This leaves authors of works which do not qualify for these categories to seek out alternative methods of enforcing their moral rights, such as through the use of contracts and state laws. [3] An indie video game studio has recently opted to use the Digital Rights Millennium Act (“DMCA”) to champion their moral rights claim. [4]

“Let’s Play” videos involve people prerecording or livestreaming themselves playing video games so that audiences can experience their reactions and commentary as they play. The occupation is both popular and highly lucrative, with its most popular streamer, Felix Kjellberg (known as “PewDiePie”), having over 57 million subscribers.[5] The videos are generally hosted on YouTube or Twitch.tv, a live-game streaming site, and can include hours of video game content being shown online. Sometimes this can feature the experience of playing an entire video game from beginning to end. It is not hard to imagine that if this same act was replicated on other forms of entertainment media—for example, the streaming of an entire movie with commentary—then it would quickly fall victim to a DMCA takedown. But video games have never operated the same way as movies or music.

There is a tacit understanding between Let’s Play video makers and video game developers; the owners of the copyrighted work ignore the potential infringement of their copyright in turn for the free publicity that the videos generate for their games. Camp Santo, for example, loved that “people stream and share their experiences in the game.” [6] They loved it, that is, until they requested a DMCA takedown for a video of PewDiePie playing their video game, Firewatch.

DMCA allows holders of intellectual property to request takedowns from service providers. [7] It is the hated, red-headed stepchild of the internet, especially in the gaming community,  where  it  is  seen  as  a  mechanism  for  blocking  out  competition  and  censoring criticism.[8] Camp Santo wasn’t attempting to curtail a negative review. They simply did not want their game featured on PewDiePie’s channel. Their problem with PewDiePie? His casual use of Nazi jokes and racial slurs.

A little while ago, the YouTuber paid Indian actors to hold up signs that read “Death to All the Jews”. The stunt cost him his partnership with Disney’s Maker Studio, YouTube and Google’s Preferred ads. [9] He followed that up with the use of the n-word in another one of his live-stream videos. Neither one of these offending videos featured Camp Santo’s work. Nevertheless, Camp Santo did not want their brand and their work associated with PewDiePie. Camp Santo believed that by allowing their content to be featured on PewDiePie’s channel they were implying a tacit endorsement of his behavior, thereby tarnishing their reputation. Under the Canadian Copyright Act [10], prejudice to Camp Santo’s reputation, as the author of a work associated with PewDiePie, would constitute infringement of Camp Santo’s moral rights. In the U.S. the ambit of moral rights protection is limited to selected works which do not include video games. Google, YouTube and Disney had partnerships they could terminate, and contracts they could fall back on. Camp Santo had only the DMCA to dissociate their work from PewDiePie.

The DMCA is not a panacea to moral rights problems for works existing online. A major problem with using DMCA is the issue of the fair use exception US law. [11] Let’s Play video makers insist that their commentary makes their work a product of fair use. Since the matter has never been taken to Court, it is an undetermined area of law. Here, once Camp Santo requested the takedown, PewDiePie removed the video and it was later deleted by Google. Therefore, it remains to be seen whether this novel way of protecting moral rights may have any further use in the realm of video games.

Tina Mirzaei is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

[1] 17 USC § 106A.

[2] 17 USC § 101.

[3] Greg J Yonover, “The Precarious Balance: Moral Rights, Parody and Fair Use” (1996) 14:79 Cardozo Arts & Entert LJ 79 at 94.

[4] Jonathan Ore. “Is Playing Video Games on YouTube a Copyright Infringement? No One Wants to Find Out”, CBC News (October 7, 2017), online: < 1.4309312>

��5����Ibid, Note 4.

[6] Kyle Orland, “Firewatch Dev Uses DMCA Against PewDiePie After Streamed Racial Slur”, arsTECHNICA (September  11,  2017),  online:    <https://arstechnica.com/gaming/2017/09/firewatch-dev-uses-dmca-against-

pewdiepie-after-streamed-racial-slur/>

[7] 17 USC § 1201.

[8] Sebastian C Mejia, “Fair Play: Copyright Issues and Fair Use in YouTube’s ‘Let’s Play’ and Video Game Livestreams” (2013) 1 at 5. Online: <>

��9����Supra, Note 4.

[10] See section 28.2(1) of the Canada Copyright Act RSC 1985, c. C-42.

[11] See 17 USC § 107 and 1201(c)(1).

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First, understanding the subject matter. My research topic was about a specific process that overlaps with artificial intelligence and which may lead to potential copyright infringement. My objective was to understand what the issues were and determine if there needed to be an exception in the Copyright Act for it - because you can’t recommend a law or an exception for something you do not understand. To assist in this objective, I was put in touch with people who could teach me more about AI, the surrounding issues around it, and areas I should look into. I was also encouraged to reach out to my own network and even sat through several online class sessions on AI until I understood the process itself and potential areas for copyright infringement.

Then, applying copyright law. You have to understand the statute and the relevant case law if your application of the law is going to have any true value. You may have taken Copyright in your law classes, but no exam will give you the understanding that applying the rules to a specific topic will provide. You engage with the rules on a new level, trying to fit them against your understanding of the law and the subject matter.

Finally, considering policy. Most law students dread the policy question on the exam; the “suggested” twenty minutes are reduced to ten minutes of smashing keys and stringing nonsensical sentences together. What is the point of it? we ask. It is the whole point of it. Laws are based in policy. You don’t fully understand the depth and breadth of this until you are weighing your own policy considerations and trying to determine how to work the arithmetic. Sometimes, there are no optimal results: Vague laws are not there to torment law students, but because a vague law left to the interpretation of the courts is sometimes superior to no law at all.

A few things I learned in the process: think about your stakeholders. Not just the obvious ones, but all the ones who may be affected, and think about them in specifics. Replace the vague “creator” with things like: “Jessie, 23 years old writer based in Toronto. She worries about how services like Scribd may damage her prospects in being discovered by readers. She also wonders how she would be able to compete in the global market.” It’s a hypothetical but it makes for richer discourse than vague generalities. Also, there is a difference between balance in statutory interpretation and balance when creating laws. If you have taken Copyright, you have no doubt studied �ճ�è��������� and the “balance” that it formally injected into our copyright regime; as in, the balance between the public interest and owner rights. It is an important consideration in policy-making, but it’s not the only consideration. You learn to be cognizant of that too, during your research project.

My research was my main project throughout the term, but the branch ensured I remained involved in other areas as well. We had weekly meetings where we discussed important projects coming up and interesting copyright-related news and developments. I had the opportunity to attend a Copyright Board hearing and a branch retreat that delved into both immediate and long-term issues and considerations. I was engaged in long debates and discussions about different copyright matters, some fueled by calls from the public and some the natural result of a group of people passionate about the same topic.

Overall, the experience has changed how I view my long-term career goals. Not only have I found a new respect for policy, I also plan to develop further expertise in artificial intelligence. I repeat my earlier statement with a small amendment: if you’re interested in copyright or policy at all, there is no better place for you.

Tina Mirzaei is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program. As part of the program requirements, students were asked to write a reflective blog on their internship experience.

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