a sociopolitical context or other similarly relevant context. Talking about what you're experiencing in game doesn't qualify. It's entirely possible that there are streamers out there with what I would think of as superhuman abilities in terms of doing on-the-fly commentary and analysis, but I frankly don't think that's possible for a stream (well, it could be if it was based on a bunch of research and preparation, likely including multiple playthroughs of the game, but I don't see that as likely practice for most streamers).

 

[Lomskij]

Thanks for well reasoned arguments! I think it's a safe bet that eventually it *will* end up in supreme court. From developer/publisher point of view it's 100% incremental a.k.a money for nothing: normally, your revenue targets would be something like selling x number of copies for offline or acquiring monthly subscriptions (including loot boxes etc) for online, minus the costs of marketing and exclusivity and so on. And suddenly this parallel stream pops up, that requires no extra investments from publisher's side. Who wouldn't want a slice? According to Google, live streaming industry is already worth tens of billions $ and growing - at some point it will exceed the threshold where the risk of social media outrage becomes secondary. Won't be long probably

 

[silentbogo]

It's a very real problem where creators of small games - especially short, story-driven ones, but it's definitely not exclusive to them - have the "choice" of either not having an income because nobody knows about them, or not having an income because people watched a streamer finish the game and don't see the value of buying it.

You mean that diarrhea of manga "games", so-called "visual novels" and a grand comeback of cookie-cutter pixel hunting adventures? These genres were supposed to die 15 years ago, and I have no pity for these fools. If they can't add a little gameplay into the game, that's their problem. There are many linear story-driven adventures that achieved great success, and have a decent replayability potential. Just look at Frictional games and where they started: just a small team working on Penumbra, made their own engine, created a decent game and grew up to make bestsellers like Soma and Amnesia series. I even helped a bit with translation of their very first public tech demo (way before Paradox took this project under their wing). This game is still alive, still being played by human beings, and still relatively popular amongst speedrunners (almost 14!!! years later).
One of my favorites - The Stanley Parable. That's a gold standard of how to make a good narrative-driven game. You can't just take a 6-week anime class on udemy, watch five tutorials on Unity and think that you can make a game. It requires talent, creativity, skill and determination.
The only way an indie game can fail from streaming, is by being too short or too... crap. Spoiling a game, regardless of its length, was never an issue.

Talking about what you're experiencing in game doesn't qualify

In game reviews those are called "spoilers". I think you are a bit too late to challenge whether it qualifies as fair use or not, cause [spoilers]... it does.

 

[lexluthermiester]

I think it's a safe bet that eventually it *will* end up in supreme court.

Doubtful. Several courts have already ruled on similar situations and found in favor of the user, not the publisher. The SCOTUS would likely decline to take the case as a result.

 

[R-T-B]

He's right though.
Streamers are using content to create revenue.
If they can get away with it, then music also should be royalty free.

Games are licensed. If the EULA allows it, it's fine. This is contract law 101. This isn't really a big legal ambiguity. The EULA is setup to define things like this.

Almost all EULAs allow "fair use" presentation, AKA streaming type scenarios, because yeah free advertising.

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.

Pretty much. It's cut and dry down to the point there are specific exemptions for educational settings vs standard users. It's a weird thing but it's certainly defined legally and cut and dry at this point.

 

[$ReaPeR$]

And then the elites wonder why the average person hates them.. people like this guy have no connection to reality. Mentalities like this is what is eating the music industry, damn cancer.

 

[Dredi]

One could then just as well reverse the argument and say that game piracy is a logical impossibility as each playthrough of a pirated game will always be fundamentally different than "the game" and thus fall under fair use - though that would of course be rather absurd.

Pirating the game is illegally duplicating the entire game, and is inherently not just one transformative playthrough. The act of gaming is what the game is bought for.

 

[Valantar]

You mean that diarrhea of manga "games", so-called "visual novels" and a grand comeback of cookie-cutter pixel hunting adventures? These genres were supposed to die 15 years ago, and I have no pity for these fools. If they can't add a little gameplay into the game, that's their problem. There are many linear story-driven adventures that achieved great success, and have a decent replayability potential. Just look at Frictional games and where they started: just a small team working on Penumbra, made their own engine, created a decent game and grew up to make bestsellers like Soma and Amnesia series. I even helped a bit with translation of their very first public tech demo (way before Paradox took this project under their wing). This game is still alive, still being played by human beings, and still relatively popular amongst speedrunners (almost 14!!! years later).
One of my favorites - The Stanley Parable. That's a gold standard of how to make a good narrative-driven game. You can't just take a 6-week anime class on udemy, watch five tutorials on Unity and think that you can make a game. It requires talent, creativity, skill and determination.
The only way an indie game can fail from streaming, is by being too short or too... crap. Spoiling a game, regardless of its length, was never an issue.

In game reviews those are called "spoilers". I think you are a bit too late to challenge whether it qualifies as fair use or not, cause [spoilers]... it does.

Holy decontextualization, Batman! It really should be blindingly obvious from both that specific post and this whole discussion that that statement was about doing so while streaming and not in the context of a review. Or did we suddenly jump into a different debate entirely? IMO it would be rather difficult to spoil a game you are streaming by commenting on the experience you are having while playing it... unless you're not actually showing what's going on in the game, but are you then actually streaming? I mean, I know some streamers frame their let's plays as "reviews", but that is pure nonsense - you can't do a live review of a game, as that doesn't afford the distance necessary for processing and reflection. My point was that saying your immediate impressions out loud neither amounts to "commentary" nor "criticism", and as such in my opinion fails to fulfill any requirement of being sufficiently transformative to be fair use.

As for the games I was talking about, they definitely aren't the dime-a-dozen visual novels you're talking about (thankfully!), nor are they the type of games I would expect to come out of "tak[ing] a 6-week anime class on udemy, watch[ing] five tutorials on Unity and think[ing]that you can make a game." Disregarding how derogatory that assumption is (more towards developers than me), I kind of get why you would assume that, as all game distribution channels have been drowning in these low-quality games for quite a while now, but that isn't the case. What I'm talking about are ... I would call them artistic/personal indie games, games with far more artistic merit than your average visual novel, but often not higher production values; ones that often focus on portraying a personal story or experience, attempting to convey something meaningful and interesting, share a perspective on something, but without the means to make it into a high production value game. Bury me, my love is a great example - though of course that is also what I would call a relatively successful one, all things considered, and one that had production support from multiple sources. (I also think it might be one of the least streaming-friendly games ever, but that's besides the point here.) There is some replayability, but it also loses its emotional impact through successive playthroughs, which is obviously quite detrimental to the experience. I could also mention something like Papers, please (though again, that is a quite successful example). Behind these successful outliers - including the ones you mention - are thousands of brilliant games that are a poor fit for the "streaming as free advertising" model. Of course for many of these games even a few hundred sales from a streamer playing their game would be a major boost to income, but as I've said above, for many games this type of exposure might just as well lead viewers to feel they have experienced enough of the game to not bother buying it no matter how much they liked it. This is entirely impossible to predict, and if we want a healthy industry it stands to reason that there should be systems in place to ensure some sort of reimbursement for developers when their products are used in a for-profit setting.

As for the examples you mention: it is obviously great that some games manage to overcome the massive barrier that is reaching the public and gaining a following. However, you are repeating a fallacy happens in pretty much every discussion that borders on debating competition in a capitalist economy: equating the success of a few actors with the system overall working as it ought to. I mean, this is exactly how capitalism works: it sets up a strict competitive system where there can always be only a handful of winners, and everyone else loses (though to varying degrees), while simultaneously promoting the fallacy that "they made it, so you could too!". It is an indisputable fact that the success stories are few and far between, and also that who gains success has little relation to the actual quality of the game. It's all pretty much down to chance, with merit and game quality only being tangentially related to success. You also bring up the clichéd point that "It requires talent, creativity, skill and determination", implicitly saying that anyone who fails lacks one or more of those - which, put simply, is a lie. You can have all of those in spades and still fail outright, again and again.

But beyond that, the view you're presenting here is really reductive: a lack of significant replay value in a game can't simply be put down to "not being able to add a little gameplay into their game". That is, quite frankly, ridiculous, and an incredibly condescending attitude towards game developers. It's also an attitude that ultimately says only games that have high replay value and are suitable for the streaming as free advertising model have a right to exist, as you are quite explicitly saying that games that don't fit this mould "were supposed to die 15 years ago". Yes, I know that was said about two specific genres (if you could even call them that), but your phrasing leaves no room whatsoever for alternative game forms that don't fit your standard. Do you really want a games industry where the games made all fit within the same mould?

And I'm not talking about freaking spoilers here. Please don't be that daft. I'm talking about games where the impact of the game - narrative, emotional, or otherwise expressive - lends itself poorly to being experienced several times in a short time span. Games like these also typically lose out doubly on being streamed as viewers then get a first impression of the game that is muted and filtered through someone else's gameplay and stream, potentially diluting the expressive content of the game.

I am obviously not arguing for some utopian system where everyone who wants to make a game should be able to make a good living off of it, both due to the impossibility and unfairness of such a proposition (that would take all talent and merit out of the question, after all). What I'm saying is that our current system a) favors those already in privileged positions, and b) leaves everyone else to fight over scraps in what is ultimately an entirely random process of "selection". I am arguing for a system that would allow talented and hard-working small-scale developers to be paid for their work and actually have a semblance of security, while also fairly reimbursing larger actors for large-scale commercial/for-profit use of their products, while at the same time not preventing fans from streaming the games they love (that's why any royalties need to be limited to for-profit, large-scale streamers) or otherwise unduly limiting the freedom of players. And implementing such a system really wouldn't be that difficult, but it would require industry-wide cooperation, which is likely what stops it, and why we are stuck with a system where money is the ultimate determinant of success, save for the occasional out-of-the-blue low-budget success story.

Games are licensed. If the EULA allows it, it's fine. This is contract law 101. This isn't really a big legal ambiguity. The EULA is setup to define things like this.

Almost all EULAs allow "fair use" presentation, AKA streaming type scenarios, because yeah free advertising.

As I've gone into at length above, the "free advertising" model only works for a few developers, typically those that are already in privileged positions. (Though of course they are further privileged if/when this morphs into paid advertising - but that's another debate entirely.)

But your initial argument here is ultimately a tautology - "It's okay because the EULA says it's okay". That doesn't touch on whether this is actually how the EULA ought to be, or whether this is the best possible system for making this work.

Pirating the game is illegally duplicating the entire game, and is inherently not just one transformative playthrough. The act of gaming is what the game is bought for.

But that's the thing - if for-profit let's play streaming is transformative enough to warrant fair use exemptions from copyright, it's very difficult to argue that the inherently transformative play of a pirated game doesn't reach the same level - or that it isn't more transformative, as it after all is the process that combines a person, a computer and a bunch of illegible data and transforms that into gameplay. This is also an issue of copyright law, that delineating ownership from the right to use a thing is really difficult. You don't own a game you buy - especially not the game data or code that's stored on your computer! - you are buying a license to play the game, for which having said data present is (typically) a requirement. If transformative use is to grant exemptions from the requirement for such a license no matter the level of transformation, then it becomes really difficult to argue that game licenses are enforceable at all. This is especially true given that streaming is a public presentation of the game while playing for yourself is a private one, the latter of which is regarded much more leniently within copyright law (many exemptions for private backups exist, etc.).

Now, I don't actually agree with this line of reasoning - I obviously believe that players should pay for access to the play experience, so that developers can make a living off their work - but by arguing for streaming as transformative use (rather than for example public presentations like in music or film), you are lowering the bar for what counts as transformative to such a degree that it ultimately calls into question even the action of "buying" games.

 

[Dredi]

But that's the thing - if for-profit let's play streaming is transformative enough to warrant fair use exemptions from copyright, it's very difficult to argue that the inherently transformative play of a pirated game doesn't reach the same level - or that it isn't more transformative, as it after all is the process that combines a person, a computer and a bunch of illegible data and transforms that into gameplay.

Even the resulting gameplay recording of a pirated game is transformative enough to be considered fair use. The act of piracy is still piracy and a different topic.

edit:
You just playing the game does not produce new art and is thus not transformative art.
You recording yourself playing the game is essentially an art performance and thus is transformative art.
You listening to music by yourself does not produce new art and is thus not transformative art.
You recording yourself listening to music is essentially an art performance and thus is transformative art.

For games the above is very cut and dry, and tried in both the states and the EU. For music it has not been tried in court and for example youtube takes the stance that the owning music label wishes on a song-to-song basis.

 

[Valantar]

Even the resulting gameplay recording of a pirated game is transformative enough to be considered fair use. The act of piracy is still piracy and a different topic.

edit:
You just playing the game does not produce new art and is thus not transformative art.
You recording yourself playing the game is essentially an art performance and thus is transformative art.
You listening to music by yourself does not produce new art and is thus not transformative art.
You recording yourself listening to music is essentially an art performance and thus is transformative art.

But that's the thing, your music example clearly show that this isn't the case. You need to bring something transformative to the remediation of the product; recording a video of yourself listening to a song is only fair use if you are simultaneously doing something new with the music to such an extent that it can no longer be said to be a straightforward performance of the music. Listening to it, or even providing basic commentary on it, is insufficient to reach this threshold. By your standard, music copyright claims for YouTube videos would all be moot, as adding music to any video would then by definition be fair use simply through presenting the music in a new context.

 

[Papahyooie]

It's entirely possible that there are streamers out there with what I would think of as superhuman abilities in terms of doing on-the-fly commentary and analysis, but I frankly don't think that's possible for a stream (well, it could be if it was based on a bunch of research and preparation, likely including multiple playthroughs of the game, but I don't see that as likely practice for most streamers).

I won't comment on the rest of that post, as it's good stuff, and though I may not agree with all of it, it's completely valid thoughts. I just wanted to reply to this part. For a good example (definitely not the only example) look to xQc. He has an uncanny ability to, on the fly, put his experience in a game into a huge amount of context. Both the context of the game itself, and the industry at large, as well as even often a "bigger picture" perspective.

The problem is, it comes in flights, and you have to wade through the yelling and toxicity that inhabits the rest of the stream to get to his golden nuggets It's actually pretty hilarious to watch. One minute he's yelling about these ****ing noobs and their!@#$%^&*()... the next he's waxing philosophical about the effect of this game on the industry, and how it will affect game design and marketing in the future.

But that's the thing, your music example clearly show that this isn't the case. You need to bring something transformative to the remediation of the product; recording a video of yourself listening to a song is only fair use if you are simultaneously doing something new with the music to such an extent that it can no longer be said to be a straightforward performance of the music. Listening to it, or even providing basic commentary on it, is insufficient to reach this threshold. By your standard, music copyright claims for YouTube videos would all be moot, as adding music to any video would then by definition be fair use simply through presenting the music in a new context.

I will comment on that though: Youtube's music copyright claims are a matter of *policy*, not law. If the system tags your video for a copyright claim, you can claim fair use, and as long as the copyright owner agrees, you can keep the music in your video. But the decision falls to the copyright owner, and not youtube. This is youtube's policy. And as such, even if you took the copyright owner to court, it would not override youtube's policy. If your video is listening to a piece of music and providing basic commentary on it, that would most likely be sufficient to show fair use. But even if you won that court case, YOUTUBE would not allow you to continue using that music in your video. This is not because of the law. It is youtube's creative way of not having to DEAL with the law.

As for piracy, that is not covered under the same use rules. If you pirate a game, you are pirating copyrighted CODE, which has its own rules and regulations separate from copyrighted "works of art." So that entire conversation is irrelevant.

 

[Dredi]

But that's the thing, your music example clearly show that this isn't the case. You need to bring something transformative to the remediation of the product; recording a video of yourself listening to a song is only fair use if you are simultaneously doing something new with the music to such an extent that it can no longer be said to be a straightforward performance of the music. Listening to it, or even providing basic commentary on it, is insufficient to reach this threshold. By your standard, music copyright claims for YouTube videos would all be moot, as adding music to any video would then by definition be fair use simply through presenting the music in a new context.

The gaming part has been tried in court, so that is definitely the case. Music hasn’t, and youtube is not going to do anything here because they wish to keep doing the whole ’youtube music’ thing.

Streaming gameplay is considered transformative art.

Streaming you listening to music is not definitive because no-one has brought it to court yet.

 

[R-T-B]

But your initial argument here is ultimately a tautology - "It's okay because the EULA says it's okay".

That's how the law works.

I wasn't making claims beyond that.

 

[RJARRRPCGP]

Remember how Warcraft 3 Reforged changed the EULA ? it's dead now. Same fate awaiting game developer who is desperate enough to do the same.

They deserve to die if they think they can mandate a big-TV-content-like business model! Those who support that model, are mostly anti-internet.

 

[silentbogo]

@Valantar , thath's a helluvalot to read and I'm lazy, so I'll simplify it a bit: name at least one good indie game that fits your criteria and that directly suffered from streaming. I can't think of a single one, yet there are dozens or even hundreds of indie games that managed tp overcome the "unfair market" by simply being good (no mass advertising campaigns, no public controversies surrounding release, just plain good'ole quality). We can jump around hypothetical situations for days, but reality stays reality - streaming brings publicity, and as an old proverb says, "there is no such thing as bad publicity".

 

[Valantar]

@Valantar , thath's a helluvalot to read and I'm lazy, so I'll simplify it a bit: name at least one good indie game that fits your criteria and that directly suffered from streaming. I can't think of a single one, yet there are dozens or even hundreds of indie games that managed tp overcome the "unfair market" by simply being good (no mass advertising campaigns, no public controversies surrounding release, just plain good'ole quality). We can jump around hypothetical situations for days, but reality stays reality - streaming brings publicity, and as an old proverb says, "there is no such thing as bad publicity".

I finally found one of the articles I had that from: source. So we can at the very least chalk up That Dragon, Cancer on the "lost out due to streaming" list. But there are obviously more examples, though they are overall unlikely to speak up - it's not like they would gain from it, and many of them have likely been forced to move on to different projects or jobs. And yes, there are obviously examples of success stories too. But accepting those as representative of the overall system working is a logical fallacy - one at the core of modern capitalism. Capitalist systems like the one we live in today are rigged to showcase the (overall few) winners while simultaneously making the losers (who are the vast majority due to how systems like these work) invisible. Simultaneously it promotes the winners as if they are winners due to merit alone, when the reality is that while you typically need merit, you also need a very, very big helping of luck. And merit alone is never enough - unless you're lucky enough to garner some sort of attention, you can make a fantastic game that nobody ever plays. And there are obviously plenty of examples of huge successes that don't win on merit, but are rather mediocre games (though those typically come from big studios with large marketing budgets).

That's how the law works.

I wasn't making claims beyond that.

No, but you were essentially arguing that this is how the law works, so we should give up on debating if that is how the law ought to work. So while in practice that tautology stands, in principle there is obviously reason to debate it.
[

The gaming part has been tried in court, so that is definitely the case. Music hasn’t, and youtube is not going to do anything here because they wish to keep doing the whole ’youtube music’ thing.

Streaming gameplay is considered transformative art.

Streaming you listening to music is not definitive because no-one has brought it to court yet.

Wait, there is no case law covering music copyrights? I find that very hard to believe. Besides, case law is intrinsically subject to change unless there's a supreme court decision on the matter - and even those can be challenged. Also, are you actually saying that you don't think YouTube pays royalties for YT Music? Because it should be pretty obvious that they do.

 

[silentbogo]

So we can at the very least chalk up That Dragon, Cancer on the "lost out due to streaming" list.

I highly doubt that. Over 60k copies sold - for a sad, epilepsy-inducing, badly voiced, niche game - that's more than good (that's just steam, not including >$100K backing from KS, and buyers from other platforms and OSes,or even failed Android port). I'm not sure what kind of sales they were expecting... mainstream doesn't buy "sad and depressing". And the ones that bought it, did it not really for the game itself, but for "emotional journey". Regardless of how many times they appear on game awards shows and how much media attention they get - if people aren't interested, they won't buy. That's a simple case of expecting more than deserving. Pretty sure without streamers and media attention that number would've been much-much lower.

And with that whole article - it's an opinion piece backed only by few words from a short interview of a single indie dev of a now defunct two-dude company (who's last game sold over 500k copies on PC alone, regardless of streaming arguments, btw). Just words, no facts, and very weak on arguments. E.g. who in their sane mind would compare any single-player title that costs any amount of money to the most popular AAA F2P multiplatform multiplayer game and based on this idiocy later suggest that this is an indicator of declining single player experience. And IGN are really confused as to why AAA studios and publishers focus on online games nowadays - it's not because SP is becoming less popular or in-demand, but because they can cling to rolling updates and DLC, and milk more cash off that singular cow. Better RoI, in other words.