Metal Gear Solid 2 And 3 Taken Off Digital Storefronts Over Licensing For Historical Videos

from the copyrighting-history dept

When you let ownership and copyright culture fester, breed, and expand, eventually it gets out of control. While that might sound like an obvious sort of thing to say, allowing it to happen produces unexpected but also obvious results. For instance, allowing this to happen creates a culture of fear around what those creating new content can do with existing content. While readers here will be familiar with the importance and practical usage of fair use, caution often causes creators to shy away from that affirmative defense.

For instance, Konami recently announced that the second and third iterations of its Metal Gear Solid franchise are being temporarily pulled down from digital storefronts, as are any digital collections that include those games. Why? Well, it appears that Konami had originally licensed a bunch of historical war footage to use as snippets in those games and those licenses lapsed without being renewed.

The company’s full statement reads:

*** [Important Notification] Temporary removal of METAL GEAR SOLID 2 and METAL GEAR SOLID 3 from digial storefronts (PlayStation®3, Xbox 360, Nintendo 3DS, etc.)

Thank you for playing the METAL GEAR series.

We are currently working on renewing the licenses for select historical archive footage used in-game, therefore, we have made the temporary decision to begin suspending the sale of METAL GEAR SOLID 2, METAL GEAR SOLID 3 and all products that include these games from digital storefronts globally starting from November 8th, 2021.

We sincerely ask for your patience and understanding as we work towards making these products available for purchase once again.

Thank you for your continued support of the METAL GEAR series.

As news of this has gotten around, there are a great many people taking a great deal of pleasure giving Konami a great deal of shit for forgetting to re-license this footage. In fact, it seems many people are looking at this as an example of Konami being careless and disorganized. And to that extent, yeah, it was! But I have a vastly different question.

Why was this historical footage licensed in the first place? Because all of this could have been a non-issue if Konami did what it should have done in the first place: use the footage and rely on fair use in order to do so. Applying the four factors test for fair use — the purpose of use in the new work, the nature of the work used, the amount of the copyrighted work used, and the effect on the market for the work used — seem to lead to one obviously conclusion, which is that this would fall under fair use.

We’re talking about relatively short clips of historical war footage in order to bolster a new artistic work in the form of a video wargame, which is protected speech, with nothing to suggest that someone would view the footage in the video game rather than going and paying to see it elsewhere. That this was ever licensed in the first place is absolute nonsense…

…unless you are steeped in permission culture, of course. Then it makes perfect sense. We’re afraid and so we’ll license this instead of relying on the protections the law actually allows. And if that doesn’t suck, I don’t know what does.

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Companies: konami

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Comments on “Metal Gear Solid 2 And 3 Taken Off Digital Storefronts Over Licensing For Historical Videos”

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23 Comments
Anonymous Coward says:

Re: Re:

yes it is. konami has for years used copyright as a weapon against its fans, ignoring the concept of fair use entirely… and now that attitude has come back to haunt them. now they’re feeling the pain of being blocked from distributing something they have the legal right to distribute (or at least should have, if they had only made use of them when they were creating these games). this is the time to rub their noses in the consequences of their behavior

Anonymous Coward says:

Re: Re:

I don’t know. "We can’t let you do something legal because we fucked up on our copyright maximalism" seems to be a good enough reason.

On another note, there’s probably some IP jackass out there squealing, "If we didn’t enforce our copyright nobody would be motivated to create historical war footage!"

Stephen T. Stone (profile) says:

Re: Re:

"We can’t let you do something legal because we fucked up on our copyright maximalism" seems to be a good enough reason.

Did Konami fuck up with the licensing? Yes. But what’s the bigger problem: Konami fucking up with copyright licensing or a copyright system Konami didn’t invent making that licensing necessary in the first place?

Samuel Abram (profile) says:

The problem with fair use…

Why was this historical footage licensed in the first place? Because all of this could have been a non-issue if Konami did what it should have done in the first place: use the footage and rely on fair use in order to do so.

There’s a problem with that: Fair Use is a provision only within the jurisdiction of the United States, and other nations and jurisdictions don’t have that, but they do have fair dealing. Rather than deal with a bunch of different safety valves in a bunch of different countries, it makes more sense (from Konami’s perspective) to ask permission.

I think that may also be the problem. If © were "opt-in" instead of "opt-out" on a global scale, this would be less of an issue. That’s why copyright reform should include renegotiating the Berne Convention if we’re going to make copyright sane again.

Anonymous Coward says:

You are right but most country’s outside the USa have no fair use, the Sony and Xbox digital stores are global they could win a fair use case in America and still be sued in the UK, Germany etc this problem constantly comes up in games that have licensed music.
Maybe we need a new international convention that makes fair use international in Europe Asia America
When those games were made most people bought games in shops so it was not an issue
Now most games sold are digital downloads

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:

And as part of that renegotation, make sure that any material licensed for use remains licensed. If I pay to license a song to appear in a movie, then it’s licensed. I shouldn’t need to relicense it if I release the movie on DVD, then re-license it if I release it on Blu-Ray, then re-license it if I put it on streaming, then re-license it again because the streaming license only lasted for a certain amount of time, or be forced to stop selling my movie because I’m suddenly infringing.

If it’s in the movie, it’s in the movie. Period.

Scary Devil Monastery (profile) says:

Re: Re: Re:

"it’s possible to negotiate the use of something in Country A, then organize its use in Country B via a different mechanism"

Do you know the hourly bill of a skilled IP lawyer?
No? I’ll give you a hint – it’s pretty damn high. Trying to multiply that cost a hundred times or more to cover half the countries in the world is going to cost you so much it’ll cut very hard into your expected margins. To the point where the law firms you’ve retained will earn more than you do.

charliebrown (profile) says:

Re: Re:

I agree with the need for international fair use but negotiation on one goets nowhere fast because the lobbyists for MP+RI-AA claim it will only lead to rampant piracy. I mean, in reality, it’ll just draw more attention to works which will lead to more sales of those works as opposed to them just laying in obscurity, but what would I know?

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