Twitch Plays Pokemon: Questioning Intellectual Property, Creativity and the Public Performance of Play

As a bookend to the podcast that T.L. Taylor and Greg Lastowka were kind enough to participate in, I’m posting this bit of thinking on the legal issues that continue to plague those of us thinking about cultural production in the digital age.   It’s also a bit of an emerging dialogue.   See Greg Lastowka’s thoughts below.

Hector Postigo: Recently Greg Lastowka linked the article, “This Guy Makes Millions Playing Video Games,” from the Atlantic Monthly via his FB page.  Because I’m trying to finish writing my next book on YouTube and Video Gameplay, I was happy to see that recording gameplay and posting it on YouTube as an entrepreneurial venture for video gamers was getting some media attention.  Greg’s post started a related discussion about how digital copyright might map onto the practices in digital culture that converge a number of technologies, media and laws.  It made me think of Twitch Plays Pokemon.


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I found this case thanks to one of my students in my video game studies class. When I was at Virginia Tech for the Intellectual Property in the Digital Age Forum, where we discussed digital copyright and its impact on creativity, we talked a little bit about Twitch Plays Pokemon over dinner.  Some of us couldn’t decide where copyright infringement liability may lie in the case of Twitch, or even if there was an infringement claim to be made.   In Twitch Plays Pokemon, a user has modified the chat interface to work with his inputs of his Pokemon game.  Viewers on his Twitch channel can control the gameplay via chat.  What has emerged is a massively played, live webcast of, at times, 50 thousand or so viewers playing the game through chat commands.

I think the questions in the Pokemon example that get to the copyright problem are:

1.  Did that streamer on twitch circumvent access or copy protection encryption algorithms to afford the chat mediated play?  2. Does a modification to browser chat and input/output interfaces on the game or game console or PC constitute circumvention? 3. Is the stream of an unauthorized public performance an infringing broadcast? 4.  Could a reasonable argument be made that 50 thousand people playing the game is transformative, making public performance and derivative works claims weak?

The convergence question is also at play (pun intended) in this case.  A number of media and technologies are orbiting the practice of broadcasting gameplay.  The game consoles, the web, and the games themselves.  A host of techno-practices and life worlds converge through the synergies afforded by a chat interface hack that lets thousands play a game they don’t necessarily own: web surfing, video gameplay, online chat, broadcast and digital media entrepreneurship.   The reality that all these converge on proprietary platforms leave us with the political economy questions that have been orbiting our research for sometime.  How is value generated, captured and extracted?  Where does hobby end and work begin?  How should the value and profit generated across media platforms and genres be properly distributed so that incentives and creativity continue to be fostered?  Questions that I’m still sorting out in my writing but thankful to have our community to share with. Thanks go to Elizabeth Stark, Saul Halfon, Greg Lastoka (linked above), Alex Leavitt, TL Taylor (also linked above), Bruce Boyden, Ren Reynolds and Sal Humphreys for having these discussions over social media or over a meal.  Nothing beats a good dose of collaborative thinking about collaborative play.

Greg Lastowka: In response to #1 & #2, I’m figuring there *had* to be some TPM on there sufficient to create a 1201 violation, right? (Haven’t looked into the architecture.)
On #3 & #4, I was thinking about the fair use question — my first instinct was that Twitch isn’t radically different than Taito but, after a second of thinking, I realized it probably is a very different question. It’s all about how the use is carried out and toward what end. Twitch is a strange form of use. By analogy, what if Twitch sang the songs from Disney’s The Little Mermaid or performed Death of a Salesman? That’s not the same as a “standard” performance of either work — so I think the case for fair use is stronger when the Twitchers all play.

The derivative work claim seems pretty strong in the absence of fair use.

Other Qs: potentially severable copyright in the Pokemon characters? TM
concerns about them too? and what about copies of the software code to
create the thing in the first place? There is certainly a lot going on here.