Popular GameStick Project Briefly Deleted From Kickstarter Over DMCA Takedown

from the improved-processes dept

A few months ago, we criticized Kickstarter for the way it handled DMCA notices -- basically just deleting the project entirely, without providing any additional info. There didn't appear to be a counternotice proposal or anything like that. That post actually resulted in a nice conversation with Kickstarter about ways in which they might improve their DMCA process. I'm happy to see that with another high profile DMCA takedown sent to the site, the situation has been handled somewhat better, though I still have some questions about it.

The takedown involved the Gamestick project, an Android-based video game console the size of a USB stick, built into a controller. It's a really cool project, which you can check out here. Not surprisingly, it has received tons of attention, buzz and (of course) donations. But, yesterday, for a brief time, the campaign disappeared for a period of time due to a DMCA takedown. Unlike in the past, the message on the missing page at least contained a little more info:
Furthermore, Kickstarter also sent a notice to all backers of the project:

This is a message from Kickstarter Support. We’re writing to inform you that a project you backed, GameStick: The Most Portable TV Games Console Ever Created, is the subject of an intellectual property dispute.

The law requires that we remove the project from public view until the process is complete or the dispute is resolved. If we are not able to re-post it within 30 days, we will cancel the project, all pledge authorizations will expire, and the project will be permanently unavailable.

If you’d like to manage your pledge, you can do so through the project page:

http://www.kickstarter.com/projects/…ever?ref=email

If you have any questions, we encourage you to message the creator directly. You can also do this from the project page.

Thanks so much for your patience and cooperation,
Kickstarter

The campaign was turned back on after a little while, and the full story came out. Apparently, one of the video games that the company shows working in the video was not "cleared" for use by its creators, and they sent the takedown. Playjam edited the video in the question and Kickstarter quickly put the video back up.

All's well that end's well, though there are still a few oddities here. First off, Kickstarter's notice (while better than no notice!) isn't really accurate. The law does not require Kickstarter to remove the project from view. It does provide incentives for Kickstarter to do so, but that's not the same thing. Of course, Kickstarter has the right to remove whatever project it wants, and no one expects them to have to make a full call on each takedown notice, but it's simply not accurate to say they're required to do so. It's just that they risk losing safe harbors if they don't.

The other oddity: the copyright claim itself. I can't see how the video itself or anything on the campaign page would be infringing. Misleading? Perhaps, if it implied that the specific game would be on the device that wasn't fully licensed. But that's not a copyright issue. The video itself might be evidence that PlayJam itself was infringing on the nameless video game company's copyright with its use of the game. Perhaps there's an argument that whatever was seen of the game in the video would be a copyright issue, but that seems like a huge stretch. There would be strong de minimis or fair use responses in both cases. Also, unless there are significant additional circumstances, it seems odd that the video game company didn't embrace this as a way to get free publicity from a very popular Kickstarter project. So it still strikes me that the Kickstarter page and the video itself should not have been seen as infringing. That they might have been misleading is reason enough to change it, but it's unfortunate when people automatically assume that situations like this must be a copyright violation.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Atkray (profile), Jan 11th, 2013 @ 11:22am

    The "infringement" was someone else using the game without paying the "creators". Never mind that it was essentially free advertising for them. It is the entitlement mindset that copyright has created.

     

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  2.  
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    weneedhelp (profile), Jan 11th, 2013 @ 12:12pm

    Fuck kickstarter

    The process should go like this:

    1. Asshat claims copyright valid or not.
    2. KS should immediately contact its user with the claim.
    3. in 20 min with a movie editor it was changed
    4. User notifies KS the issue has been resolved.
    5. KS tells copyright troll to fuck themselves.

    But in my opinion this is great. Lets get as many PPL aware of the copywrongs as possible.

    "Apparently, one of the video games that the company shows working in the video was not "cleared" for use by its creators, and they sent the takedown. " - Great job assclowns; Can you guess who's game will definitely not be included in what they are doing now?

    Anyone know what game it was?

     

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  3.  
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    Boojum (profile), Jan 11th, 2013 @ 12:22pm

    I can see copyright infringement

    I suspect that if I were to take screenshots of a video game and then used them to advertise my own product that has nothing to do with that video game then there would be a copyright violation for the artwork that appears inside the video game (leaving aside trademark for a moment, which would be a different matter).

    Remember, the graphics inside of a game are also copyrighted. While you could draw your own plumber, if you screenshot Mario and put him on a poster to sell tampons you have performed a copyright violation.

     

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  4.  
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    Lord Binky, Jan 11th, 2013 @ 12:25pm

    So now should they shame the owner that sent the DMCA takedown, and risk giving them additional publicity. Or should they let them remain in the obscurity they so obviously desire.

     

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  5.  
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    Zos (profile), Jan 11th, 2013 @ 12:35pm

    Re: I can see copyright infringement

    but if you screenshot mario and used him to sell game controllers...which would then be used to play mario games which would need to be purchased, it's a slightly different situation.


    there's no brand confusion, there's no way in which any attention for that particular game could have done anything but help their sales.

     

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  6.  
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    Zos (profile), Jan 11th, 2013 @ 12:36pm

    Re: Re: I can see copyright infringement

    note- i'm not saying they weren't perfectly within their technical legal rights (as assholes) to dmca it, since apparently fair use is a fairy tale, just that it was a stupid counterproductive move that would only be contemplated by asshats or lawyers.

     

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  7.  
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    Neil Roy, Jan 11th, 2013 @ 12:47pm

    I would avoid using Kickstarter for anything at all personally. If this is how they treat people, than I could care less about them. I would like to know which company started this so I can avoid buying any of their products in the future. I don't wish my money to be supporting them in any way.

     

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  8.  
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    Boojum (profile), Jan 11th, 2013 @ 12:50pm

    Re: Re: I can see copyright infringement

    Brand Confusion has to do with Trademark, not Copyright. Copyright has to do with who has the right to make copy's of a particular work. We have exceptions for fair use, but I'm not sure that applies to this case. I also don't feel that the use here was transformative. Indeed, I feel they were using peoples enjoyment of the games displayed on their console to better their chances of getting money.
    Also, I don't agree you can use a screenshot of mario to sell game controllers without permission from the copyright holder. Until the copyright laws are changed, I believe that is the case. What you CAN do is screenshot (or copy the cover or many other things) mario if your selling the Mario game you bought before, because you have a right to provide an example of a work as part of selling it.

     

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  9.  
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    John Fenderson (profile), Jan 11th, 2013 @ 1:14pm

    Re: Re: I can see copyright infringement

    There's no requirement for brand confusion when it comes to qualifying as a copyright violation. That's trademarks.

     

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  10.  
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    Anonymous Coward, Jan 11th, 2013 @ 1:32pm

    Well the guy is actually at fault here BUT! they could have at least gave them a chance to fucking fix it.

    They could have also temporarily disable ONLY the video until the dispute was settled.

    They should have looked at it like so.
    Was the product itself in danger over the dispute?
    Nope.

    If KS would learn to think before they act this type of shit would not happen.
    Yeah that also applies to the project owner as well.


    Now the owner of the copyrighted content could have also requested the video only be removed.
    He could have directly contacted the project owner/s which I'm sure they would have complied no questions asked.

     

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  11.  
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    Anonymous Coward, Jan 11th, 2013 @ 1:47pm

    'it seems odd that the video game company didn't embrace this as a way to get free publicity from a very popular Kickstarter project'

    had they have done so, it could have led them to losing some of the control that all members of the entertainment type of industries seem to value more than common sense and customers!

     

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  12.  
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    JMT (profile), Jan 11th, 2013 @ 2:57pm

    Re: Re: Re: I can see copyright infringement

    "We have exceptions for fair use, but I'm not sure that applies to this case. I also don't feel that the use here was transformative. Indeed, I feel they were using peoples enjoyment of the games displayed on their console to better their chances of getting money."

    I think the fair use claim is fairly strong, but whether it's technically infringement isn't the important point. What losses or harm have the game's creators suffered from someone else effectively giving them free promotion? I'd argue absolutely none. Contrast that to the harm from portraying themselves to potential customers as copyright bullies attacking others in the gaming community who aren't even direct competitors. Sound pretty damn stupid to me.

     

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  13.  
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    PRMan, Jan 11th, 2013 @ 3:18pm

    Re: I can see copyright infringement

    Trademark violation.

     

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  14.  
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    Boojum (profile), Jan 11th, 2013 @ 3:39pm

    Re: Re: Re: Re: I can see copyright infringement

    I think the fair use claim is fairly strong, but whether it's technically infringement isn't the important point. What losses or harm have the game's creators suffered from someone else effectively giving them free promotion? I'd argue absolutely none. Contrast that to the harm from portraying themselves to potential customers as copyright bullies attacking others in the gaming community who aren't even direct competitors. Sound pretty damn stupid to me.


    Really? Which fair use claim do you feel applies? I was unable to think of one.
    But that it was copyright infringement was the point of my statement, in answer to the person who thought there wasn't any. Honestly, I agree they seem to have handled it poorly. I would think they would have granted the company a limited copyright and used the good will to suggest that the company actually license or sell their game as part of the product. That way both groups make money.

    However, just because I think that's better doesn't mean the copyright owner thinks it was. They could have gotten badly burned on other deals they made. They might not like the people who have the kickstarter. Their religion may prevent them from profiting from their product. They might be contracturaly obligated to the original artist to prevent others from using the art. I don't know. The truth is that we don't have laws to prevent people from being assholes. We can choose not to do business with them, to encourage others not to do business with them, to make fun of them, and all sorts of other options. But the truth is that they do seem to have the copyright that they are claiming, as opposed to all the news reports on groups who don't have a valid copyright but still file a DMCA takedown request.
    In this case, I'm glad to see the problem was quickly resolved. I would have wished that the company had contacted the android joystick maker first, rather than open a DMCA takedown.. but at least this time they seem to have the right to request a takedown. Now all we need to do is get the DMCA repealed.

     

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  15.  
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    Anonymous Coward, Jan 11th, 2013 @ 3:57pm

    Re: I can see copyright infringement

    True, but that doesn't make sending a takedown letter the best way of handling it, or Kickstarter's response to the takedown letter ideal.

     

    reply to this | link to this | view in thread ]

  16.  
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    nasch (profile), Jan 11th, 2013 @ 6:11pm

    Re: Re: Re: Re: Re: I can see copyright infringement

    Really? Which fair use claim do you feel applies? I was unable to think of one.

    Four factors:
    the purpose and character of your use
    the nature of the copyrighted work
    the amount and substantiality of the portion taken, and
    the effect of the use upon the potential market.

    1. This is clearly transformative, I don't know how you could argue otherwise. The copyrighted work is a video game, and the new work is a video demonstrating a piece of hardware. Completely different nature and purpose.

    2. Nature - this one doesn't particularly weigh in favor of fair use as far as I can tell

    3. Amount of work used - presumably extremely minimal though I haven't seen the video. I can't see why they would use a large portion of the game in a demo video.

    4. Effect on the original work - somewhere between zero and positive, so also clearly in favor of fair use.

    3 out of 4 ain't bad, this seems like a nearly slam dunk fair use case.

     

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  17.  
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    G Thompson (profile), Jan 11th, 2013 @ 9:34pm

    Re: I can see copyright infringement

    Nope that would be at most a trademark violation only.

    Since the copyright of the video is owned by the videographer only. Just becasue some copyrighted work is video'd or imaged does NOT mean that it is a violation of copyright, no matter what companies want you to think. This is even more true when the alleged game that was somehow infringed was a part of a wider amount of video'd games so therefore the transformative process is even higher.

    Basically companies get butthurt by having there products filmed. the USA's media is part of the problem in how they 'blur' logos and other things on clothing, signs, etc during news stories etc. There is no legal basis for it and is perpetuating the nonsense leading to people claiming infringement.

     

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  18.  
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    JMT (profile), Jan 11th, 2013 @ 10:34pm

    Re: Re: Re: Re: Re: Re: I can see copyright infringement

    Thanks, saved me the trouble.

     

    reply to this | link to this | view in thread ]

  19.  
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    That Anonymous Coward (profile), Jan 11th, 2013 @ 11:33pm

    Re:

    And the best FU answer is to say the GameStick will no longer support play of that game... ever.

     

    reply to this | link to this | view in thread ]

  20.  
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    Anonymous Coward, Jan 12th, 2013 @ 12:27pm

    Re: Re: Re: Re: Re: Re: I can see copyright infringement

    Ah but copyright holders think that they can exercise total control over all copies and any use no matter how short or trivial. Many would rather fight a case through as many appeals as possible rather than admit fair use exists. The cost and time involved in proving fair use is prohibitive, so the copyright owners curtail fair use by using the DMCA and the t6hreat of a long legal battle.
    In this case fighting for fair use is pointless, as the product will (hopefully) be on the market, and the video no longer needed, before they could get the video clip restored.

     

    reply to this | link to this | view in thread ]

  21.  
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    E G Nyquist (profile), Jan 12th, 2013 @ 1:48pm

    Once again some half-witted content holder misuses the DMCA in order to prevent even fair use uses of copyrighted material.

    This is just more evidence on the pile that Fair Use needs to be explicitly laid out by the law.

     

    reply to this | link to this | view in thread ]


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