In case you haven't already heard, Atlus is using YouTube's copyright system against anyone who streams what it deems to be spoilers for just-released JRPG Persona 5. In a blog post a day ago, Atlus begged Persona 5 streamers to not broadcast anything from a certain point in the story onwards, and requested that they steer clear of specific plot points and story spoilers in general.
"Simply put, we don’t want the experience to be spoiled for people who haven’t played the game," the company wrote. "Our fans have waited years for the game to come out and we really want to make sure they can experience it fully as a totally new adventure… Please, PLEASE do not post any specific plot points or story spoilers, and only talk about the game in broad strokes. This being a Japanese title with a single-playthrough story means our masters in Japan are very wary about it."
Atlus then noted that the game cannot be streamed at all via the PlayStation 4's built-in software, and detailed what lay in store for those who ignored its requests. (It has since allowed the use PS4 share features, screen captures aside.)
However, it was the next part that got everyone's attention: "If you decide to stream past 7/7 (I HIGHLY RECOMMEND NOT DOING THIS, YOU HAVE BEEN WARNED), you do so at the risk of being issued a content ID claim or worse, a channel strike/account suspension," Atlus wrote. Yikes. Calmer, it continued: "That being said, Persona 5 is a super special case for us and we’re in ongoing discussion about how our policies may evolve in the future. Thanks for reading and good luck in the Metaverse."
The reason this raised more than a few eyebrows is: a YouTube account is allowed three copyright strikes before it is terminated and all its videos are removed. However, a single copyright strike can result in the user losing access to certain YouTube features including the ability to live stream, add custom video thumbnails, or set videos to "Unlisted" or "Private". In other words, copyright strikes are a total pain in the arse – especially if your job is to create videos about video games.
So naturally, Atlus's message annoyed a pile of streamers, made news everywhere, and brought the whole 'copyright versus streaming' debate back into the spotlight. As that rages, some people are completely ignoring Atlus and streaming the game anyway, while others have decided to cancel streams of the game in protest.
"Many of our viewers watch our stream after playing ahead in a game’s story, not only to see our reactions to major plot points, but to experience levels and plot choices through another person’s eyes," Video Games AWESOME!'s Fraser told Kotaku.
"Will they have as much trouble as I did on this boss? How will they react to this character’s death? When asked if they would watch our show instead of playing through their next most anticipated game title the resounding response from my audience is ‘Hell no!’ I refuse to promote a brand that can not recognise a fundamental evolution in the way video games are consumed and enjoyed."
It Me JP, who has 128K followers on YouTube, stopped playing for similar reasons. "I've decided to stop streaming Persona 5 due to Atlus's Japan draconian streaming guidelines they sent out yesterday afternoon," he wrote. "While I've been having an absolutely amazing time playing the game, I don't want to put myself at risk of DMCA, have my channel suspended for 24hrs with upcoming RollPlay shows coming up on Friday and Sunday, and set a precedent for future companies to not work with me because I break guidelines.
"If for whatever reason Atlus Japan decides to revoke their stance I'll go back to the game. Thanks to those who have watched my playthrough of it and I hope you come back to the channel in the future for other games."
Even other developers have been critical of Atlus's heavy-handed approach. Thimbleweed Park creator and industry icon Ron Gilbert told Gamasutra that seeing how people react to a game is one of the joys of game development, and that it doesn't take much for stream viewers to want to play for themselves.
"What you have when you’re doing streams is you want the streamer to do something in the game and then the people watching the stream going ‘oh no I think he should have done this,’" Gilbert said. "It’s a depth issue. If you’re [making] a linear narrative game, and it has enough depth to it, streaming becomes an advertisement for the game."
Can Atlus legally do this?
Generally speaking, game developers and publishers currently have the legal right to restrict streamers any way they wish. However, few bother, despite streaming platform systems automating copyright protection actions. Gameplay streams are generally seen as good marketing, and going after streamers tends to raise the ire of the internet.
The legal status of streaming is muddied somewhat because the bulk of the applicable laws in most countries were written prior to the rise of the streaming phenomenon, and there haven't been any big cases of streamers taking on companies – something that would set a precedent and evolve the law. However, it's far to say that in general terms, when evaluating a stream, a company's ownership of a game's copyright needs to be balanced against the doctrine of fair use.
Because video games require constant participation from a player in order to progress, they are distinct from things like books and films when it comes to copyright law. Therefore, it is sometimes argued by streamers that player input counts as "performance", and alters the work enough for fair use to be invoked. The stream becomes a unique piece of derivative work rather than a copy, and thus is protected under fair use.
More compelling is the argument that if a player adds commentary, music, and other production elements to a gameplay stream, the work is altered enough to easily fall within the realms of fair use. (As an aside, esports games have legal terms within their user agreements that allow them to be streamed without fear of copyright violation.)
Japan's no fan
Although Activision made press a while back for using copyright claims to remove Call of Duty exploit videos from YouTube, the main companies that have taken a hard-line stance to copyright in the past – Konami, Sega, Square Enix, and Atlus – all reside in Japan.
And one company that is infamously strict with gameplay videos is Nintendo, which decided to issue copyright strikes on YouTube Let's Play videos a few years ago. After fan backlash, the company chose to instead monetise said videos for themselves, which led cash-deprived streamers to shy away from covering Nintendo games.
Alongside most other game companies at the other end of the spectrum is Telltale Games, a fact that could be viewed as somewhat surprising given Telltale creates episodic games that can easily be streamed wholesale in a single two hour session. However, the company not only allows streams and full playthroughs to be published on the net, it appears to be a fan.
To wit: a new Crowd Play mechanic launched in the company's Batman: The Telltale Series titles allows multiple players to vote on decisions in the game via any internet-ready device. The company advises Crowd Play be used with up to 12 players all gathered around one screen, but Telltale is working with all streaming services to eliminate latency, so Crowd Play could one day come to services like Twitch.
And it's no surprise that Twitch itself is working with developers to make games specifically for the purpose of live-streaming. The streaming platform's "Stream First" programme gives developers assistance building streaming into their games and adding interactive features for online audiences. These features can allows viewers to change the rules of a game or the way it looks, sponsor opponents of the broadcaster, or play minigames that affect the main game, for example.
Similarly, Microsoft's just-launched Beam streaming technology is centred around audience interactivity, allowing viewers to directly affect streamed gameplay, or even do things like remotely control items in a streamer's house. "One of our streamers enables viewers to control robotic vehicles driving around the streamer’s room," Xbox wrote. "Sometimes he attaches balloons and needles to the robots, which allows the audience to make the robots joust by attempting to pop the other robot’s balloon. It’s pretty awesome."
It's pretty clear that spoilers are not all of what is on Atlus's mind when it threatens copyright strikes. There is little doubt that it is afraid that people will watch full streams of the game – a linear, story heavy affair – rather than buy it for themselves. It's impossible to know for sure whether this would indeed be the case, but my guess is that streams of a game that's sitting at 94 on OpenCritic are nothing but a great advertisement for it, and few people will prefer to watch rather than play it anyway. In fact, it seems likely that some people will watch a stream of Persona 5 and be swayed into buying it for themselves.
I also reckon that most people watch streams to hang (in a virtual sense) with their favourite streamers, and to see how they react to a game. I catch very few streams, but the ones I do watch are from people who seem cool enough to hang out with in real life. There is no sale being lost there. And although 'no commentary' playthroughs are popular, I can't help but feel that most people watch bits of those simply to get an idea of what a game is like. That, or they were never going to buy it anyway.
There's also the fact that whatever your intentions, if you treat your customers poorly, they will act poorly, or simply go elsewhere. Two extreme examples: Microsoft is still feeling the repercussions of its Xbox One launch debacle, while CD Projekt Red has garnered a fanbase that would follow it into the sea thanks to gamer-friendly policies (although the fact that its last game was incredible probably helps). Obviously the situations aren't directly comparable, but treating people well is never a bad idea. You might say Atlus needs a better public persona.
All that aside – and at the risk of continuing to state the obvious – you cannot stop the internet. I'm sure there are other companies that would love to impose heavy restrictions on streamers or lock games to a single machine to see if it has any effect on sales, but most realise these days that that horse bolted decades ago. Gamers simply expect to be able to stream games, and watch streams of games. There's a huge industry around streaming, and fighting it is like trying to fight time itself. Atlus Japan: just evolve those policies already.