SOPA/PROTECT IP Would Be Hideously Bad For Video Gamers

from the our-rights-are-not-a-game dept

Wed, Nov 16th 2011 12:40am — Jennifer Mercurio

Jennifer Mercurio is the Vice President and General Counsel of the Entertainment Consumers Association (ECA), the nonprofit membership organization which represents gamers in the U.S. and Canada.

If a pair of bills on Capitol Hill, called the Stop Online Piracy Act (SOPA) and PROTECT IP, pass, you could be fined and thrown in jail for streaming (i.e., "performing") your video game speed runs or game play. Just as people post cute pictures and videos of themselves, their pets and their kids singing and dancing to copyrighted works, gamers of all ages routinely post pics and stream video of themselves during game play. All of these things have, for the most part, been considered "fair use" under the law. Tens of thousands of videos currently available online featuring game play from popular games like Call of Duty, Halo, Starcraft and others could be made illegal under these laws.

Since games also rely on the unique and fresh content that gamers create structurally and within game play, SOPA/PROTECT IP would freeze such innovation. Creative new works developed out of the technology of video games could be stifled by these new laws. Machinima, or videos created using in-game tools such as in Red vs. Blue, may never have come about if SOPA/PROTECT IP were in place.

There are also serious "due process" issues with SOPA/PROTECT IP.

Under constitutional due process, if the government prosecutes you, you must have the ability to defend yourself before being penalized; and the prosecution and governing board must be a government body, not a private company such as YouTube, or a ratings entity like the Entertainment Software Rating Board (ESRB). The Digital Millennium Copyright Act (DMCA) presently mandates that a take-down notice regarding potential infringement must first be sent to the Internet service provider or host, which then must comply, if it wants to retain its so-called "safe harbor" protection. However, the alleged infringer can then send a counter-notice stating basically, "no we're not infringing, here is why." Under the current safe harbor provisions, the service provider is then required to put the material in question back up in 10 days if there is no further action taken on the part of the content owner.

Here, SOPA/PROTECT IP forgo even this slight due process. These bills lack the provisions requiring the providers to put the material back up following a counter notice. Instead, the incentives are for service providers to keep the content down. Furthermore, a court order via a judge could require payment processors and ad networks to cut off service, before sites are convicted of any wrong-doing. The accused would then need to defend themselves. In other words, the impact of the bill is that they are found guilty before their day in court.

The legislation would also allow Internet companies hosting the content to arbitrarily set standards regarding various classes of works and amateur performers and demand removal of content or petition the government to outright block access to websites, creating an Internet government-sanctioned blacklist.

Internet service providers (ISPs) that are part of a corporation which creates content, such as Comcast, could also then use these laws for anti-competitive practices, arbitrarily enforcing/not enforcing potential infringements of their content or their competitors. Where NBC and G4 could be weaponized and empowered... the potential for abuse is staggering.

SOPA/PROTECT IP would also strip the limited defense websites enjoyed under DMCA, and sites could be considered liable for the worst of the worst user, which means that they'd need to penalize all users to protect themselves. Since the bills allow actions against suspected sites, as opposed to just convicted sites, all Internet sites would need to chill the speech placed on them in order to avoid potentially crippling legal responses. Thus companies and sites like Justin.tv, Twitch.tv, Ustream.tv, Tumblr.com, Facebook, YouTube, Google+, Blogger and Wordpress, which used to be immune from prosecution for the content posted on them, would now need to monitor every communication, if they wanted to avoid liability. This will result in a chilling effect across the web.

Further, several experts have warned that the domain name system (DNS) filtering requirements of PROTECT IP would weaken Internet security and stability. The filtering provisions would not serve their goal of lowering piracy, but threaten the security and stability of the global DNS. Further, they would undermine the universality of domain names, which has been a backbone of how the Internet is navigated. The experts warn that many of the tools and stated goals of both the government and business related to prevention of cyber attacks and Internet security would be undermined by these bills.

SOPA/PROTECT IP also relies on copyright holders setting arbitrary standards regarding economic impact and prosecution for various classes of works and amateur performers. Since items posted to the Internet can be accessed immediately and universally, copyright holders could claim every post would be extremely costly.

These bills could impede or block constitutionally protected speech. This point is especially troublesome in the shadow of the great video games speech victory earlier this year, Brown v EMA, where the Supreme Court finally held video games to be such protected speech in their own right.

Since we already have laws covering this area on the books, it defies logic to further burden American consumers in these arbitrary and capricious ways. The ECA stands in opposition to these bills. To lend your voice, check out our free online tools, read more about the subjects or help us fight for our rights, visit: http://theeca.com/video_gamers_rights

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Filed Under: copyright, due process, protect ip, sopa, video games
Companies: eca

41 Comments

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Anonymous Coward, 16 Nov 2011 @ 1:07am

inb4 OMG MIKE you asswipe spreading FUD LOL u sound so desperate broadbrush this that you dont matter STOP LYING LOL U R TOTALLY OVERREACTING .ETC ETC
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Anonymous Coward, 16 Nov 2011 @ 1:12am

jeez, you people are shameless. wow.

If putting your gamecaps on youtube is legal now under fair use,

SPELL OUT EXACTLY how it won't be under SOPA.

And don't bother with the now debunked Justin Bieber angle.

Otherwise, you're just fear-mongering, which is what the rest of your opinion piece was.
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techflaws.org (profile), 16 Nov 2011 @ 1:34am

Re:
So they are learning from shilltards like you. So what?
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Anonymous Coward, 16 Nov 2011 @ 1:49am

Desperation...
Can you all feel it? The trolls/shills are no longer just doing the 9 to 5. They're out in full force and growing in numbers as the opposition grows to this dreadful piece of legislation. The MAFIAA must be hiring unemployed recruits to work out of mom's basement 'round the clock, googling anything SOPA related to go on the attack.

It's pathetic really. They grow more insulting and vulgar every day and do nothing to rally support. I see it as a Red Flag of desperation because it's a shit piece of legislation they so desperately want, though in the end, even if it gets the votes, it will be challenged in court all the way to the Supreme Court and get thrown out on Constitutional grounds.
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Rikuo (profile), 16 Nov 2011 @ 1:54am

Re:
"SOPA/PROTECT IP would also strip the limited defense websites enjoyed under DMCA, and sites could be considered liable for the worst of the worst user, which means that they'd need to penalize all users to protect themselves. Since the bills allow actions against suspected sites, as opposed to just convicted sites, all Internet sites would need to chill the speech placed on them in order to avoid potentially crippling legal responses. Thus companies and sites like Justin.tv, Twitch.tv, Ustream.tv, Tumblr.com, Facebook, YouTube, Google+, Blogger and Wordpress, which used to be immune from prosecution for the content posted on them, would now need to monitor every communication, if they wanted to avoid liability. This will result in a chilling effect across the web. "

That's from the article. The article you didn't read. The article that for some reason you think didn't spell it out.
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Anonymous Coward, 16 Nov 2011 @ 2:06am

If a pair of bills on Capitol Hill, called the Stop Online Piracy Act (SOPA) and PROTECT IP, pass,

They'll probably both pass. None of these politicians are going to change their minds; you can't change your mind if you don't have one in the first place.

Frankly, I think digital society at large would be better off if they stopped wasting their time trying to help the US government understand modern social norms and just went straight to doing end runs around the impending censorship, preferably rendering it ineffective before it's even implemented (for maximum lulz).

I mean, they're going to do that anyway, but why not get a head start?
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Anonymous Coward, 16 Nov 2011 @ 2:06am

Re:
he didn't say it would automagically become illegal, he's saying that with no oversight, for example, microsoft could blast any site hosting red v blue content with takedowns, thereby driving all traffic for it to its own "legitimate" channels. Possibly not including the video creators own site.
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Anonymous Coward, 16 Nov 2011 @ 2:07am

Re: Desperation...
"The MAFIAA must be hiring unemployed recruits to work out of mom's basement 'round the clock, googling anything SOPA related to go on the attack."

Ha! So SOPA is actually creating new jobs, instead of destroying them!

Another piece of FUDtastic FUD debunked

/yes, this is sarcasm
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A Guy (profile), 16 Nov 2011 @ 2:10am

Re: Re: Desperation...
FUDtastic... I like it
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AG Wright (profile), 16 Nov 2011 @ 2:16am

Strident haters
It seems to me that the haters are coming out of the woodwork, they have less to say, less logic in their statements and more vitriol.
Of course they aren't going to read this, just post how Mike is a freetard, a thief and a pirate.
There is no content to such posts and whoever is paying them to do it should dock their pay.
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Liz (profile), 16 Nov 2011 @ 2:24am

Re:
SPELL OUT EXACTLY how it won't be under SOPA.

Any video that features in-game music, audio, visual effects, characters, themes, or any other associated bit and byte falls under the parent company's copyrights.

It's even worse when those games that utilize licensed music and software from OTHER companies. Music games like Guitar Hero and Rock Band series fall under both the copyrights of both the RIAA and the Software Industry.

Madden NFL, FIFA Soccer, 2KSports titles that cover Major League Baseball and National Basketball League, all use licensed material, voices and images of professional announcers and players. As well as trademarked logos - in an arena that's already heavily over protective of it's imagery.

DC Universe Online, Green Lantern, Batman: Arkham Asylum and Arkham City, Spider-Man: Shattered Dimensions, Marvel vs. Capcom games all tie into both Marvel Comics (now a subsidiary of Disney) and DC Comics (owned by Warner Bros.) are also licensed by different software developers.

Lord of the Rings, Alien vs Predator, Harry Potter, Pirates of the Caribbean, Indiana Jones, Star Wars, Transformers, The Fast and the Furious and a host of other movie tie-ins are another set of games have a multitude of cross over copyrights.

With so much of a briar patch of copyright and trademark involved, ANY ONE of those entities could file a complaint to have a site taken down. Not just the video. The ENTIRE WEBSITE! So to avoid just the risk of being shut down, internet hosts like Youtube, Vimeo and others will have to block access to users in general. Because that is what companies do. They do what they can to avoid litigation.

ON TOP OF THAT! There are executives in the Entertainment Industry (this includes music, movie, literary, and video game industries) who claim that there is no such thing as "Fair Use."

While a user broadcasting their romp through a virtual world might be seen as fair use. Or a reviewer panning a particularly terrible game (ahem... Duke Nukem) might be covered under Fair Use, it doesn't stop a 'concerned party' from filing a complaint against a website where the entire burden is on the ISPs and web hosts to prove their innocence.

In this regard, SOPA violates the 1st (Free Speech), 4th (Search and Seizure), and 14th (Due Process) Amendments of the U.S. Constitution.
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Politician 201, 16 Nov 2011 @ 3:11am

Re:
Change my mind? And return all those juicy br... I mean campaign contributions?

Also, I have grown fond of Candy and Ruby, my MAFIAA er... liasons.
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Anonymous Coward, 16 Nov 2011 @ 3:14am

பவன
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Blatant Coward (profile), 16 Nov 2011 @ 3:51am

Lets not forget the lack of DMCA protection will let the game makers themselves come under fire when a player make a character named/resembling "SPIDERMAN~TROLL".

Failure to take action to prevent.

Chilling indeed.
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Michael, 16 Nov 2011 @ 4:02am

If it passes
The government isn't the only entity that can shut down websites. I say we just bring the whole thing to a grinding halt. When the money starts drying up they will pay attention.
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Anonymous Coward, 16 Nov 2011 @ 5:28am

What about video game service, ON LIVE?
The entire basis for the service is that you rent/buy a game, and the game is played on remote servers and the audio/video is streamed over the internet to your television. The entire game is being streamed over the internet to your TV.

While I despise/loathe On Live, because not only does it takes the physical copy away from you, it also takes the digital copy away from you (so you really don't "own" jack shit). If the service disappears your out of a game (or multiples).

Even still, I think the entire idea is quite innovative. It means no one ever has to worry about upgrading their pcs, or buying a really expensive console.
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Anonymous Coward, 16 Nov 2011 @ 5:59am

Think about the children! What will they watch if you can't pirate stuff?

THINK ABOUT THE CHILDREN!
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Anonymous Coward, 16 Nov 2011 @ 6:14am

op is a fag
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Anonymous Coward, 16 Nov 2011 @ 6:20am

Re:
You're completely glossing over the fact that 'fair use' is an affirmative defense that can only be confirmed with a trial. The bill clearly creates a period between accusation and verdict that is very harsh to the accused so the ultimate legality is irrelevant to the affects. By creating broad liability for third parties before a trial is ever begun any form of 'fair use' is going to be discouraged as it invites this liability, and this is the important part that you are missing, even if the use turns out to be fair. It's not a question of what is and is not legal, it's a question of what damage will be done before what is and is not legal is properly decided by a court of law.
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worth, 16 Nov 2011 @ 7:23am

violation
This is a violation of the us antitrust law by limiting competition between websites like youtube, tumblr, and twitter. WARNING to lawmakers: DON'T MAKE THE INTERNET ANGRY! if this law passes it will be like COMMUNIST CHINA with internet censorship!
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Hephaestus (profile), 16 Nov 2011 @ 7:24am

Re: Re: Re: Desperation...
You gave me a great name for an album ...

Shilling with the FUDtastics
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Anonymous Coward, 16 Nov 2011 @ 7:50am

Re:
fuck you
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Anonymous Coward, 16 Nov 2011 @ 7:55am

Re: Re:
Rikou, the article is opinion, not fact.

There is no indication, none at all, that these sites would be at risk, especially not if they take reasonable steps to keep their sites legal.

The sites you list are currently immune from prosecution for the content posted on them, and many of them have built their businesses on grifting content and then saying "oops, sorry" when they get caught.

Sites that permit anonymous users to upload files without restriction and without checking the content should be liable, they are taking a huge risk and facilitating illegal behaviour. Only the safe harbor protections of DMCA have kept them from eating it legally, and soon those will no longer apply.

Times change, they need new business models to stay in business.

The only chilling effect is on illegal, non-protected speech. I don't see an issue, and I doubt the courts will either.
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Anonymous Coward, 16 Nov 2011 @ 7:56am

Re: Desperation...
Can you all feel it? Mike Masnick and co are longer just doing the 9 to 5. They're out in full force and growing in numbers as they astroturf opposition to this useful piece of legislation.

FTFY.
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Silver Fang (profile), 16 Nov 2011 @ 8:35am

Game Playthroughs
So if this were to pass, would all the videos I've posted of my UT2004 playthroughs suddenly be removed from YouTube, or would Epic and Atari have to pitch a bitch first?
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Anonymous Coward, 16 Nov 2011 @ 9:14am

Re: Re: Desperation...
Copying is so uncreative. Why do you have to be so uncreative? I can't wait for it to be illegal to copy in the future.
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Jay (profile), 16 Nov 2011 @ 9:26am

Re: Re: Re:
There is no indication, none at all, that these sites would be at risk, especially not if they take reasonable steps to keep their sites legal.

Actually, there is. The UFC has been trying to litigate against Justin.tv for streams for a while now. They've been very aggressive in IP enforcement and would use this legislation as soon as it's feasible.
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Greg G, 16 Nov 2011 @ 10:10am

Re:
Hey, delta alpha.. Mike didn't write the article....
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Michael, 16 Nov 2011 @ 4:42pm

Protect the internet
hey guys check this out like/subscribe to help spread the word!

https://www.facebook.com/pages/Protect-the-Internet/111439158971236
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Jeffrey Nonken (profile), 16 Nov 2011 @ 4:57pm

Re: Re:
It was a fake troll. I expect he did that on purpose.
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Jeffrey Nonken (profile), 16 Nov 2011 @ 5:02pm

Re: Re: Desperation...
Sorry, is AstroTurf this week's Trolling Watchword, or is it Strawman? I've lost track.
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Jeffrey Nonken (profile), 16 Nov 2011 @ 5:06pm

Re: Game Playthroughs
I think what would happen is that YouTube would start taking them all down proactively.
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samalander, 16 Nov 2011 @ 7:34pm

Please post the following on your facebooks:

THE INTERNET IS UNDER ATTACK. Fighting for our freedom: Facebook, Google, LinkedIn, Twitter, Yahoo!, Zynga, AOL, eBay, and Mozilla together issued a joint letter to congress today opposing the SOPA internet censorship bill. They say this is a fight for the future of the internet. REPOST THIS MESSAGE, I want to see you all repost this. Write congress here: http://americancensorship.org/ Proof is here: http://blog.mozilla.com/blog/2011/11/15/mozilla/
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duhast, 16 Nov 2011 @ 8:28pm

really?
the government is screwing themselves over if they think this will work they will loose alot more money in the long run and the entertainment industry will still be the same and people will always find ways around it you cant stop them fools!
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vic, 17 Nov 2011 @ 12:19pm

Re: Re: Re: Desperation...
"Imitate. Assimilate. Innovate." - Clark Terry, Jazz Trumpet Master
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hater, 18 Nov 2011 @ 2:23am

Re: Re: Re:
Awww... babywannacwyy?

The article have more facts than your ultra-biased whining. rofl!

This has NEVER been about copyright. The Church controlled the scribes. The king controlled the presses. The government controlled radio & TV. For the first time in history, information is FREE!! Something big corporations cant stand. Something that reduces publishers to nothing more than wallets. Making IPs liable for any information they pass along is the tactic whith which publishers are trying to turn Internet into Cable TV.

So... You can imagine how much I DONT care if the Rick Astleys of the world doesn't ever gets a single dime, ever again...
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Brand, 18 Nov 2011 @ 10:54am

Companies
So wait, wouldn't the companies that Publish the such video game have to make a claim before it is taken down and the uploader is punished? So if video game publishers don't want their online community to crumble, they won't claim anything, just like they do now! and the video game online community would be saved? Or at least the games that don't use music from the music industry or themes from movies. Is that how it works?
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joe, 10 Dec 2011 @ 1:25am

Re: Companies
Actually, anybody that had even a remote connection to the copyrights could make a claim. Text, music, artwork, scripts, and so on. It doesn't have to be the primary interest (game company). Think of patent trolling.
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the freak, 15 Jan 2012 @ 7:07pm

Microsoft
Would this bill be retroactive. Cause if it does then Bill Gates, Steve Jobs, Steve Wozniak, and the whole internet is going to jail because they all stole from each other. Ibm, Xerox, Tandy computers, Apple, Microsoft, Adobe, they all stole someone elses Intellectual property. Now these same idiots do not want anyone competing with them. Att stole from Ma bell in a chain succession as transfer was broken from the bell companies, the electric companies stole from Tesla, It goes on and on. Everytime someone steals something they want to keep others from doing the same. there is nothing new under the sun. Some way someone makes an invention or idea and someone else will have that same idea before or after them not ever knowing the person. How do you think the ancient civilizations made the same pyramids thousands of miles away. Yet we think we are arrogant enough to own anything. We own nothing and took everything from something else. No one has the right to own intelligence it is not theirs to own. You do not own things you think about first. How would we ever had any artwork. You think this will hurt the internet. these bills will spill over to the public within the first week of implementation. Any artwork made the same as another will be subject to fines or jail. Same goes for othere things. Inventions will grind to a hault. We can not make anything after these bills. Anyone will be the owner with a piece of paper and nothing new could be improved or gained of an existing product. So no more copy products and then no cheap things ever. Imports would have to stop as the things made like others could not be imported. think it out this is a total stop of a free society and a massive control by companies. the same companies you bailed out now want more money.
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Silver Fang, 15 Jan 2012 @ 7:24pm

Re: Microsoft
Exactly! Throughout history all art and innovation has come from copying and improving on something that came before. Shakespeare's Romeo and Juliet was derived from an Ancient Greek story called Pyramus and Thisbe. By modern standards, Willie would be a pirate instead of a playwright.

Human nature is to copy, remix and mashup anything and everything we sense. These bills that want to make it so people only publish things that are 100% their own fly right in the face of one of our most basic impulses and will be the death knell of creativity as we know it.
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Byron, 18 Jan 2012 @ 3:30am

Some games such as world of warcraft at least the mac client have a built in option to capture video of your gameplay. Video game companies want people post game footage, i doubt they would ever exersize this. Unless their was an nda in something like a beta but that is a whole different school of fish.
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