Popular YouTuber Felix “PewDiePie” Kjellberg found himself in hot water (again) in early September when he used a racial slur during a “Let’s Play” livestream. Kjellberg faced another controversy early this year in February when the Wall Street Journal accused him of Nazi, racist, and anti-Semitic jokes and skits that he claimed were taken out of context. During his September 10th livestream on YouTube, Kjellberg called another player the “n-word” while playing Playerunknown’s Battlegrounds. This recent slip does not bode well for Kjellberg’s already shaky reputation, and it leaves a sour taste in the mouths of the YouTube community that came to his defense in February. Now, video game developer Campo Santo, who developed the popular game Firewatch, has requested a copyright takedown against Kjellberg, and YouTube has accepted the request.
“Let’s Play” videos feature YouTubers playing through video games while providing their own commentary. Some video game developers allow “Let’s Play” videos to be made under certain conditions, while others have refused to allow their content to be played for online audiences. The Digital Millennium Copyright Act of 1998 (DMCA) allows video game developers to take down videos infringing on their copyrights from YouTube. A developer can go to a hosting site and notify them that some content on their site is infringing on IP laws, and the hosting site can then avoid liability by quickly removing the infringing content. YouTube has a five-step process for DMCA takedowns:
- The rights owner files a copyright takedown request, explaining the IP being infringed and how.
- YouTube temporarily removes the infringing content and notifies the uploader.
- The uploader has the opportunity to attend “copyright school,” reach out to the rights owner, file a counter-notice claiming the content is not infringing, or wait 90 days for the strike to expire.
- The rights owner may then remove the request or proceed with legal action against the uploader.
- If neither action is taken, the video is then restored to YouTube after the 90-day period.
Kjellberg faces a bigger problem. The majority of his channel consists of “Let’s Play” videos, and Google’s policy (as the parent company to YouTube) states that, once Kjellberg has three copyright complaints against him, his account will be completely erased and he will be barred from creating a new account. This event has brought up questions across the gaming and YouTube communities over whether YouTube’s relatively relaxed DMCA request process paired with its three-strike policy allows for abuse against users like Kjellberg by claiming copyright infringement whenever they behave or speak in a way that the developer does not agree with. According to Mona Ibrahim, an attorney in the gaming industry, if a court finds “Let’s Play” videos do not fall under Fair Use, Campo Santo may issue a take down notice for any reason they wish. Ibrahim states:
Under copyright, an author’s underlying justification for bringing an action carries very little weight unless the claim lacks merit. If, as most of my clients believe, Let’s Play is not fair use, [Campo Santo] could issue a take down for any reason or no reason at all, and as long as there is still actual infringement, an argument of “bad faith” probably won’t have much of an effect on the outcome unless you get a very sympathetic judge or jury.
Unfortunately, this could mean Kjellberg and many “Let’s Play” uploaders may soon lose their YouTube accounts for good.
Source: The Digital Millennium Copyright Act of 1998