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Culture Digitally // Examining Contemporary Cultural Production

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    • All your game plays are belong to Nintendo? May 23, 2013

      Hi everyone at Culture Digitally!  For those of you I haven’t met before, I teach intellectual property at Rutgers Law School and I was one of the founders of the Terra Nova weblog.  I’m also a Culture Digitally RSS subscriber, a big fan of the site and the authors here, and I’ve even posted a few comments now and then.

      Below is a cross-post of something I wrote for Gamasutra about Nintendo’s monetization of user-generated content on YouTube, specifically “Let’s Play” videos.  This post was written for Gamasutra’s audience of game designers (not media studies scholars).  It lay out the basic legal structure of the dispute.  For this audience, I think there are some obvious connections to the conversations around free/fan labor, the interplay of technological and legal controls, and debates over the nature of games as new media artifacts.  But the post below doesn’t explore that much — it frames the issue as a simple question of intellectual property law without much theoretical gloss.

      I’m working through these issues as part of my investigations of user-generated content, so any thoughts or reactions would be welcome.
      —–

      Recently, Gamasutra and other news sources reported on Nintendo’s claiming YouTube ad revenues for videos featuring gameplay footage.  Nintendo explained that “for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips.”  Apparently, in practice, what this means is that certain YouTubers who were monetizing extended Nintendo gameplay videos will now lose their advertising income stream.  Instead, YouTube will share those revenues with Nintendo.

      If you worked to create a video channel and a YouTube subscriber base only to have Nintendo grab your ad revenues, would you be happy about this?  No, you wouldn’t.  Zack Scott, a YouTuber with over 200K subscribers, isn’t happy.  On his Facebook page, he explains (to a growing chorus of over 8K “likes”) that he’s giving up on making any more Let’s Play videos for Nintendo games: “I love Nintendo, so I’ve included their games in my line-up. But until their claims are straightened out, I won’t be playing their games. I won’t because it jeopardizes my channel’s copyright standing and the livelihood of all LPers.”

      As Gamasutra reports, other LPers (Let’s Play creators) are upset too.  But the claim they make isn’t just that they’re being deprived of their livelihood.  They also complain, like Scott, that Nintendo is betraying its “fans” and shooting itself in the foot.  A common theme is that Let’s Play videos provide “advertising” for Nintendo, building interest in their games and helping to sustain the community of enthusiasts.  (In a similar vein, see this article on game modding by Hector Postigo.)  To put it simply, if Nintendo cuts off Zack Scott’s income stream and Scott stops making walkthroughs of Nintendo games, it’s Nintendo that loses.

      So why would Nintendo shoot itself in the foot?  The answer can be summed up in two words: intellectual property.

      As a co-director of the Rutgers Institute for Information Policy and Law, my day job is teaching and researching how intellectual property law applies to new technologies.  I also have a particular affection for the law and business of video games.  So I’m going to break the IP issues here down, as briskly as I’m able, in four component steps: 1) YouTube, 2) copyright, 3) trademark, and 4) IP policy.

      1. YouTube

      First off, I think it’s interesting that much of the media coverage of this situation is simply pitting the Let’s Play creators against Nintendo.  This conveniently lets the technological behemoth that is YouTube float in the background in soft focus.  But YouTube should really be front and center in this dispute.  Consider: YouTube created the various “livelihoods” at stake by starting its Partner Program; YouTube orchestrates and directly profits from the advertising monetization of Let’s Play videos; it is YouTube’s Content ID technology that is helping Nintendo to locate gameplay videos; and finally, Nintendo could never have usurped Zack Scott’s ad revenue streams if YouTube didn’t enable that action.  YouTube is smack in the middle of this dispute, and it is playing on both sides of the field.

      But, in a way, that’s a legally mandated position for YouTube, if YouTube wants to stay in the good graces of the copyright regime.  From the standpoint of intellectual property law, YouTube’s actions as an intermediary are primarily governed by the rules of the Digital Millenium Copyright Act, and 17 U.S.C. 512(c) in particular.  As an online “service provider” under that statute, YouTube can be shielded from liability for the copyright infringements of its users, but only so long as it complies with the “notice and takedown” requirements of the statute.  This means that when a copyright holder informs YouTube that a particular video infringes its rights, YouTube must “expeditiously” disable public access to that content.  YouTube must also comply with many other requirements of Section 512.  For instance, it must terminate account holders who are repeat infringers and must accomodate “standard technical measures” that relate to copyright policing.

      So, essentially, in order to benefit from the “safe harbor” of Section 512, YouTube is required by law to play nice with the copyright industries.  Apparently, in this case, YouTube has made the decision that playing nice means that Nintendo, not Zack Scott, is the rightful owner of the advertising revenues that are generated by Zack Scott’s Let’s Play videos.  As YouTube states in its monetization policy, “Videos simply showing game play for extended periods of time may not be accepted for monetization.”

      So YouTube owns its platform and it can run the platform as it sees fit.  But is giving Nintendo the advertising revenue stream here the right call as a matter of copyright law?  That’s a tricky question.

      2. Copyright

      Among the general public, copyright law is an increasingly familiar concept.  Still, that doesn’t make copyright “ownership” any less weird as a theoretical matter.  We know what it means to own a physical item, but when we say Nintendo “owns” fictional characters such as Mario, Toad, and Princess Peach, what does that mean?

      From the standpoint of copyright law, “ownership” means that Nintendo has the exclusive right to reproduce and distribute copies of the many works that incorporate those particular characters.  Nintendo also hold the exclusive rights to adapt those works into new forms of media and to “perform” those works publicly.  You can find these and other exclusive rights (there are six in total) in the copyright statute at 17 U.S.C. 106.  In theory, a Let’s Play video could infringe upon several of those rights.  The uploaded videos (arguably) reproduce Nintendo’s work, perform it publicly, distribute it, and may even create a “derivative work” based on it.

      But does that mean that all unauthorized uses of recognizable Nintendo works on YouTube are always infringing?  No.  Indeed, it’s notable that, in its statement, Nintendo referred to “Nintendo-owned content, such as images or audio of a certain length.”  That’s a curious qualification for Nintendo to make as the copyright holder — why “of a certain length”?  I think Nintendo is probably admitting that short clips of gameplay footage, when used in the context of commentary or criticism, are not subject to Nintendo’s exclusive control.  This is because the copyright statute, at 17 USC 107, makes it clear that the public has a right to “fair use” of copyright-protected works.  This means that, without Nintendo’s authorization, the public, in certain circumstances, is entitled to use Mario, Toad, and Princess Peach “for purposes such as criticism, comment, news reporting, teaching…, scholarship, or research.”

      So doesn’t that apply directly to Zack Scott?  Isn’t a Let’s Play video a form of commentary or criticism under Section 107?  Maybe it’s even a form of “news reporting” or “teaching”?

      Perhaps, but the case law on fair use makes it clear that not all uses of a work in “commentary, criticism, news reporting”, etc., will be fair use.  It’s certainly possible to use a work and comment upon it, yet to use too much of the work and thereby exceed the protections of the fair use doctrine.  For instance, I could not republish the entire first Harry Potter book with a few additional comments added, and claim that act of reproduction as a legal fair use.  It may be that Nintendo believes game play videos “of a certain length” will be categorically outside the bounds of fair use and should be exclusively within its control.

      Nintendo may believe that, but I’m not so sure.  As Zack Scott puts it: “Video games aren’t like movies or TV. Each play-through is a unique audiovisual experience.” I think that’s just right — the peformance of a video game is something different than a clip from a movie.  It could be argued that footage of original and creative game play — even extended footage of creative game play — constitutes a form of “transformative fair use” under copyright law.  A very recent case in the Second Circuit, Cariou v. Prince, might be understood to support this argument.  Following that case, if the aesthetic appeal of a Let’s Play video is perceived as fundamentally different than the appeal of the interactive game, fair use might actually exist.

      I’m hardly certain that the average federal court would accept that argument, but I do know that such evolutionary twists and turns are common in the law of fair use, which is notoriously unpredictable.  Indeed, I think part of what may be motivating Nintendo’s move here is the concern that the unauthorized monetization of gameplay video performance is rapidly becoming the “new normal.”  Nintendo may be concerned that if it doesn’t assert its copyright interests, courts will ultimately start to accept the practice of monetizing unauthorized game play footage as a conventional form of fair use.  And that sort of rule could have significant repercussions for the emerging North American pro-gaming scene.  (As a point of comparison, see, e.g., T.L. Taylor’s discussion of Blizzard’s dispute with KeSPA in her new book.)

      3. Trademark

      Although copyright is the IP language being used by all the parties here, it’s worth pointing out that Nintendo’s IP rights aren’t limited to copyright: Nintendo also claims trademark rights in Mario, Toad, Princess Peach, etc.  (The “Princess Peach” trademark is at Reg. Serial No. 85,497,172, if you want to look it up.)  In theory, trademark law is narrower in scope than copyright law.  Trademark is intended to protect consumers from being deceived about the source of the goods and services they find in the marketplace.  And personally, I don’t think most people watching a Let’s Play video featuring a Nintendo game are going to be confused about the origin of the video.  In other words, I doubt anyone would presume Zack Scott’s videos are the works of an employee working for Nintendo.

      However, in recent years, some trademark owners have become much more aggressive about their IP rights.  Some have sued, for instance, filmmakers who make humorous references to their products without authorization.  Statutory expansions in the legal protection of brands, such as the Trademark Dilution Revision Act, may apply to famous video game characters, such as Mario and Luigi.  For better or for worse, many trademark owners feel legally obliged to actively police against unauthorized commercial uses of their brands.  This means that concerns about Nintendo’s trademark interests, as well as its copyright interests, may explain Nintendo’s efforts to limit the emerging business models of Let’s Play monetization.

      In summary, while Nintendo may indeed be shooting itself in the foot by grabbing the revenues from YouTube Let’s Play creators, it may think this short term sacrifice makes sense in the long term.  Nintendo may be willing to shoot itself in the foot today rather than allow unauthorized monetization to shoot it somewhere closer to the heart in the future.  Nintendo may see today’s Let’s Play monetization as the tip of a looming user-generated iceberg.  It may view the loss of “free” advertising as preferable to the loss of exclusive control over the performance of its games and its associated brand.

      4. Policy

      Finally, I’ll want to add a brief appeal to you, the reader.  Nintendo might be making a mistake, but it is surely pursuing what it believes is best for its own interests.  But in the context of IP rights in video games, what do you think is in the best interest of the public?  What should be the scope of intellectual property rights in video games?

      This isn’t just an idle question — it is a matter that is being debated in Congress right now. The day after Zack Scott complained about Nintendo’s YouTube actions, a Congressional subcommittee was considering how copyright law might be better adjusted to our new digital era.  Copyright law is hardly set in stone.  Periodically, Congress rewrites the copyright statute in very significant ways.  It seems that a new balancing of digital copyright law is on the horizon in coming years.  But in the case of new media, what should that balance be?  Would we be better off in a world where Zack Scott could monetize Nintendo games in Let’s Play videos to his heart’s content?  Or is it better if Nintendo has the right to sue unauthorized Let’s Play creators for statutory damages?

      At present, I’m trying to come up with my own answers to that question, in part by gathering data about the extent of contemporary creative practices surrounding games and other new media.  As part of a project funded by the National Science Foundation, I’m doing research on the extent and nature of user creativity online.  I’m looking at YouTube and many other forms of game-related creative production.  So, if you have a second, I’d be very interested in knowing about your own creative practices related to video games.  I’ve posted a survey online here.  My research team hopes to publish the results of the survey, as well as other research from the project, by the end of the summer.  And in the meanwhile, I’d be interested in hearing your thoughts about the rights and wrongs of the Nintendo / Let’s Play kerfuffle in the comments below.
      ——

      And, to tweak that last bit for Culture Digitally: I’m also very interested in hearing your comments about the political and cultural issues present in this situation.

      -Contributed by ,  Rutgers Law School-

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      What Angelina Jolie’s breasts teach us about big data and intellectual property May 20, 2013

      Angelina Jolie’s powerful op-ed confession in Monday’s New York Times about her preventative double mastectomy has many people talking about her breasts and her choices. But we also need to talk about her data: Who owns it and who gets to use it?

      Currently there are very few clinical actions that can be taken based on an individual’s genetic data. It is simply not routine to perform genetics tests. One of the most commonly used test for the mutations in the BRCA1 and BRCA2 genes is produced by Myriad, currently costs $3,000, is targeted at only those women who think they have inherited risks. It is also at the center of a case currently before the Supreme Court over whether the company had the right to patent the isolation of the sequencing of BRCA (and other) genes. Several critics, including communication scholar Kembrew McLeod, argue that that Myriad’s intellectual property actions have harmed science and prevented genetics testing from becoming more cost-effective and widespread.

      Other consumer options are here now. One of the best-known of these is 23andme which provides direct-to-consumer testing of several “snips” or single-nucleotide polymorphisms of genetic interest, including three of the mutations in the BRCA1 and BRCA2 genes. For $99 women can test for these three mutations, without having an expensive full test ordered by their doctors.

      There is a growing community of “health hackers” and hobbyists who use consumer-grade electronics to generate large amounts of data about their wellbeing. The most visible of these is the Quantified Self community.  But most doctors and nurses don’t want to, don’t know how to – or aren’t allowed to – work with such data.  So Jolie’s circumstances are privileged in several ways.  She could afford non-standard tests.  And, she could afford a level of care with medical professionals willing and able to work with such data.

      The distinction here is that the information is going to “consumers,” provided by 23andMe without any medical expertise, advice or recommended clinical actions. Such tests provide information – about ancestry, about risk factors – but not the kind of data that is currently used by doctors to make medical decisions. These tests are paid for out-of-pocket and are marketed as being for wellness and curiosity’s sake, and not for informing health decisions. In fact, it would be illegal and unethical for 23andme to provide medical advice. They provide instead simply data, which science and technology studies scholars know is never simple. In exchange for the reduced price for the data, 23andme’s business model is to pool the data from many consumers into a research class that may provide new “big data” insights into genetics research. Their hope is a technological one that echoes Linus’s Law on crowd-sourced code-testing: with enough eyes, all mutations are shallow. As it is stated on the 23andme website: “Our research is driven by our community. A big thank you to our customers who make our research possible.”

      Yet who might financially benefit from this research by a for-profit company is not made clear. The genetics information of 23andme customers is not protected as health information, and therefore not subject to the stricter HIPAA regulations on patient-information privacy. It is considered an asset of the venture-backed startup company in part because people consent to participate in 23andme’s research as part of its terms of service. Meanwhile, people using direct-to-consumer tests like these still need to figure out what to do with the information they are buying, how (or if) to talk to their doctors about it, and how it fits into decision their own making.

      That brings us back to Angelina’s breasts. One good thing about her op-ed is that she recognized her own privilege. Preventative mastectomies based on genetics testing is still not a standard practice, and her particular case is very rare.  But Jolie has had access to care above and beyond the recommended standards and the money to afford it.  More than that, she was able to navigate the information fault lines between health data of medical professionals and direct-to-consumer wellness data. She was able to buy, so to speak, access to her own data for her own decision making without sacrificing her privacy in exchange for it. We should all be so lucky.

      -Contributed by ,  University of Washington Department of Communication-

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      Who Owns the Future? Not the Middle Class May 17, 2013

      Jaron Lanier, in the latest contribution to the public conversation about how we live with technology, blames the Internet for the fall of the middle class.  Only the problem is he’s wrong.

      In his new book Who Owns the Future? Lanier argues that the information economy in general and network technologies in particular are to blame for the plight of the middle class. I haven’t read the entire book yet (that will have to wait until after my team puts in our proposal to NSF’s Smart and Connected Health). I suspect I will agree the political spirit of much of what Lanier writes, but on this point I have to push back now, even at the risk of missing the subtlety of his full argument.  We probably agree on many points, but this one is crucial to tease out because of its political implications.

      In Venture Labor I traced why seemingly rational, well-educated young people rushed to be a part of the first wave of dot-coms in the 1990s and early 2000s. My point was the entrepreneurial spirit of the dot-com era was a response to growing job insecurity, not the cause of it. Young graduates of the 1990s found that risky Internet startups offered the best options in an economy that increasingly felt (and was) closed off to them.  They acted as “venture labor,” risking layoffs in the hopes of a future stock payout because they had, relatively speaking, few other choices. In other words, the death of middle-class job security is probably one of the reasons that Internet startup culture flourished.

      Technology itself was not the cause for the disruption in the U.S. labor market that limited entry-level jobs and made work in general less secure and more contingent. Tech giants Kodak and IBM once offered stable long-term careers with the best benefits in America. The layoffs there and elsewhere that reshaped corporate America and eliminated hundreds of thousands of middle-class jobs began before there was even a commercial World Wide Web. The blustery rhetoric of Internet innovation saving a tired, weakened American economy was not possible without the tropes and metaphors that Ronald Reagan introduced into political speech in the 1980s. The challenges the middle class faced then and continue to struggle with are not the result of technological change but broad economic and political shifts that began well before html. Tom Streeter has called the spirit of the dot-com era “Romantic“ (as in Henry David Thoreau, not Match.com; a dialogue on Streeter’s book edited by yours truly is here). The romantic individualism that pervades the culture of the Internet means that that these responses to economic change were talked about in terms of rugged individualism and self-fulfillment, not in terms collective or social. That’s not accidental. A generation of layoffs, political rhetoric about the virtues of good ol’ American risk-taking, fatally weakened labor unions, and permanently slowed job growth. In other words, social responses to economic problems lost traction and a cultural vision of rugged individualism and entrepreneurial pluck saving the economy won.

      This brings us back to the point of Lanier’s book. We have many reasons to be politically suspicious of Big Data and Moore’s Law. But hanging the collapse of middle class wages on these phenomena, as Lanier does, hides the fact that the problem has been with us longer than the Internet has. Take this passage from Lanier in an interview in Salon with the very smart Scott Timberg who writes on jobs in cultural industries:

      The way society actually works is there’s some mechanism of basic stability so that the majority of people can outspend the elite so we can have a democracy. That’s the thing we’re destroying, and that’s really the thing I’m hoping to preserve. So we can look at musicians and artists and journalists as the canaries in the coal mine, and is this the precedent that we want to follow for our doctors and lawyers and nurses and everybody else? Because technology will get to everybody eventually.

      In the book, Lanier writes that because “Networks need a great number of people to participate in them to generate significant value. But then, when you have them only a small number of people get paid. That has the net effect of centralizing wealth and limiting overall economic growth” (p 2).

      I applaud Lanier for pointing us to the woes of the economy as a dark side of the Silicon economy. But his blame for it on technology is very much misplaced. As Janet Maslin pointed out in her New York Times review of Who Owns the Future?, the book “may not provide many answers, but it does articulate a desperate need for them.” I, for one, am glad to see we’re finally talking about them.

       This was originally posted at Freedom to Tinker. Many thanks for permission to cross-post.

      -Contributed by ,  University of Washington Department of Communication-

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      Big Data and journalism: a call for papers May 16, 2013

      rdij20.v001.i01.coverBig Data, in the broadest sense, has become a rich site of research interest across the scholarly disciplines. I’m happy to share with the Culture Digitally community this call for papers for a special issue of Digital Journalism that I’m editing around the subject of Big Data and journalism. Questions? Drop them in the comments or send them to sclewis@umn.edu. Thanks!

       

      Journalism in an Era of Big Data

      Deadlines: July 1, 2013 (abstracts); January 1, 2014 (full papers for peer review); June 1, 2014 (revised full papers due)

      Guest Editor: Seth C. Lewis of the University of Minnesota, USA (Digital Journalism Editor: Bob Franklin)

      The term “Big Data” is often invoked to describe the overwhelming volume of information produced by and about human activity, made possible by the growing ubiquity of mobile devices, tracking tools, always-on sensors, and cheap computing storage. In combination with technological advances that facilitate the easy organizing, analyzing, and visualizing of such data streams, Big Data represents a social, cultural, and technological phenomenon with potentially major import for public knowledge and news information. How is journalism, like other social institutions, responding to this data abundance? What are the implications of Big Data for journalism’s norms, routines, and ethics? For its modes of production, distribution, and audience reception? For its business models and organizational arrangements? And for the overall sociology and epistemology of news in democratic society?

      This special issue of the international journal Digital Journalism (Routledge, Taylor & Francis) brings together scholarly work that critically examines the evolving nature of journalism in an era of Big Data. This issue aims to explore a range of phenomena at the junction between journalism and the social, computer, and information sciences—including the contexts and practices around news-related algorithms, applications, sophisticated mapping, real-time analytics, automated information services, dynamic visualizations, and other computational approaches that rely on massive data sets and their maintenance. This special issue seeks not simply to describe these tools and their application in journalism, but rather to develop what C. W. Anderson (2012) calls a “sociological approach to computational journalism”—a frame of reference that acknowledges the trade-offs, embedded values, and power dynamics associated with technological change. This special issue thus encourages a range of critical engagements with the problems as well as opportunities associated with data and journalism.

      The special issue welcomes articles drawing on a variety of theoretical and methodological approaches, with a preference for empirically driven or conceptually rich accounts. These papers might touch on a range of themes, including but not limited to the following:

      • The history (or histories) of computational forms of journalism;
      • The epistemological ramifications of “data” in contemporary newswork;
      • Norms, routines, and values associated with emerging forms of data-driven journalism, such as data visualizations, news applications, interactives, and alternative forms of storytelling;
      • The sociology of new actors connected to computational forms of journalism, within and beyond newsrooms (e.g., news application teams, programmer-journalists, tech entrepreneurs, web developers, and hackers);
      • The social, cultural, and technological roles of algorithms, automation, real-time analytics, and other forms of mechanization in contemporary newswork, and the implications of such for journalistic roles and routines;
      • The ethics of journalism in the context of Big Data;
      • The business, managerial, economic, and other labor-related issues associated with data-centric forms of newswork;
      • Approaches for conceptualizing the distinct nature of emerging journalisms (e.g., computational journalism, data journalism, algorithmic journalism, and programmer journalism);
      • The blurring boundaries between “news” and other types of information, and the role of Big Data and its related implications in that process

      Articles should be no more than 8,000 words in length, including references, etc. Please submit an abstract of 600-800 words that clearly spells out the theoretical construct, research questions, and methods that will be used. Also include the names, titles, and contact information for 2-3 suggested reviewers. Abstracts are due by July 1, 2013, to sclewis@umn.edu (with “DJ special issue” in the subject line). Providing the abstract meets the criteria for the call, full manuscripts are due by January 1, 2014, at which point they will be peer-reviewed and considered for acceptance. The proposed date of publication is 2015. Please contact guest editor Seth Lewis with questions: sclewis@umn.edu. Manuscripts should conform to the guidelines for Digital Journalism.

      [Cross-posted from sethlewis.org]

      -Contributed by ,  University of Minnesota School of Journalism & Mass Communication-

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      Podcast: Hector Postigo’s Digital Rights Movement May 13, 2013

      The Virtual Policy Network Logo The Virtual Policy Network interviewed Hector Postigo about his recent book Digital Rights Movement.
      You can listen to the show here: SCT 13: The Digital Rights Movement

      -Contributed by ,  Postdoctoral fellow in New Media at Lawrence University-

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