SOPA/PROTECT IP Would Be Hideously Bad For Video Gamers

from the our-rights-are-not-a-game dept

Jennifer Mercurio is the Vice President and General Counsel of the Entertainment Consumers Association (ECA), the nonprofit membership organization which represents gamers in the U.S. and Canada.

If a pair of bills on Capitol Hill, called the Stop Online Piracy Act (SOPA) and PROTECT IP, pass, you could be fined and thrown in jail for streaming (i.e., “performing”) your video game speed runs or game play. Just as people post cute pictures and videos of themselves, their pets and their kids singing and dancing to copyrighted works, gamers of all ages routinely post pics and stream video of themselves during game play. All of these things have, for the most part, been considered “fair use” under the law. Tens of thousands of videos currently available online featuring game play from popular games like Call of Duty, Halo, Starcraft and others could be made illegal under these laws.

Since games also rely on the unique and fresh content that gamers create structurally and within game play, SOPA/PROTECT IP would freeze such innovation. Creative new works developed out of the technology of video games could be stifled by these new laws. Machinima, or videos created using in-game tools such as in Red vs. Blue, may never have come about if SOPA/PROTECT IP were in place.

There are also serious “due process” issues with SOPA/PROTECT IP.

Under constitutional due process, if the government prosecutes you, you must have the ability to defend yourself before being penalized; and the prosecution and governing board must be a government body, not a private company such as YouTube, or a ratings entity like the Entertainment Software Rating Board (ESRB). The Digital Millennium Copyright Act (DMCA) presently mandates that a take-down notice regarding potential infringement must first be sent to the Internet service provider or host, which then must comply, if it wants to retain its so-called “safe harbor” protection. However, the alleged infringer can then send a counter-notice stating basically, “no we’re not infringing, here is why.” Under the current safe harbor provisions, the service provider is then required to put the material in question back up in 10 days if there is no further action taken on the part of the content owner.

Here, SOPA/PROTECT IP forgo even this slight due process. These bills lack the provisions requiring the providers to put the material back up following a counter notice. Instead, the incentives are for service providers to keep the content down. Furthermore, a court order via a judge could require payment processors and ad networks to cut off service, before sites are convicted of any wrong-doing. The accused would then need to defend themselves. In other words, the impact of the bill is that they are found guilty before their day in court.

The legislation would also allow Internet companies hosting the content to arbitrarily set standards regarding various classes of works and amateur performers and demand removal of content or petition the government to outright block access to websites, creating an Internet government-sanctioned blacklist.

Internet service providers (ISPs) that are part of a corporation which creates content, such as Comcast, could also then use these laws for anti-competitive practices, arbitrarily enforcing/not enforcing potential infringements of their content or their competitors. Where NBC and G4 could be weaponized and empowered… the potential for abuse is staggering.

SOPA/PROTECT IP would also strip the limited defense websites enjoyed under DMCA, and sites could be considered liable for the worst of the worst user, which means that they’d need to penalize all users to protect themselves. Since the bills allow actions against suspected sites, as opposed to just convicted sites, all Internet sites would need to chill the speech placed on them in order to avoid potentially crippling legal responses. Thus companies and sites like Justin.tv, Twitch.tv, Ustream.tv, Tumblr.com, Facebook, YouTube, Google+, Blogger and WordPress, which used to be immune from prosecution for the content posted on them, would now need to monitor every communication, if they wanted to avoid liability. This will result in a chilling effect across the web.

Further, several experts have warned that the domain name system (DNS) filtering requirements of PROTECT IP would weaken Internet security and stability. The filtering provisions would not serve their goal of lowering piracy, but threaten the security and stability of the global DNS. Further, they would undermine the universality of domain names, which has been a backbone of how the Internet is navigated. The experts warn that many of the tools and stated goals of both the government and business related to prevention of cyber attacks and Internet security would be undermined by these bills.

SOPA/PROTECT IP also relies on copyright holders setting arbitrary standards regarding economic impact and prosecution for various classes of works and amateur performers. Since items posted to the Internet can be accessed immediately and universally, copyright holders could claim every post would be extremely costly.

These bills could impede or block constitutionally protected speech. This point is especially troublesome in the shadow of the great video games speech victory earlier this year, Brown v EMA, where the Supreme Court finally held video games to be such protected speech in their own right.

Since we already have laws covering this area on the books, it defies logic to further burden American consumers in these arbitrary and capricious ways. The ECA stands in opposition to these bills. To lend your voice, check out our free online tools, read more about the subjects or help us fight for our rights, visit: http://theeca.com/video_gamers_rights

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Comments on “SOPA/PROTECT IP Would Be Hideously Bad For Video Gamers”

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41 Comments
Anonymous Coward says:

Desperation...

Can you all feel it? The trolls/shills are no longer just doing the 9 to 5. They’re out in full force and growing in numbers as the opposition grows to this dreadful piece of legislation. The MAFIAA must be hiring unemployed recruits to work out of mom’s basement ’round the clock, googling anything SOPA related to go on the attack.

It’s pathetic really. They grow more insulting and vulgar every day and do nothing to rally support. I see it as a Red Flag of desperation because it’s a shit piece of legislation they so desperately want, though in the end, even if it gets the votes, it will be challenged in court all the way to the Supreme Court and get thrown out on Constitutional grounds.

Rikuo (profile) says:

Re:

“SOPA/PROTECT IP would also strip the limited defense websites enjoyed under DMCA, and sites could be considered liable for the worst of the worst user, which means that they’d need to penalize all users to protect themselves. Since the bills allow actions against suspected sites, as opposed to just convicted sites, all Internet sites would need to chill the speech placed on them in order to avoid potentially crippling legal responses. Thus companies and sites like Justin.tv, Twitch.tv, Ustream.tv, Tumblr.com, Facebook, YouTube, Google+, Blogger and WordPress, which used to be immune from prosecution for the content posted on them, would now need to monitor every communication, if they wanted to avoid liability. This will result in a chilling effect across the web. “

That’s from the article. The article you didn’t read. The article that for some reason you think didn’t spell it out.

Anonymous Coward says:

If a pair of bills on Capitol Hill, called the Stop Online Piracy Act (SOPA) and PROTECT IP, pass,

They’ll probably both pass. None of these politicians are going to change their minds; you can’t change your mind if you don’t have one in the first place.

Frankly, I think digital society at large would be better off if they stopped wasting their time trying to help the US government understand modern social norms and just went straight to doing end runs around the impending censorship, preferably rendering it ineffective before it’s even implemented (for maximum lulz).

I mean, they’re going to do that anyway, but why not get a head start?

Liz (profile) says:

Re:

SPELL OUT EXACTLY how it won’t be under SOPA.

Any video that features in-game music, audio, visual effects, characters, themes, or any other associated bit and byte falls under the parent company’s copyrights.

It’s even worse when those games that utilize licensed music and software from OTHER companies. Music games like Guitar Hero and Rock Band series fall under both the copyrights of both the RIAA and the Software Industry.

Madden NFL, FIFA Soccer, 2KSports titles that cover Major League Baseball and National Basketball League, all use licensed material, voices and images of professional announcers and players. As well as trademarked logos – in an arena that’s already heavily over protective of it’s imagery.

DC Universe Online, Green Lantern, Batman: Arkham Asylum and Arkham City, Spider-Man: Shattered Dimensions, Marvel vs. Capcom games all tie into both Marvel Comics (now a subsidiary of Disney) and DC Comics (owned by Warner Bros.) are also licensed by different software developers.

Lord of the Rings, Alien vs Predator, Harry Potter, Pirates of the Caribbean, Indiana Jones, Star Wars, Transformers, The Fast and the Furious and a host of other movie tie-ins are another set of games have a multitude of cross over copyrights.

With so much of a briar patch of copyright and trademark involved, ANY ONE of those entities could file a complaint to have a site taken down. Not just the video. The ENTIRE WEBSITE! So to avoid just the risk of being shut down, internet hosts like Youtube, Vimeo and others will have to block access to users in general. Because that is what companies do. They do what they can to avoid litigation.

ON TOP OF THAT! There are executives in the Entertainment Industry (this includes music, movie, literary, and video game industries) who claim that there is no such thing as “Fair Use.”

While a user broadcasting their romp through a virtual world might be seen as fair use. Or a reviewer panning a particularly terrible game (ahem… Duke Nukem) might be covered under Fair Use, it doesn’t stop a ‘concerned party’ from filing a complaint against a website where the entire burden is on the ISPs and web hosts to prove their innocence.

In this regard, SOPA violates the 1st (Free Speech), 4th (Search and Seizure), and 14th (Due Process) Amendments of the U.S. Constitution.

Anonymous Coward says:

What about video game service, ON LIVE?
The entire basis for the service is that you rent/buy a game, and the game is played on remote servers and the audio/video is streamed over the internet to your television. The entire game is being streamed over the internet to your TV.

While I despise/loathe On Live, because not only does it takes the physical copy away from you, it also takes the digital copy away from you (so you really don’t “own” jack shit). If the service disappears your out of a game (or multiples).

Even still, I think the entire idea is quite innovative. It means no one ever has to worry about upgrading their pcs, or buying a really expensive console.

Anonymous Coward says:

Re:

You’re completely glossing over the fact that ‘fair use’ is an affirmative defense that can only be confirmed with a trial. The bill clearly creates a period between accusation and verdict that is very harsh to the accused so the ultimate legality is irrelevant to the affects. By creating broad liability for third parties before a trial is ever begun any form of ‘fair use’ is going to be discouraged as it invites this liability, and this is the important part that you are missing, even if the use turns out to be fair. It’s not a question of what is and is not legal, it’s a question of what damage will be done before what is and is not legal is properly decided by a court of law.

Anonymous Coward says:

Re:

Rikou, the article is opinion, not fact.

There is no indication, none at all, that these sites would be at risk, especially not if they take reasonable steps to keep their sites legal.

The sites you list are currently immune from prosecution for the content posted on them, and many of them have built their businesses on grifting content and then saying “oops, sorry” when they get caught.

Sites that permit anonymous users to upload files without restriction and without checking the content should be liable, they are taking a huge risk and facilitating illegal behaviour. Only the safe harbor protections of DMCA have kept them from eating it legally, and soon those will no longer apply.

Times change, they need new business models to stay in business.

The only chilling effect is on illegal, non-protected speech. I don’t see an issue, and I doubt the courts will either.

samalander says:

Please post the following on your facebooks:

THE INTERNET IS UNDER ATTACK. Fighting for our freedom: Facebook, Google, LinkedIn, Twitter, Yahoo!, Zynga, AOL, eBay, and Mozilla together issued a joint letter to congress today opposing the SOPA internet censorship bill. They say this is a fight for the future of the internet. REPOST THIS MESSAGE, I want to see you all repost this. Write congress here: http://americancensorship.org/ Proof is here: http://blog.mozilla.com/blog/2011/11/15/mozilla/

hater says:

Re:

Awww… babywannacwyy?

The article have more facts than your ultra-biased whining. rofl!

This has NEVER been about copyright. The Church controlled the scribes. The king controlled the presses. The government controlled radio & TV. For the first time in history, information is FREE!! Something big corporations cant stand. Something that reduces publishers to nothing more than wallets. Making IPs liable for any information they pass along is the tactic whith which publishers are trying to turn Internet into Cable TV.

So… You can imagine how much I DONT care if the Rick Astleys of the world doesn’t ever gets a single dime, ever again…

Brand says:

Companies

So wait, wouldn’t the companies that Publish the such video game have to make a claim before it is taken down and the uploader is punished? So if video game publishers don’t want their online community to crumble, they won’t claim anything, just like they do now! and the video game online community would be saved? Or at least the games that don’t use music from the music industry or themes from movies. Is that how it works?

the freak says:

Microsoft

Would this bill be retroactive. Cause if it does then Bill Gates, Steve Jobs, Steve Wozniak, and the whole internet is going to jail because they all stole from each other. Ibm, Xerox, Tandy computers, Apple, Microsoft, Adobe, they all stole someone elses Intellectual property. Now these same idiots do not want anyone competing with them. Att stole from Ma bell in a chain succession as transfer was broken from the bell companies, the electric companies stole from Tesla, It goes on and on. Everytime someone steals something they want to keep others from doing the same. there is nothing new under the sun. Some way someone makes an invention or idea and someone else will have that same idea before or after them not ever knowing the person. How do you think the ancient civilizations made the same pyramids thousands of miles away. Yet we think we are arrogant enough to own anything. We own nothing and took everything from something else. No one has the right to own intelligence it is not theirs to own. You do not own things you think about first. How would we ever had any artwork. You think this will hurt the internet. these bills will spill over to the public within the first week of implementation. Any artwork made the same as another will be subject to fines or jail. Same goes for othere things. Inventions will grind to a hault. We can not make anything after these bills. Anyone will be the owner with a piece of paper and nothing new could be improved or gained of an existing product. So no more copy products and then no cheap things ever. Imports would have to stop as the things made like others could not be imported. think it out this is a total stop of a free society and a massive control by companies. the same companies you bailed out now want more money.

Silver Fang (profile) says:

Re: Microsoft

Exactly! Throughout history all art and innovation has come from copying and improving on something that came before. Shakespeare’s Romeo and Juliet was derived from an Ancient Greek story called Pyramus and Thisbe. By modern standards, Willie would be a pirate instead of a playwright.

Human nature is to copy, remix and mashup anything and everything we sense. These bills that want to make it so people only publish things that are 100% their own fly right in the face of one of our most basic impulses and will be the death knell of creativity as we know it.

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