Posted By: Chris Fong
Twitch.tv is a website that provides video gamers a website location to share and stream their video game experiences with others. A major concern is whether the streaming of the video game can be constituted as copyright infringement or protected use under Fair Use. In order to determine if it is infringement or Fair Use, we must first understand what rights are given through Copyright laws and what constitutes Fair Use.
Copyright protection is codified in 17 USC §101-1332. The statute explicitly grants six exclusive rights to the owner of the copyrighted work. The author of the work, subject to a lawful sale or transfer, has the right:
- to reproduce the copyrighted work in copies or phonorecords;
- to prepare derivative works based upon the copyrighted work;
- to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Additionally, the court in Computer Associates International Inc. v. Altai Inc., lists three necessary factors to violate a copyright; 1) the alleged copy must be similar to the copyrighted work, 2) the copyrighted work must be original to the plaintiff and not in the public domain, and 3) the alleged copy must have enough of the essential elements found in the copyrighted work. A violation of any of the exclusive rights is a copyright infringement, except in cases where the alleged violating use is covered by a statutory limitation.
The statute 17 U.S.C. §107 provides an exception to copyright infringing use based on Fair Use. Generally, Fair Use approves the use of copyrighted material for the purpose of criticism, comment, news reporting, teaching, scholarship, or research. Courts consider several factors in determining whether the alleged copyright infringement is within the fair use exception, which include but are not limited to:
- the purpose and character of the use;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use on the potential market for or value of the copyrighted work.
Video Game Streaming a Copyright violation?
Let us now consider whether the streaming of a video game is a Copyright protected act. Generally, computers will, based on design, make copies of everything accessed through the internet. The act of copying is specifically listed as an exclusive right given only to the holder of the copyright. Thus, the computer users accessing the copyrighted work online are committing copyright infringement.
However, copyright holders, such as the RIAA, have all but abandoned the efforts to bring copyright infringement cases against internet users accessing the infringing copies and have left such claims to be made by the government. The copyright holders, instead, have turned their attention to the internet users providing access (the “broadcaster”) to the copyrighted work via the internet.
First we must consider whether the streamed work is a covered copyright work. The three questions in Altair, likely establish the broadcasted material as a copyright. The streamed game play is very similar to the video game, and the copyright is held with the video game developer and is not in the public domain. The third question, however, is not as clear. The essential elements to a video game include the personalized experiences for each player. Though, the streamed material does not, as supported by the language in Altair, have to include all the essential elements. To further the discussion to Fair Use, we will assume the work is copyright protected.
The next issue is whether the broadcaster is in violation of any of the exclusive copyright rights. The broadcasters could be in violation of the exclusive copyright right of preparing a derivative work, public performance, public display, and contributory copyright infringement for the acts by the broadcaster’s viewers. The reproduction of the video game to be streamed online with commentary could conceivably be a derivative work of the original video game. Additionally, the fact the game play is being streamed online for others to view may be a public performance or display. The broadcaster’s viewers are also infringing on the copyright based on the nature of the computer and the internet. Thus, the broadcaster could be in violation of copyright under any of the theories provided.
Broadcasters, however, have a way out through the Fair Use limitation. Most broadcasters are streaming the game play with commentary and in some cases they interact with their viewers. In addition how the broadcaster is using the copyrighted work, the court will consider the other four factors listed in the statute. The likely purpose of the broadcaster’s use is to gain a viewership and in some cases make money based on their popularity as a broadcaster. The nature of the video game is for people to play the game and experience the game. Viewers are able to experience the game through the broadcaster. The viewer, however, do not have the ability to directly alter what the broadcaster is doing in the game. The broadcast only shows what the broadcaster is or chooses to experience. It likely depends on the game whether the broadcast contains a substantial portion of the video game. Lastly, the effect of the broadcast on the potential market is unlikely to diminish the demand for the video game. Alternatively, the broadcast gives the viewer a taste of the game, increase exposure, and is likely to drive up demand for the game.
Video game streaming is likely to be a protected use under the Fair Use exception. The video game and the video streamed from the game play are likely to be a protected copyrighted work and the broadcast violates at least one exclusive right found in 17 USC §106. The video stream, however, when combined with commentary by the broadcaster will likely be considered Fair Use.