Makers Of Payday 2 Donating DLC Profits To Help 2 YouTubers Fight Copyright Lawsuit

from the good-guys dept

The landscape of YouTubers who do reviews or takes on video games, including Let's Plays, and their interactions with the game makers themselves is one that lacks any sort of norm or uniformity. Some game developers understand the value these YouTubers bring to their businesses, while some tend to go on the attack with copyright claims. Some developers appreciate an open and honest ecosystem of reviews, including snarky reviews, while others attempt to suppress any sort of negativity.

But, as far as I'm aware of, Overkill Software, makers of Payday 2, is the first studio to donate proceeds from its DLC content to defend YouTubers from copyright lawsuits.

Ethan [Klein] and Hila [Klein], who run the YouTube channel H3H3Productions, make sketch comedy and “reaction” videos in which they comment on internet and YouTube culture. Last year, the husband-wife team filmed a video mocking YouTuber Matt Hosseinzadeh, or “Bold Guy,” for his video about picking up girls using parkour. In response, Hosseinzadeh filed a complaint with the Southern District of New York District Court alleging copyright infringement. In the complaint, Hosseinzadeh accuses the Kleins of “purporting to discuss the Work in what they believe to be a humorous manner but in fact reproduces virtually all of the Work as nothing more than a prop.”

Now, we've discussed this lawsuit previously. It's a suit clearly designed to shut up two critics who engaged in what seems to be pretty straightforward Fair Use of Hosseinzadeh's content. Following along with the court proceedings, the last entry seems to indicate the court feels this whole thing, which has already gone on too long, will end with a summary judgement. I can't be certain the court feels that this is going to end up going in the Kleins' favor, but that would be my educated guess based on our previous analysis of the suit.

Regardless, Overkill Software has swooped in to try and help the Kleins by baking them into Payday 2 via DLC and using any money made by it to fund the Kleins' legal efforts.

On April Fools, Overkill Software introduced Ethan Klein into first-person shooter Payday 2. Yesterday, Overkill, who are fans of the Kleins, announced they’ll be making the joke a permanent, and charitable, reality. This Fall, the faces behind H3H3Productions will be playable characters in Payday 2, and Overkill studios will donate all of the DLC’s revenue to the Kleins as they continue to fight their legal battle that, they say, could financially ruin them even if they win.

While the Kleins were initially represented pro bono, a year later, after switching firms, the price of fighting the lawsuit has reportedly snowballed, with the first month allegedly costing over $50,000. And they will continue to fight it, the Kleins say, to protect fair use and prevent a bad precedent. (YouTube personality Philip DeFranco helped raise $170,000 for them in a GoFundMe, arguing that the lawsuit is “an attempt to step on freedom of speech via a broken copyright system and most people’s confusion over Fair Use.”)

This is, to some degree, connecting with fans. Fans, at least, of the Kleins. It's also refreshing to see a game studio take the stance that they are fans of YouTubers that do some videos based on video games and are actively looking to support them against a bogus copyright lawsuit. Can you imagine, say, Nintendo doing something like this? Given its hardline stance on intellectual property, it's a difficult thing to conjure in one's mind.

Overkill, by the way, is taking 0% from the sales of the Klein DLC. It's a great look for the company.


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  • identicon
    Anonymous Coward, 16 May 2017 @ 7:29pm

    I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

    Doesn't matter how lousy the content is, nor how you judge it.

    Defendants clearly have nothing without Plaintiff's content, therefore it's not parody or transformative, but some degree of theft. They didn't assemble their own work (apparently it's not a melange skewing several persons), just added insults. -- This is literally adding insult to injury, then.

    By the way, egregious insults is exactly why Masnick has problems now. This is clearly a trend: I call it Gawkering. You should all take note that your notions about "free speech" law clearly aren't holding up, either.

    Many "pundits" on the internet make nothing of their own, but it's easy to insult. Adds nothing to society that needs the protections due copyrighted content. It riles targets immensely. It's likely that Plaintiff here only tried to entertain other people, poured out what he/she has of soul, which may not be much, and that makes it sting all the more.

    Don't insult people, kids. NO GOOD CAN COME OF IT. If that's all you've got, follow old advice and say nothing. There's no percentage in insults for you, and potential big down-side.

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

    • identicon
      Anonymous Coward, 16 May 2017 @ 7:43pm

      Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

      Don't insult people, kids. NO GOOD CAN COME OF IT. If that's all you've got, follow old advice and say nothing.

      Someone's a failure at taking his own advice.

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

    • identicon
      Anonymous Coward, 16 May 2017 @ 8:01pm

      Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

      You have no idea what "transformative" means and your views are in complete contradiction of the law.

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

      • icon
        orbitalinsertion (profile), 18 May 2017 @ 3:17pm

        Re: Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

        "Commentary" seems to be another unfamiliar word.

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

    • identicon
      Anonymous Coward, 16 May 2017 @ 9:37pm

      Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

      If the new work adds nothing and only gets in the way of the existing creative work, why would people bother to view it? I mean honestly. This means you have the option of either watching the work distraction free, or watching it with someone constantly interrupting what you're trying to watch. If the added commentary did >nothing< then it would get no traffic.

      The answer is because they >did< add something. Commentary. Criticism. Information. Even just their reaction. They get traffic because they are adding to an existing work, and arguably driving traffic for it even if they do little but criticise. People who find the base work interesting for good or ill will want to see it without all the 'interruption'.

      I personally enjoy reaction channels on youtube, as well as reviewers. This can range from enjoying the feeling of watching it with someone else without actually needing to pester my friends into watching something they don't care for to enjoying how a certain person reacts to things to just wanting to watch something over again, but wanting a little more.

      If the studio behind a major game is willing to pony up a whole DLC to support this case, it also goes to show that this isn't just some random person stealing content, but someone of a considerable degree of popularity doing work in the community. They obviously are getting enough traffic to be worth both being fought over their derivation, and receiving support from outside forces to continue it. If they were adding literally >nothing< constructive or interesting, I really don't see them being having enough of a fan base to be worth going after and DEFINATELY not worth enough to get the proceeds from an entire DLC of a pretty popular game.

      For people who don't understand the appeal, I hate to mention this to you, but the original work still exists in it's 'untainted' form, sitting there waiting for you to enjoy it. Nothing's been stolen. It's still there! Arguably, with stuff like this going around, they could probably use your business so why not support them? At the end of the day it isn't like anything has been taken away or ruined, because it still exists there for your enjoyment. The only way its really ruined is if you take the message being delivered to heart and are affected by it, at which point I'd DEFINATELY argue they added to the experience overall.

      The only argument really left to be made is 'Well I don't like it and think it's trash, so it must be'. Which is fine. The wonderful thing about opinions is they are like assholes. Everybody has their own, and life would suck if everyone was expected to share the same one.

      And before anyone accuses me of theft, I will happily admit that last line is paraphrased from the Nostalgia Critic's Les Mis musical review. Attribution :D But... I can't imagine you'd like it to much. It's just a bunch of people talking over clips of the film, and 'not making anything of their own'.

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

    • icon
      Stephen T. Stone (profile), 16 May 2017 @ 10:01pm

      Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

      Doesn't matter how lousy the content is, nor how you judge it.

      IT’S ALL ABOUT THE GAME, AND HOW YOU PLA—wait will anybody here even get that reference?

      Defendants clearly have nothing without Plaintiff's content, therefore it's not parody or transformative, but some degree of theft.

      Technically, it would be “copyright infringement”, and copying—even illicit copying—is not theft.

      They didn't assemble their own work (apparently it's not a melange skewing several persons), just added insults.

      Late night talk show hosts do this all the time; nobody sues them for copyright infringement over it.

      This is literally adding insult to injury, then.

      Technically, it would be adding insult to copyright infringement—the plaintiff still has to prove any actual injury that comes from the infringement, after all.

      By the way, egregious insults is exactly why Masnick has problems now.

      Nah, he has problems because some half-assed half-ass thinks he can use the legal system to shake down yet another journalistic outlet that called him out on his whole-assed lies.

      This is clearly a trend: I call it Gawkering.

      Better outlets than Gawker have been pissing off dumb rich motherfuckers for decades before that site was ever even an idea. This is not some new idea, no matter how much you think you came up with it before anyone else and think you deserve all the credit for it.

      You should all take note that your notions about "free speech" law clearly aren't holding up, either.

      Several courts have ruled that the usage of an entire work within another work can, under certain circumstances, be considered Fair Use. The law is generally unclear on this (as a good chunk of Fair Use law often is), but do not act as if there is no precedent for the idea.

      Many "pundits" on the internet make nothing of their own, but it's easy to insult.

      Note to self: Coming up with unique insults for individual situations is not creative, stick to the old “public domain” standbys such as “imbecile”, “half-wit”, and “the orange-skinned toupeé-wearing hobgoblin that hides underneath a child’s bed”.

      Adds nothing to society that needs the protections due copyrighted content.

      I am pretty sure that those late night talk show hosts I mentioned would disagree with you.

      It riles targets immensely.

      Yes, and? A person’s emotional response to something does not determine whether something deserves the protection of copyright. One of those awful Trump children wrote a book full of quotes and mishmashed axioms about generic “you go girl” nonsense aimed at rich white women, and she still gets the benefit of copyright.

      It's likely that Plaintiff here only tried to entertain other people, poured out what he/she has of soul, which may not be much, and that makes it sting all the more.

      Hal P. Warren poured his soul into “Manos: The Hands of Fate”, and look how that film turned out.

      Don't insult people, kids. NO GOOD CAN COME OF IT.

      “Unless you are really fuckin’ good at it, in which case you can probably become a somewhat successful stand-up comedian or some shit. But you gotta be really, really fuckin’ good at that shit, or else you’re gonna end up face-first in a toilet at a dive bar wondering what the hell happened to your life, your bank account, and your two front teeth that you vomited up ten minutes ago.”

      If that's all you've got, follow old advice and say nothing.

      Second note to self: Never say anything if it could possibly hurt the feelings of anyone else in the world.

      …shit, too late.

      There's no percentage in insults for you, and potential big down-side.

      Well, Techdirt took the piss out of the Prenda jackasses for years, and that does not seem to have brought the site down. So, uh…maybe rethink that notion.

      Oh, and I just repurposed your entire comment for the purposes of foul-mouthed commentary with a few insults thrown in for good measure, so I expect to be sued by you for copyright infringement any day now. I cannot wait to hear from your highly ethical and fair-minded atto—I mean, whatever dumbass lawyer you can dredge up to file the lawsuit.

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

      • identicon
        Anonymous Coward, 17 May 2017 @ 11:58am

        Re: Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

        IT’S ALL ABOUT THE GAME, AND HOW YOU PLA—wait will anybody here even get that reference?

        All about control and if you can take it. ?

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

    • identicon
      Anonymous Coward, 17 May 2017 @ 12:23am

      Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

      Reviews/critique as this is supposed to be is not infringing.

      What is far worse: Insults are not something you can seek relief for through copyright infringement determination. That is a completely different area of the law.

      Again, you are purporting a ridiculous myth, that copyright makes you able to sue anyone who use your work if you are thin skinned. But, Erdogan, that is not a copyright question.

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

    • identicon
      Manonymous Coward, 17 May 2017 @ 12:50am

      Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

      So close. I was actually agreeing with you until you made it clear this was just a prelude to your usual Masnickbashing. Would've been an interesting discussion to debate how much needs to be added to an existing work to make it transformative, and whether MST3K style zero-effort voiceovers qualify, but no it was just the usual again. Disappointment.

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

      • identicon
        Anonymous Coward, 17 May 2017 @ 3:37am

        Re: Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

        You know thats a good point. I'm sorry I didn't bring that up in my lengthy reply ._.

        I was just talking about how I kinda would rather just watch the movie than their disjointed and random commentary with someone XD

        Tho to be fair, I only watched the first one and pledged to give it a fair chance.

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

    • identicon
      Anonymous Coward, 17 May 2017 @ 1:15am

      Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

      Hi Matt Hosseinzadeh

      Are you bored since you go trolling here?

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

    • identicon
      Anonymous Coward, 17 May 2017 @ 5:24am

      Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

      If that's all you got follow your own advise indeed.

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

    • identicon
      Anonymous Coward, 17 May 2017 @ 6:29am

      Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

      By your own logic you are infringing on Techtdirts post. If you had an ounce of self awareness you'd realise that. But then again if you had an ounce of self awareness you wouldent be a spittle flecked authoritarian boot licker.

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

    • identicon
      Anonymous Coward, 17 May 2017 @ 7:12am

      Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

      So you're saying that in addition to all the scumbaggery Digital Homicide did to attack Jim Sterling, they also infringed his copyright when they took his review video and just pasted their mocking text on top of it?

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

    • icon
      Ninja (profile), 17 May 2017 @ 8:40am

      Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

      Oh yes, wisestest human being of the universe! Not. You are so full of bs that you got a two awesome insightful posts shredding your arguments one after the other. Congratulations I guess?

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

      • identicon
        Anonymous Coward, 17 May 2017 @ 10:42am

        Re: Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

        I'd say it was Stephen posting initially just to score points off the rebound. If I didn't know how absolutely full of shit the dreck that haunts TD actually is.

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

      • identicon
        Anonymous Coward, 17 May 2017 @ 1:14pm

        Re: Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

        My post got insightful and called awesome. I feel so loved :3 <3

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

    • icon
      orbitalinsertion (profile), 18 May 2017 @ 3:16pm

      Re: I'm going with Plaintiff: if all that's been done is add voice-over or insults to the whole (or near) of content, then it's infringement.

      Insults are irrelevant and have no substance with respect to copyright or defamation. You don't make a good argument about either, but you sure have a problem with insults and seem to think it should be an arrestable and life-destroying offense.

      Also, you seem to think the truth about ethically questionable people who make outrageous statements is an insult. Strange you seem to have no issue with the garbage they spew, though.

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

  • identicon
    CharlieBrown, 16 May 2017 @ 7:57pm

    Plaintiff obviously has no idea of Streisand or her effect.

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

  • identicon
    Anonymous Coward, 17 May 2017 @ 5:32am

    Going out of their way to help the little guys? You could say its...Overkill.

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

  • identicon
    Anonymous Coward, 17 May 2017 @ 6:22am

    #freeh3h3xton

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


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