Last Wednesday, Felix "PewDiePie" Kjellberg apologised for using a racial slur during a livestream of PUBG the prior weekend. The incident is notable for many reasons: it involves the biggest star on YouTube, it's far from the first time his moral character has been questioned, and it comes after an apology and a promise to clean up his act.

Subsequent action by one indie studio against Kjellberg also brought issues around fair use back into the spotlight, and amid the chaos that is YouTube's "adpocalypse", it has many other gaming content creators nervous about their own revenue streams. This one incident could have big consequences for gamers on YouTube.

Sadly, it also highlighted once again that many people believe there is nothing wrong with saying the n-word in anger, and had many others blindly scrambling to defend a grown man seemingly sleepwalking his way to bigotry.

WAIT, WHAT HAPPENED?

First, some background. Felix "PewDiePie" Kjellberg is a 27-year-old Swede and the biggest YouTuber in the world. He has more than 57 million subscribers in the platform, and has accrued more than 14 billion views. His target audience is teenagers and those in their early 20s, but it's likely he's popular with children as well thanks to his content, as well as a former deal with Disney's Maker Studios.

Over the years, Kjellberg's presentation style has shifted away somewhat from the energetic shrieking and immaturity that characterised his early Let's Plays, although his style remains provocative and irreverent. Last year, he said he had grown up, and pledged to stop using words like "gay" and "retarded" as pejoratives.

"I feel like back then I didn't understand," he said at the time. "I was so immature, and I just thought things were funny just because they were offensive. So I would say a lot of stupid shit. I'm not proud of it, I'm really not. But I'm also glad that I've grown past it."

PewDiePie, copyright, and the n-word

However, in February this year Kjellberg caused a ruckus when he paid two Indian men on online freelance marketplace Fiverr to hold up a sign that read "Death to all Jews". The story was broken by The Wall Street Journal, and in its reporting, it included a video compilation of eight other instances when Kjellberg had made ironic anti-Semitic jokes.

Some argued that the clips were taken out of context, and indeed, in the full version of one Kjellberg even jokes that it will probably be taken out of context and used against him by the media. Even so, Disney wasn't laughing, and quickly severed its partnership with him.

YouTube then cancelled the second season of Kjellberg's YouTube-backed reality show Scare PewDiePie, and removed his main channel from Google Preferred – its advertising program for selling popular "brand-safe content" that pays creators special ad rates. To top it all off, American neo-Nazi site The Daily Stormer changed its motto to "The world’s #1 PewDiePie fansite".

In the inevitable apology video, Kjellberg said that he has trying to highlight how crazy the modern world is. "I want to make one thing clear: I am in no way supporting any kind of hateful attitudes," he said. "I make videos for my audience. I think of the content that I create as entertainment, and not a place for any serious political commentary.

"I know my audience understand that and that is why they come to my channel. Though this was not my intention, I understand that these jokes were ultimately offensive. As laughable as it is to believe that I might actually endorse these people, to anyone unsure on my standpoint regarding hate-based groups: No, I don’t support these people in any way."

In August, following the neo-nazi events in Charlottesville, Kjellberg pledged to stop making jokes about being a nazi. "It sort of gave me a little bit of perspective, because technically I got grouped in with these people somehow," Kjellberg said. "Believe it or not, I want nothing to do with these people. I have no hate in my heart. I only have hate for hateful people.

"I don’t think anyone that watches me think I’m an actual Nazi, but I know that some people might have some doubts, mainly because of all the jokes that I’ve been making," he added. "At this point, I’d really just want to distance myself from all of this. If for some reason nazis think it's great I'm making these jokes I don't wanna give them that benefit, so I'm gonna stop doing it. Nazi memes are not even that funny anymore."

"A DICK MOVE"

Last Sunday, Kjellberg was streaming PlayerUnknown's Battlegrounds. As you can see in the videos below, when he fails to kill an opposition player, he forcefully says, "What a fucking nigger." Then, apparently remembering that he is streaming – perhaps because a donation notification pops up – he adds, "Jeez, oh my god what the fuck! Sorry, but what the fuck? What a fucking asshole. I don't mean that in a bad… [laughs]."

And seconds later: "Sometimes I forget that I'm livestreaming… he did a dick move, I try to think of the worst word. I end up saying nigger [laughs]… The thing is, I know that no-one watching this stream gives a shit."

"I know that no-one watching this stream gives a shit."
Felix "PewDiePie" Kjellberg

RIGHT IN THE 'TUBES

The online response was as you'd expect. Most condemned Kjellberg and expressed their disappointment, while some defended him. YouTubers also expressed fear that the incident would see policies enacted that would affect everyone on the platform.

DMCA DISMAY

However, the reaction that provoked the biggest response was made by Firewatch developer Campo Santo, whose co-founder Sean Vanaman announced that his studio intended to issue a Digital Millennium Copyright Act (DMCA) takedown (also known as a Copyright Strike) against PewDiePie's Let's Play of Firewatch. Vanaman also promised to take the same action against any future Pewdiepie videos involving Campo Santo games.

"I am sick of this child getting more and more chances to make money off of what we make," Vanaman tweeted. "He's worse than a closeted racist: he's a propagator of despicable garbage that does real damage to the culture around this industry. I'd urge other developers & will be reaching out to folks much larger than us to cut him off from the content that has made him a millionaire."

Vanaman also acknowledged that Santo was tangentially complicit: "I'm sure we've made money off of the 5.7M views that video has and that's something for us to think about," he added. "Lastly: I love streamers. I watch them daily and we sent out over 3000 keys to professional and amateur streamers of FW. Freedom of speech is freedom of prosecution His stream is not commentary, it is ad growth for his brand. Our game on his channel =endorsement."

"He's worse than a closeted racist: he's a propagator of despicable garbage that does real damage"
sean vanaman, campo santo co-founder

On Friday, Kjellberg confirmed that the Copyright Strike had indeed come into effect.

The move from Campo Santo was a significant one, because if a YouTube account gets three Copyright Strikes within 90 days, it is shut down forever, and its owner isn't allowed to start another one.

A successful Strike removes an infringing video from YouTube, but this removal can be contested two ways: the account owner can contact the claimant and ask for a retraction, or they can submit a counter notification to YouTube. If they opt for a counter notification, the copyright claimant then has 10 business days to provide YouTube with evidence they have initiated court action to keep the content down (this is the law). If this evidence is provided, it's off to court we go. If not, the content is reinstated to YouTube.

However, if the YouTube account owner doesn't care about the video being inaccessible and doesn't want to fight, they can simply wait for the Strike to expire, which happens in 90 days provided they complete a short copyright quiz.

Camp Santo's use of the Strike further split commenters: some applauded the move, but others expressed concern that YouTube's DMCA system wasn't designed for such a purpose, and that Camp Santo's actions were abuse of the DMCA tool. Vanaman himself even told BuzzFeed News on Sunday that he was hesitant to use the system against Kjellberg, and that he regretted it.

"I love streamers," he said. "I stream and I watch streamers literally every day. I’m sure a lot of them say things that I hate and have political views that are different than mine, but I don't care because we just play video games together. Nevertheless we made a choice to have Firewatch not associated with his channel anymore, not because he's the most offensive person, but because he’s the biggest. I wish there was a clear way to say we don’t want our work associated with hate speech, even accidental hate speech if that's what it was…

"I regret using a DMCA takedown. Censorship is not the best thing for speech and if I had a way to contact PewDiePie and take the video down, I probably would. He’s a bad fit for us, and we’re a bad fit for him."

Nonetheless some irate gamers decided to 'review bomb' Firewatch on Steam, and in doing so, managed to drop its recent review rating from "Very Positive" to "Mixed".

PewDiePie, copyright, and the n-word

The accompanying comments told the story:

"At least one of the game devs seems to be a DMCA abusing SJW crybaby who is using copyright laws to wrongfully take down videos if the reviewer uses a word he doesn't like."

"Some SJW dev. so yeah♥♥♥♥♥"

"The developers seem to support censorship which I will not."

"The fact that the creator of this game seriously went after pewdiepie is ♥♥♥♥ing pathetic. Instead of complaining, he should ♥♥♥♥ing fix his game. Worst storyline ever"

"This is one of the most beautiful games. Short, but amazing. Pulls you in and keeps you intrigued from start to finish. However, negative review cause the developer is a whiny baby, filing DMCA takedowns over hurtful words."

Fortunately for Campo Santo, these negative reviews are unlikely to have an impact on the game's sales, as it's been out for more than a year and has sold more than a million copies already. However, the small studio has had its hands full keeping angry gamers from spamming hideousness into its forums and Steam community:

ALL APOLOGIES

Kjellberg remained silent for days, his only public online activity being a winking re-upload of an old video of his called "Stream Fails" to his YouTube channel.

Finally, on Wednesday he released a video statement titled "My Response" to his YouTube channel, in which he vowed to improve his behaviour.

Here's his statement in full:

"You probably won't believe me when I say this but whenever I go online and I hear other players use the same kind of language I did, I always find it extremely immature and stupid. And I hate how I now personally fed into that part of gaming as well.

"It was something I said in the heat of the moment. I said the worst word I could possibly think of. And it just sort of slipped out. I'm not going to make any excuses as to why it did because there are no excuses for it.

"I'm disappointed in myself because it seems like I've learned nothing from all these past controversies. And it's not that I think I can say or do whatever I want and get away with it. That's not it at all. I'm just an idiot.

"But that doesn't make what I said or how I said it okay. It was not okay.

"I'm really sorry if I offended, hurt or disappointed anyone with all of this. Being in the position I am, I should know better. I know I can't keep messing up like this.

"I owe it to my audience and to myself to do better than this because I know I'm better than this.

"I really want to improve myself and better myself, not just for me, but for anyone who looks up to me or anyone who's influenced by me. That's how I want to move forward away from this."

In a second video, he added, "This is my fault. I'm the one responsible… The more time that passes, the more and more I realise how wrong I was."

DMCA, YAY OR NAY?

PewDiePie, copyright, and the n-word

Campo Santo's use of a DMCA takedown against Kjellberg occurred at a time when DMCA abuse is a concern of many content creators on YouTube, as some copyright owners use the system to get videos taken down they simply don't like. In the gaming world, this has seen developers DMCA negative reviews for example, but that never ends well.

The trouble is that all Let's Plays and streaming are copyright infringement. "Technically, video game companies can issue takedown requests for any gameplay that is posted online and companies like Nintendo have done this in the past," video games lawyer Michael Lee told Rolling Stone. "However, companies have gotten a lot of bad feedback from issuing takedown requests and usually don't do so. Besides bad feedback, playthroughs drive a lot of new people to a game and therefore it acts as a promotion for the game. I, like many people, don't buy a video game until I see some of it played online."

The Fair Use doctrine of copyright law exists to foster creativity by allowing people to take portions of one person's copyrighted work and "transform" it into something else. However, it's not clear that Let's Plays or streaming are transformative enough to qualify. So Let's Plays currently exist in a grey area in that no-one knows whether they are actually legal or not, because no legal precedent has been set. It's expensive and time-consuming to go to court, after all.

"It is well-established that the software code is protected by copyright law," intellectual property litigator Chris Schwegmann told Rolling Stone. "There is also lots of authority to suggest that the playing of the games in a public forum (like on YouTube) is also protected by copyright law. But this area of the law is still being developed, and I don't know that any court has definitively answered the question… There is no easy answer regarding fair use."

Kjellberg seemed certain that had he taken Campo Santo to court, he would have emerged victorious. In a video on the topic of the DMCA, he called Campo Santo's actions "pretty disappointing", something that "seems more like an attack to me". He also pointed out that the system is open to abuse.

"I can't say for certain that [Let's Plays] are protected for fair use, but I'm fairly certain, and most legal experts would say the same," he said. "I could probably fight this in court and probably win, but I decided not to waste everybody's time… I think these laws are important to protect artists’ work and protect what they do and that’s why I think it’s really dangerous to make these sort of claims and do these sort of copyright claims for no real valid reason."

Kjellberg also noted that Campo Santo has a notice on its website granting anyone permission to stream or do a Let's Play of Firewatch, and claimed that the studio wasn't allowed to revoke this licence.

On the latter point at least, it seems he is mistaken.

Video game attorney‏ Ryan Morrison tweeted that the licence is fully revocable: "I believe they are entirely within their rights here. They are only revoking from one individual, as is their right."

Were a court to look into Let's Plays, one factor it would take into account is industry practice. Because streaming is often encouraged or at least tolerated, that would work in Kjellberg's favour. However, because streams often use immense amounts of game content, that would count against him: the more copyrighted content is used, the weaker a fair use argument is.

Cornell University legal scholar James Grimmelmann told Ars Technica that the fact that Campo Santo is complaining about a racial slur rather than damage to its revenues could work in Kjellberg's favour.

Stephen "The Video Game Lawyer" McArthur told Vice, "Fair use defenses against the DMCA [are] few and far between. However, due to what is likely selection bias, those that have gone to court have typically done quite well."

[It's worth noting here that the recent court victories of prominent YouTubers Jim Sterling and H3H3 Productions didn't involve Let's Plays, and thus aren't a factor here at all.]

LIKE AND SUBSCRIBE

So live streaming and Let's Plays won't get their day in court just yet. But Kjellberg's latest "antics" have once again highlighted – among other things – just how fragile YouTube is for content creators. As Games Industry's Rob Fahey notes, Kjellberg is one of the world's most high-paid and influential children's entertainers, and that is the standard he must be held to, or the advertisers and corporations who provide him with his multi-million-dollar annual income will look elsewhere. Some already did after his prior gaffe.

Another risk is that bigger studios like EA and Blizzard might decide they've had enough and push YouTube to automatically flag and remove all Let's Play videos of their games, which would completely alter the platform for the worse. That alone threat might push YouTube owner Google to decide that Kjellberg has to go – Let's Plays are a huge part of the platform and doubtless make it a truckload of ad money.

It's depressing, but in the end that's probably what it all comes down to: money. Money is why Kjellberg is still there (it's a tough call to axe your biggest star), and perhaps one day, it'll be the reason he is jettisoned.