Hello and welcome to another edition of Free To Play. In this edition I wanted to comment on a news story that has been slowly unfolding the last couple of weeks, and has taken bizarre turns. At its heart is the sagging game company Konami, YouTube and the horrible condition of American intellectual property laws*.

Let’s start off with the facts of the story, before we get into my bloviating commentary. Konami was at one point a titan of the industry, and in my estimation the second greatest third party publisher in the history of gaming – Capcom has the throne, if you were wondering. The company had a slew of amazing series to its name with many being classics of gaming itself. Castlevania, those classic beat ’em ups from the 90’s, Silent Hill and the last remaining IP it hadn’t killed – Metal Gear. After letting most of their top name series wither on the vine it seemed that just Hideo Kojima and his Metal Gear series were keeping Konami afloat. Kojima is one of the only game producers who gets to put his name on the front of every release he creates, which makes sense given his celebrity status amongst gamers and his role in keeping Konami in the black.

But what happens when management pisses off the only legitimate developer the company has left? The problems began when it was reported that Kojima’s name would not be on the cover of Metal Gear Solid V. To make matters worse, his production team of Kojima Productions would be renamed to Konami Los Angeles. Konami kept up the changes so much that it looked to any observer that they were attempting to remove any kind of connection with Kojima himself. This was bad news, as the biggest game Konami would be releasing anytime soon was Kojima’s own Metal Gear Solid V: The Phantom Pain, so of course rumors were flying in all directions. Konami soon stoked the flames by voluntarily removing themselves from the New York Stock Exchange which got even business analysts confused. Soon after, the head of Konami, one of the founders who’s been there since the start, started investing heavily in gambling technology. This is highly intriguing as currently said machines are illegal in Japan, although there is debate in the National Diet about changing this. Gamers, analysts and commentators were all abuzz with what all these events meant, but it took one simple Youtube video to really turn the debate into panic.

George Weidman is the creator and host of the channel Super Bunnyhop. On this channel he does fantastic analysis and breakdowns of the narratives and often metanarratives of games that I wholeheartedly recommend. However, it was one simple video that put Weidman at the center of not only the Konami debate, but one on intellectual property and the downright broken state of America’s copyright laws. Weidman released a video a couple of weeks ago called “Kojima vs Konami: An Investigation” where he examined the claims of anonymous sources inside the Konami company that – being completely honest – depicted a Konami that seemed hell bent on destroying anything related to Kojima’s work and indeed destroying Konami itself. There is nothing about Weidman’s journalistic integrity that could have been improved in the actual video. Weidman states that he does know the names of his sources, and checked their names & job titles versus Konami staff listings, finding no errors. He also states repeatedly that since the information is given anonymously it is nearly impossible to verify and should not be taken as fact until proven to be so. Weidman does everything he can to make the viewer know that this is not verified information and could be wrong, so it should just be considered, but not accepted as gospel. I highly recommend checking the video out, as it’s not very long and honestly it details the information better than I could. To put it simply, Konami was doing petty tyrant things like making workers switch offices every couple of days, turning off electricity and shuffling workers just because they could. It’s the kind of baffling actions that makes you wonder if Konami is ran by arrogant morons, colossal idiots, or self destructive tyrants. It’s a fascinating watch, and really makes all of Konami’s current actions seem like a single push to irrevelancy.

This is where Konami took an action that made even their fanboys confused as they used YouTube’s onerous copyright claim system to take down Weidman’s video under a spurious copyright claim. They tried to claim that Weidman illegally used footage of the game Metal Gear Rising: Revengance but the footage is literally less than 20 seconds. Not only that, Weidman is talking about the game as he shows footage. Any first year law student could tell you that this is fair use and thus protected speech under law. Interestingly, YouTube later dropped the claim but not because of fair use or even Weidman’s contacting of Konami personnel. YouTube rescinded Konami’s claim because Konami didn’t fill the form out correctly. Weidman’s video is back up, the strike against his account is gone, and he’s uploaded a new video detailing the events from his side which I totally recommend watching.

This event has brought another argument to light, beyond that of Konami’s downward spiral. YouTube, which has become a pillar of the gaming community, only remains popular due to the contributions of its members, yet it has consistently thrown them to the wolves over any claim of copyright infringement. A famous example before Weidman’s video was the fate of videos by Jim Sterling, a major video game media personality. Sterling tends to review really bad indie games, many of which have been taken down by the DMCA – Digital Millennium Copyright Act – due to claims by the developers that were blatant attempts at censorship as reviews are legally protected free speech. Despite this fact, YouTube still takes videos down for any copyright claim, even if the claims would not hold up in any court of law. In fact, Weidman makes a point in his update video that it appears a member of YouTube’s legal department actually reviewed the claim and decided in favor of the video maker, which is apparently a first. YouTube has never defended content creators over spurious copyright claims, and use of such as censorship is a perfect illustrator of why intellectual property law is so broken.

Before going further, let’s explain fair use. Fair use is a doctrine that establishes the usage of copyrighted materials by those who do not hold the rights for certain actions. Quoting pieces of copyrighted material to comment or educate is a classic fair use example, as is usage of the property for the purposes of reviews. Similarly, cases where the usage of the material is not done in a way that will damage the commercial viability of a copyright is covered by fair use. A teacher who prints out copies of a poem is safe, as is a non-profit who quotes from copyrighted articles. However, multiple cases involving non-profit or low profit groups using copyrighted material have been declared to not be fair use; one of the most famous involves the conservative website Free Republic, who was sued for posting the full text of articles from the LA Times. Fair use can be boiled down to say that if you are reviewing, commenting, critiquing or the like you are safe, and if you reproduce works for non-profit or very small uses you are covered. This is a fluid subject so it could change depending on the usage and the plaintiff. After all, Congress has to keep all those people giving them blatant fucking bribery generous campaign donations happy. Another thing to remember is that as a defense, the burden of proof falls upon the defendant to prove the usage is truly “fair use”, instead of the plaintiff disproving the claim. This is similar to defenses such as self-defense where you must prove it’s the truth before using the defense. This is important stuff to remember, especially in Weidman’s case, so you may want to refer back to this.

The DMCA is a landmark piece of intellectual property law passed originally in 1996 here in the US, but has also been copied for a similar law in the European Union. It’s a very divisive topic as it has been used as a bludgeon by large corporations against targets ranging from YouTube/Google to normal citizens to even infamous console hacker George Hotz aka geohot. One of the most famous cases of a company going after a hacker was Sony’s lawsuit against Hotz for his jailbreak of the Playstation 3, which allowed users to run unsigned code such as homebrew software, unlocking the former “Other OS” function, and more. The case was eventually settled out of court with an injunction against Hotz preventing him from hacking any further Sony products. Interestingly, the Library of Congress later issued a ruling stating that jail-breaking/rooting was a legal option for end users of products as once bought, it was theirs to do with as they wish. Another infamous lawsuit was Lens vs Universal Music Group where UMG sued Stephanie Lenz for posting a 30 second video of her toddler dancing to a song. Yes, a giant music group attempted to sue a single person for having a video with a song playing in the background. Luckily, a district judge ruled that UMG couldn’t force a site to remove content without checking to make sure it falls under the “fair use” requirement.

Intellectual property is one of the interesting cases like the need for the state and abortion – don’t expect me to ever write on that one – that doesn’t have a definitive “libertarian” response. One of the earliest commentators on IP from a libertarian perspective was Ayn Rand who strongly supported copyright & patent law, with the caveat that the protections were for a limited amount of time otherwise it defeats its own purpose. The most common libertarian opponents of IP are anarcho-capitalists such as Murray Rothbard who stated that the state does not exist in their preferred nation, so the IP situation must be served by private contract law. There are also anarcho-capitalists who oppose IP as they see it as allowing some to control what others do with information which could be considered thought control. Left-libertarians such as Roderick Long tend to oppose IP as prohibiting people from using IP as they see fit because it can infringe freedom of speech, press and thought. Long’s belief is that such intellectual property could exist as information solely in peoples minds. He also makes a very strong point that every single day many people post articles, video & other media for free to the internet without getting into copyright law with no ill effects. Legendary anarcho-capitalist David Friedman has taken a middle ground as he believes both sides have good points.

This is where I fall. I do not claim to be speaking for all libertarians, or even stating the libertarian position, but just the one I take myself. I am a minarchist so I believe that a severely limited state does need to exist, but any state that exists has a chance to be used offensively by connected people. The state should exist to defend the rights of the individual citizens, and I feel that part of that is intellectual property rights. An individuals creation should be theirs to profit from without fear of it being taken by another, but this claim should not be perpetual. I favor an expansion of fair use to encompass more uses than it is currently accepted to cover, as the internet in its free-wheeling glory has brought forth numerous new uses for copyrighted material that honestly weren’t even invented during the time of most of the pivotal cases in this topic. A copyright holder should not be able to claim copyright on any kind of review, especially if said review is negative as this represents someone using the power of the state as their own personal revenge. Similarly, showing footage of a game while discussing something about the game whether for review or otherwise, should be fair use as the footage is merely background while the comments are the original material. That said, I don’t believe that taking original films, art or music and claiming them as your own should be legal – if you cover a song then try to claim it as your own you are still violating the copyright contract. In the interest of time limits, I do believe that the public domain should be greatly expanded: Mickey Mouse, your time is up.

A thorny topic lately is Let’s Plays, with Nintendo’s frankly idiotic approach to them being a common topic. Simply put, a Let’s Play is a video where a gamer or gamers play a game while commenting during their playthrough. This is not a review, so some have argued it doesn’t fall under fair use but I disagree vehemently. The main attraction of the LP is not the game per se, but the interactions the LP’er has with the game. Does the LP show the entirety of the game? Sometimes, but it has an original element added to it with the LP’s commentary – good or bad. Recently famous YouTuber Angry Joe had an LP of Mario Party 10 flagged for copyright. This didn’t remove the video, but it did prevent Joe from monetizing the video. I honestly thought that Joe’s response was more than a bit childish, but I also feel that Nintendo’s policy is as backwards as you can possibly get. In my idealized version of copyright law, Nintendo would have to prove that the majority interest in Joe’s video was the gameplay and not Joe himself. I think a reversal of current law requirements should be introduced as rapidly as possible so that it is upon the plaintiff to prove the copyright infringement not the defendant proving fair use. This is one of the very few times I find that the courts are stacked to be “guilty until proven innocent” as it seems that claims of infringement automatically require the defendant to prove they didn’t commit a wrong as proving that they did. Nobody should walk into a courtroom having to prove they are not guilty. In the same vein claims of infringement should not automatically require the offending work to be removed since it falls under the “guilty until proven innocent” topic. The law should provide a loose framework that rights are preserved for all parties, not just copyright holders.

Let’s take this back to Weidman and Konami to finish out. As far as I am concerned, Weidman acted with the highest form of journalistic integrity by simply reporting the rumors while stating the nature of anonymous sources. He verified the names and jobs of the people giving this information as best he could while continously stressing that the information may be false. Konami used the broken state of American intellectual property law to silence a critic and this should be a crime. If Konami truly thought the video was infringing their copyright why did they only claim this on a single game in the video when multiple games were shown? The fact that not long after this debacle Konami announced its upcoming focus on mobile games makes Weidman’s video all the more accurate. Journalism is one of the main defenses a free citizenry has for their rights and Konami used poorly designed law to circumvent that. The way they handled this situation proves to me more than anything else that Weidman’s sources were 100% correct so Konami attempted hamfisted damage control. The fact that this whole affair has exploded in their faces is just icing on the cake. Konami has been barely avoiding circling the drain for a long time, and here’s one gamer who’s ready for them to finish that downward spiral.

As always I hope you have learned something and were made to think about this topic for a little while. I don’t claim to have written a comprehensive or definitive statement on copyrights, but I’d like to think this adds to the conversation. Speaking of which, if you have any comment or statement to add feel free to contact me on twitter @ithinkibrokeit where I’m always happy to hear from readers. Thanks for reading.

*As both YouTube and I are based in the United States of America, this article focuses exclusively on the intellectual property laws here. I don’t claim to be a lawyer, expert or anything but a semi-informed citizen. I do not comment on the intellectual property laws of any other country simply because I am completely uninformed about them. Nothing in this article claims to be legal advice or should be taken as so. If you have serious questions about handling intellectual property, please talk to an actual attorney.