PEWDIEPIE SUCKS, BUT HE’S NOT GOING TO KILL FAIR USE (YET)

PewDiePie, the King of YouTube, is the center of yet another hate-speech incident.  This time, he dropped an n-bomb during a stream in reference to another player (don’t worry, he corrected himself on the stream--he meant to call the other player a “fucking asshole”).  The incident triggered a litany of responses from journalists, fans, and critics. Some are calling his actions inexcusable. Others are defending it by saying that this sort of shock-intended expletive is part of Internet culture.  But one developer, Campo Santo, has gone a step further and used copyright law (specifically, the DMCA) to remove videos of their game Firewatch from PewDiePie’s YouTube channel. Although something feels good about punishing abhorrent behavior like PewDiePie's, there are some emerging concerns about the potential to hurt copyright's fair use doctrine and the video-game-streaming or "Lets Play" market as a whole. 

The copyright law at issue today is the Digital Millennium Copyright Act (the “DMCA”). If you’re not familiar with the DMCA, it is, in relevant part, a safe harbor under the US copyright act that absolves online service providers from liability for merely routing, hosting, or caching content that infringes another party’s copyright (i.e., the provider didn’t put that content there, the user did). So if you’re Google or Facebook, you rely heavily on the DMCA; and if you fail to meet its requirements, you’ll end up in the Silicon Valley crypt with Napster.  

The DMCA requires, in a nutshell, that online service providers promptly remove content after receiving a good-faith takedown notice. When someone requests a takedown, the user who posted the content has the right to provide a counter-notice explaining why they are permitted to post the applicable content or explain why the takedown notice was defective.  The obligation to refrain from fraudulent takedown requests has arguably increased in the last few years as a result of the Lenz v. Universal case, where the 9th Circuit held that Universal was required to consider copyright’s fair use doctrine before issuing takedown notices. The DMCA, in turn, puts the onus on copyright holders to enforce their rights directly, without a legal decision from a court.

This tension between free, permissible expression and copyright law is at the core of fair use doctrine and this PewDiePie incident. This is why some are calling Campo Santo’s takedowns “extreme:” Campo’s using copyright law to subdue speech they don’t agree with. This, on its face, puts free expression in conflict with copyright law, which, by the way, is designed to promote, not subdue, creative expression. I'll note, for the record, that Campo Santo is not the first entity in this space to use copyright law to subdue a message.

But there’s a more pressing billion-dollar question lurking here: can YouTube streamers rely on fair use in the first place?  Because the DMCA is a somewhat self-regulated process, the courts have not directly answered this question yet. And if the answer comes out the wrong way, the entire industry would potentially disappear overnight.  For now, there seems to be an unwritten symbiotic understanding that game developers retain their copyright, and streamers can monetize game playthroughs. This sometimes-fuzzy relationship creates a certain tension though, one that could erupt in nuclear holocaust when one streamer inevitably says the wrong thing about the wrong game.

So what is the likelihood that the Campo Santo takedowns in this case will trigger a judicial decision? In my opinion, slim to none.  There are a few reasons for this. First, DMCA takedowns are alternatives to lawsuits--they by and large do not get litigated.  But, for argument’s sake, let’s say PewDiePie decides to issue a DMCA counter-notice claiming that his videos are fair use, and that leads to a litigation over whether the takedown was made in bad faith. Even then, there’s no way PewDiePie (or Campo Santo for that matter) would risk sinking the entire YouTube economy by taking a DMCA takedown case to trial.  Finally, even if they were to litigate this issue, you have to keep in mind that DMCA takedowns by definition implicate a third party, namely, the service provider.  Google in this case.  And though this particular case would put Google on the side of an irresponsible and distasteful incident, I’m confident they’d defend PewDiePie in this case if it meant keeping YouTube’s business model alive.

So is this massive question getting answered right now? No. It will need to be resolved eventually however. And I'd predict that the winner will be the one who is most beneficial to Google's bottom line.  But for now, this asshole (thankfully) won't be that person.

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