Earlier this week, the worlds most popular YouTuber PewDiePie landed in hot water over a racist slur he shouted while livestreaming PUBG.
And as many bystanders–myself included–predicted, it was only a matter of time before he screwed up again.
just pewdiepie almost saying the n-word again literally two days after he said it and then promised to “do better” ? pic.twitter.com/dIvTZMyKP9
— fiona (@neonfiona) September 15, 2017
I’ll be honest, I do kind of understand why this happened so soon, and in some way I can empathize with Pewds. PewDiePie has likely spent years viewing overt and more casual–and thus seemingly innocent according to racists–racism as a form of humor. Anyone who has ever tried to correct any long term bad habit knows that they’re not easy to break. And it’s certainly not an instant fix either. Now to be clear, racism is inexcusable, but it’s a difficult situation in this case. We have someone who has screwed up far too many times, and despite multiple promises to be a better person, he has yet to make serious gains in the area of being anti-racist.
While PewDiePie managed to prevent himself from using racist language this time, the fact that he was about to use it at all may make his recent troubles that much worse. After all, Campo Santo Games has already filed a DMCA takedown of his Firewatch videos, which has been accepted by YouTube and resulted in a copyright strike against the world’s richest YouTuber.
Here’s PewDiePies response video:
Now you might be thinking that this strike constitutes an unfair utilization of DMCA policy against PewDiePie, you might want to pump the brakes a bit. Despite what both PewDiePie and his fans claim, it’s not entirely cut and dry in terms of whether his gameplay and commentary constitutes fair use.
It’s true that video games inhabit a special place in terms of DMCA and fair use protections. In ‘Video Games, Fair Use And The Internet: The Plight Of The Let’s Play’ from Vol. 2015 Issue 1 of The University of Illinois Journal of Law, Technology, & Policy, Ivan O. Taylor Jr. examines three gaming videos according to all four criteria and concludes that Let’s Plays “could very well fall under the protection of the fair use doctrine.”
But often developers and publishers can skirt around this issue by making blanket licenses available through public statements, in effect allowing YouTubers and streamers to monetize and otherwise use their game(s) without fear of legal repercussions. Although due to the constant headaches caused by everything from DMCA trolling to YouTube’s nightmarish automated takedown system, the execution of these licenses is always messy. After all, YouTube must comply with DMCA claims in a blanket fashion in order to maintain its “safe harbor” status. YouTube’s goal is to insulate themselves from liability for the huge amount of infringing material on their platform.
Further adding to the complication is the fact that a company can retract it’s license in a variety of ways, either in total or on an individual basis. That individual retraction is what happened between Campo Santo and PewDiePie.
Earlier this week, video game attorney Ryan Morrison clarified that the statement is a license, which is automatically revocable under the law unless it explicitly states otherwise.
Morrison went deeper on his own podcast, Robot Congress, saying that, “there’s no dispute here, the law is the law on this, there’s no grey area to even talk about… The easy answer here is, yes, they are allowed to DMCA PewDiePie’s video.”
“That license…since it’s just two lines written on a page, defaults to revocable,” Morrison said, adding, “that means [Campo Santo] can revoke it at any point, and for any reason, including somebody saying the n-word.”
Although to be thorough, Morrisons firm was embroiled in a lawsuit with another popular YouTuber, H3H3 Productions, over whether H3H3 stole content. The judge in that case ruled in favor of H3H3, so that may have set some form of precedent that could influence any future proceedings between PewDiePie and Campo Santo Games.
