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The Lawbringer: The odd future of bill S. 978

Pop law abounds in The Lawbringer, your weekly dose of WoW, the law, video games and the MMO genre. Mathew McCurley takes you through the world running parallel to the games we love and enjoy, full of rules, regulations, pitfalls and traps. How about you hang out with us as we discuss some of the more esoteric aspects of the games we love to play?

The machinima and streaming communities built around World of Warcraft are filled with some of the most talented and creative people in gaming, from awesome musicians to dedicated streamcasters. The first time I ever got to experience the WoW beta back in 2004, I was watching someone stream footage of their human warlock messing up mobs in (if I remember correctly) Westfall. Streaming is beneficial to gaming, MMOs, and e-sports because of video games' competitive nature and spectator-oriented design.

You've probably heard of Senate bill S.978 already, most likely from many video game blogs and news outlets or YouTube campaigns fighting against the passage of this bill. Bill S.978 aims to institute a "10 strikes" policy, making the unauthorized streaming of content a felony, resulting in potential jail time. The main purpose of the bill is to strengthen the law and punishments available to organizations such as the MPAA and other content conglomerates to stop illegal streaming of millions upon millions of dollars in stolen entertainment. As is the way of things, gamers might be caught in the crossfire.

Some of you fine readers sent me a few messages on Twitter asking me to weigh in on the 10 strikes streaming bill and maybe give a basic analysis of the thing, so I shall oblige. Lawbringer this week is all about the odd future of bill S. 978 and what it could mean for MMOs and WoW.

How does this bill affect streaming?

It is obvious from reading the bill (and you can, too, by checking out this link to OpenCongress, a public resource featuring all of your favorite goings-on in the U.S. Congress) that the measure is all about adding a blanket ramp-up of punishment to streamers without any type of content specification. While the bill was probably written with movies and television in mind -- because let's face it, I don't know how many of our congressmen here in the United States watch a vodka live stream of new Firelands bosses -- the text of the bill is all-inclusive. No mention is made about the media or medium, only a change to the punishment.

Where the bill hits on streaming is the "public performance" aspect of the changes proposed to title 18 section 2319, the criminal infringement of a copyright. The right to publicly perform works is one of the rights a copyright holder is entitled to, and streaming these works on the internet falls under that right. Bill S.978 aims to put the public performance right alongside reproduction of a copyrighted work and distribution of a copyrighted work.

In essence, the bill aims to make streaming unauthorized works carry a heftier punishment than it did in the past.

Unauthorized streaming only

The bill specifically targets streaming unauthorized content -- the stuff that you don't have a right to stream. The problem then becomes twofold: How do you know if you have the right to stream something, and do game companies want to give full-reaching, blanket streaming rights to gamers?

Unauthorized streaming is, of course, streaming you are unauthorized to display. Movies on DVD, for example, are not allowed to be publicly displayed or broadcast unless the rights holder allows you to do so. You are allowed to host a movie party with you and your friends because the value of the performance is not high enough to kick the law into action, and it probably falls under fair use of the content license you've purchased. Try opening up your own theater, selling tickets and popcorn, and you might have a problem. The first issue is that you need to know what rights the copyright holder has allowed you to use when dealing with their content.

Blizzard, for instance, could put in the Terms of Use or the EULA a rights grant for streaming. Players would then be authorized, in whatever capacity Blizzard describes, to stream content under that set of guidelines. This bill doesn't really make streaming illegal, per se, but specifies unauthorized streaming. If this bill passes, all game companies have to do, really, is authorize streaming implicitly. But how do players know what rights they have to streaming? Will there be a standard?

E-sports already have special "for-profit" licenses and public performance rights attributed to them by game companies, allowing them to broadcast championship matches and other game-related visuals and commentary. If Blizzard or any other game company that had a thriving streaming community like Blizzard wanted to give players the right to stream, it could. This bill would not change that.

Granting specific rights

Here's the problem for Blizzard and other game companies: What rights to streaming do you want to give to players that you otherwise would want to reserve for e-sports or other uses? If the law needs some sort of blanket rights grant, and Blizzard isn't willing to make that part of the EULA, then you're out of luck. We know players don't actually read EULAs, so that rights granting exactly what you are allowed to do with streaming could be buried deep in paragraphs of words you really don't care about or want to glance over. (You probably should, but that's just me.)

The moral of the story is that game companies live and die by the rights that they possess with their copyrighted material. The intellectual property is, essentially, all that they've got, and they have every right to protect it. The scope of the rights that would be required to sidestep the law might turn out to be too broad for game companies to want to grant, potentially losing some income from other streaming licenses.

To be fair, game companies can just not prosecute. If a game company doesn't have a specific license grant for streaming, but doesn't care if you stream, then they just won't come after you. After all, it does cost a fair bit of money to sue someone. However, this leaves gamers in a tough spot -- how much is too much to not invoke the wrath of a game company's law firm? If I stream our Firelands raid, Blizzard probably won't get all excited about it. If I stream unreleased beta footage from the next expansion, there might be different consequences.

It is quite clear, however, that S.978 is not really aimed at video game streaming or the popular Let's Play genre of videos, but it hits them pretty hard in the back-and-forth fight between content creators and streamers who display pirated, unauthorized materials.

The games industry will need a standard

The only way that we, as an industry, can live in a post-S.978 world would be to come to a consensus on a standard streaming right grant that the major publishers would adhere to -- a fair use for video game streaming/capture, if you will. Let's Play videos are not exactly commentary and may or may not fall under the already available fair use provisions in the copyright code. The problem with laws like this that are so vague is that they have a chilling effect -- you don't know if you're allowed to do something or not, so you err on the side of caution, and nothing ever gets made.

I hear you saying already, "Mathew, the bill already has monetary retail values of performances that will warrant jail time. Why can't that be the standard?" You are right, observant reader. The bill does in fact give monetary values to what constitutes the imprisonment aspect:

(A) the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works; and
(B)(i) the total retail value of the performances, or the total economic value of such public performances to the infringer or to the copyright owner, would exceed $2,500; or
(ii) the total fair market value of licenses to offer performances of those works would exceed $5,000;

How is the simple Let's Play YouTube or WoW raid streamer going to know or understand the fair market value of licenses for streaming video games in a for-profit setting like YouTube channels with high views that revenue share? The burden to understand these complicated numbers and the amount of guesswork completely stifles the average user from making content that acts like free advertising, in many cases, for the games being shown.

The problem with laws like S.978 is that their vagueness with regard to industries and actions that it had no intention of legislating leave people confused about what is acceptable. We have laws, court case precedent, clearly defined statutes, and well-thought out rules for the purpose of being predictive and consistent. We need a standard in the games industry so that we can be predictive.

We need a standard. Perhaps the Entertainment Merchants Association, coming off of an astounding victory at the Supreme Court, could lead the way with the help of the ESRB, which have been proven self-regulators by the highest court in the land. Bill S.978 probably isn't aimed at you. Really. It probably isn't. But with things as they are, there are always gray areas and interpretation issues. Streaming video games happens to be a big one this time around. With a standard in place that publishers and rights holders can agree to, as well as the simple understanding that games are a spectator medium with immense appeal to the demographic that loves to watch gaming-related everything on their computers, from streamed WoW raids to StarCraft II casts, we can easily skirt the harsh provisions of S.978 as an industry.

You know, if the bill even passes.

This column is for entertainment only; if you need legal advice, contact a lawyer. For comments or general questions about law or for The Lawbringer, contact Mat at mat@wowinsider.com.

Filed under: Analysis / Opinion, The Lawbringer

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