Frivolous abuse of the Digital Millennium Copyright Act is nothing new. We've seen fake poets, manufacturers,purveyors of anatomically impossible boobs, sociopathic revenge-pornsters, and legbreakers for totalitarian governments make false claims of copyright violations in an effort to censor online criticism.

So why should we be surprised that a computer game designer would abuse a DMCA takedown request to silence a negative review?

The designers and developers are Digital Homicide Studios and Imminent Uprising. They're pushing a game called The Slaughtering Grounds. Its premise is simple: there are zombies, and you must shoot them, repeatedly.

The negative review was courtesy of Jim Sterling, a game reviewer who has, as one apparently must, a YouTube channel. Mr. Sterling did not like the game, and recorded a fairly brutal video review. Digital Homicide Studios reacted by leaping headlong into a shame spiral, first releasing its own angry video review of Sterling's video review, which consisted of Sterling's video review with mean captions. Sterling reviewed that. Then, because we live in an era where everything has to be shoved up its own ass, Digital Homicide issued a unsettling ranty review of the review of the review, posting angry text over audio of Sterling's latest.

At this point it's clear that the folks at Digital Homicide do not have a full grip of their emotions and nobody is there to slap them and get them to step back from the precipice. Sure enough, they filed a DMCA notice with YouTube claiming that Sterling's original review violated their copyright. They defense of this action was . . . odd:

The DMCA filed is not to censor review’s [sic], there are countless negative review videos posted(including multiple sterling videos) and only one in particular with a DMCA filed on it. The reason is we have a legitimate claim, we can prove a violation of our copyright(fair use is not blanket immunity) and damages.

Hmm. Not very illuminating. So I wrote to Digital Homicide Studios and to one of its executives, James Romine. Mr. Romine wrote back, directing me to a blog post that would answer all my questions, and saying that they are "currently looking for a copyright attorney." I had time to read that post once before somebody — presumably Mr. Romine — memory-holed it. Fortunately someone on Steam had a quick trigger-finger and copied their justification:

Let’s get to the heart of it, right from the start. Here are some examples I would like to propose as a basis for an unbiased point of view from the reader. I read 10 pages of a 100 page book

I watch 10 minutes of a 100 minute movie

I listen to 18 seconds of a 180 second song

I use 10% of the features of a product After doing this I label any of the above “WORST (insert object) OF 2014 CONTENDER!” The next sentence I describe said object as an “Absolute Failure“. Lets evaluate what the impact of this statement is by looking at the definition of absolute: not qualified or diminished in anyway; Total. Again with this in mind lets examine what is being said here. After watching, reading, playing 10% of a product I label it as an “Absolute or Total” failure. In labeling a product as an Absolute or total failure, I would need to evaluate all aspects of what i’m describing or this could be considered unfair or unreasonable. This brings us to the Fair Use Doctrine. Criticism and parodies are highly protected by the fair use doctrine. However, when using criticism one must be fair and reasonable to be protected by it’s articles. While negative criticism could be deemed reasonable is the manner in which the criticism presented fair? Herein lies our DMCA complaint and our case we will be presenting in court. With the above in mind, we will be presenting a violation of our copyright based on the following: In the sole instance of Jim Sterling’s “Squirty Play” video, we find the usage of the terms “WORST GAME OF 2014 CONTENDER!” and “Absolute Failure” to describe the entirety of our product while not actually evaluating it in its entirety unfair and unreasonable use of our copyright material. While the reader may disagree with our claim, we believe the unbiased perspective of a court will agree there has been a violation of our copyright and for this reason we will be pursuing an attorney and proceeding with our complaint. Digital Homicide Studios Also, do not misinterpret this as an act of censoring criticism in general. If Jim Sterling had labeled our product “Absolute Failure” while doing a full evaluation of our product, this might be considered a fair and reasonable use of criticism regardless of how we feel about it personally. This claim is not about censoring “negative” criticism, this claim is about executing criticism in a fair and reasonable manner."

Let me be clear: this is utter bollocks. Perhaps you could argue that this is what the Fair Use doctrine should be, but it is not.

Criticism, satire, and parody are at the heart of fair use. The "fair" in Fair Use refers to the idea that it is fundamentally fair to allow someone to make partial use of my copyrighted for for purposes of criticism, satire, and parody. It does not, as Digital Homicide Studios seems to think, involve an inquiry into whether the criticism or parody or satire is "fair" from a literary point of view. Nor could it. Judges are ill-equipped to decide when a satire or criticism is "fair" or "unfair" in a lit-crit-the-critic sense, and such an inquiry involves an unacceptable value judgment about the user's free expression. Moreover, such a rule is completely useless in practice: critics, satirists, and others would have no idea whether Fair Use will ultimately protect them or not, because it will depend upon a subjective post-hoc determination of whether the critic or satirist was "fair" or not.

You can see a good example of this point in Michael Savage v. Council on American-Islamic Relations. Seven years ago I wrote about how Savage — an excitable radio-host and opinion-pornster — sued CAIR for quoting him in order to illustrate anti-Islamic sentiment in America.

The United States District Court for the Northern District of California granted judgment on the pleadings to CAIR on Savage's copyright claim, finding that their Fair Use defense was established by the pleadings themselves. In doing so the court pointed out that the relevant Fair Use inquiry is not the motive of the critic, but the critical nature of the usage. The Court rejected Savage's argument that CAIR's use was not Fair Use because CAIR's motive was to raise funds by pointing to Savage's bigotry:

Plaintiff argues that the fair use defense is inapplicable to defendants' usage of, and comment on, segments of the copyrighted audio work because defendants' “infringement was not done for genuine criticism or comment,” but instead misrepresented plaintiff's views with the intention to raise funds for their own political purposes as “a foreign agent for international terror” under the guise of a non-profit, civil rights group. Plaintiff's Opposition at 5-7; see SAC at ¶¶ 24, 28-30, 32. Plaintiff asserts that these alleged motives behind the usage and comment are fatal to defendants' fair use defense because fair use presupposes good faith and fair dealing. . . . . Plaintiff tries to conflate “motive” with the purpose and character of the use, which is not permitted by the case law. Rather, even assuming the truth of plaintiff's allegations about motive, it is the manner of use, not the motivation behind it, which must be analyzed: “what use was made,” rather than “who is the user.” Savage v. Council on Am.-Islamic Relations, Inc., No. C 07-6076 SI, 2008 WL 2951281, at *4-6 (N.D. Cal. July 25, 2008)

Similarly, courts have typically rejected artists' claims that a review or parody wasn't protected by fair use because it had errors of transcription or it took materials out of the context of the whole work:

Furthermore, as a judicial body, we consider it highly undesirable to hinge a legal determination solely on the relative truth or accuracy of statements made in the context of debate on a highly volatile social issue. See New York Times Co. v. Sullivan, 376 U.S. 254, 278-83, 84 S.Ct. 710, 725-28, 11 L.Ed.2d 686 (1964). Nor do we think it wise to give much legal relevance to whether the allegedly infringing work may be labeled “scholarly” or “dogmatic,” for the dogma of one individual may be the original scholarship of another. Only where the distortions were so deliberate, and so misrepresentative of the original work that no reasonable person could find them to be the product of mere carelessness would we incline toward rejecting a fair use claim. The errors in Rachel Weeping do not cross that threshold. Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1261 (2d Cir. 1986)

In short, Digital Homicide Studios' legal theory doesn't find support in the actual law.

Sterling has filed a DMCA counter-notice asserting that his use is covered by Fair Use. It will be interesting to see what Digital Homicide Studios does from here. Can they find an attorney addled enough to sue over their meritless claim? This is America, so they probably can. But they should consider this: they've given Sterling's criticism vastly more attention than it otherwise would have enjoyed, and they've associated themselves in the minds of the gaming community not with killing zombies but with censorious tantrums. They need a grown-up, stat.

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