A question regarding ESO youtube videos and copyright claims

Voxicity · November 2017

So recently a youtube video which ZOS didn't want to be seen got hit with a copyright claim by Bethesda and is no longer available. I'm not a lawyer and I haven't got that much experience with copyright and fair use, but does this mean if I create a youtube video showing how to do something in game (like a tutorial which isn't very transformative as 'content') I could be hit with a copyright claim also?

Not gonna say what the video was but it did have what you might consider bad intentions, in terms of following the ToS. Does the fact that it intended to show how to do something against the ToS make it more illegal in terms of it's violation of copyright?

Cheers

Digielf · November 2017

It's really hard for a gameplay video to get striked on youtube, it only happens in some extreme cases like with Nintendo and Atlus taking down videos that spoil plot of Pokemon/Persona games, if Zenimax did a strike for an ESO vid it must have been something that bothers them a lot

Voxicity · November 2017

Elfezen wrote: »

It's really hard for a gameplay video to get striked on youtube, it only happens in some extreme cases like with Nintendo and Atlus taking down videos that spoil plot of Pokemon/Persona games, if Zenimax did a strike for an ESO vid it must have been something that bothers them a lot

Yeah it was definitely not a video they would want to be on youtube. My problem is the fact that in the past I have personally reported videos to ZOS which shows the same kind of behaviour (showing how to break a rule in the ToS) yet that video and many others like it are still up to this day. Even that racist video from a year ago is still up and watchable. I guess it is just a case by case scenario where they pretty much just make it up as they go along. Probably part of the zero tolerance image they are trying to give themself since the past week.

OutLaw_Nynx · November 2017

I know what video you’re talking about. It was a video of the exploit. Said poster was encouraging people to partake in the exploit. This shouldn’t even be a question, honestly.

Voxicity · November 2017

OutLaw_Nynx wrote: »

I know what video you’re talking about. It was a video of the exploit. Said poster was encouraging people to partake in the exploit. This shouldn’t even be a question, honestly.

But why is this video hit with a copyright claim but no other video is? This isn't about whether or not the video is wrong or bad, it's about copyright. You can't just start claiming copyright on videos you don't want people to see yet leave all the rest of them. Or I guess you can if you're a powerful company like Bethesda or ZOS.

Jim_Pipp · November 2017

I think I know the video, it was a different exploit from the one people were just banned for.

I don't believe copyright infringement was the reason it was taken down, maybe that is just the lie the YouTuber tells to justify taking the video down.

Most likely the YouTuber (who makes a lot of videos, and a lot, lot more in the last two weeks) realised that they had just posted a video of themselves doing an exploit and realised that was going to get them banned. If zos said anything then it would just be a note from the dark brotherhood saying 'we know'.

Bethseda would struggle to argue copyright (although eso is their intellectual property), and almost certainly this is just an exploiter who is also lying to explain why he took his own video down. I expect he will be caught up in a mass banning as soon as the exploit is fixed.

Voxicity · November 2017

Jim_Pipp wrote: »

I think I know the video, it was a different exploit from the one people were just banned from.

I don't believe copyright infringement was the reason it was taken down, maybe that is just the lie the YouTuber tells to justify taking the video down.

Most likely the YouTuber (who makes a lot of videos, and a lot, lot more in the last two weeks) realised that they had just posted a video of themselves doing an exploit and realised that was going to get them banned. If zos said anything then it would just be a note from the dark brotherhood saying 'we know'.

Bethseda would struggle to argue copyright (although eso is their intellectual property), and almost certainly this is just an exploiter who is also lying to explain why he took his own video down. I expect he will be caught up in a mass banning as soon as the exploit is fixed.

Was this one. I don't condone what they did, I just find it quite scary not knowing what is breaking the ToS and what isnt any more, plus the fact that can lead onto issues with other platforms such as youtube. I will definitely be hesistant on uploading any kind of tutorial in the future because by law, i believe, it would fall into the same category that this video fell into, violating copyright

starkerealm · November 2017

Voxicity wrote: »

So recently a youtube video which ZOS didn't want to be seen got hit with a copyright claim by Bethesda and is no longer available. I'm not a lawyer and I haven't got that much experience with copyright and fair use, but does this mean if I create a youtube video showing how to do something in game (like a tutorial which isn't very transformative as 'content') I could be hit with a copyright claim also?

Not gonna say what the video was but it did have what you might consider bad intentions, in terms of following the ToS. Does the fact that it intended to show how to do something against the ToS make it more illegal in terms of it's violation of copyright?

Cheers

Fair use isn't a protection against copyright claims, it's an affirmative defense after a claim has gone to court.

The very short version is: You post content based on a video game and you could be subject to a copyright claim. If it goes to court, then you can get into Fair Use. When it comes to LPs and video tutorials, that's actually, pretty murky, legally speaking.

I mean, it should pass a fair use tests pretty easily. You're not interfering with the market, it's not a replacement, you are making money off it (but that's not a death knell), and you are transforming the content into something else. But, in order to make that argument, you'd actually need to get all the way through the DMCA notice/counter-notice dance, which doesn't sound like a good time.

Intent doesn't make something more illegal, but it is a factor for fair use tests. The "character" of the derivative work (your video) can weigh for or against you. For example, tutorial videos for clearing content, or teaching players how to play a class effectively could cite that as a reason that they're not infringing. (And, no, it still wouldn't be educational.) While, if you were doing a step-by-step of how to get CE working with ESO, yeah, that could weigh against you.

starkerealm · November 2017

Also, Vox, for the record: I'm not a lawyer. I have to deal with IP issues on a fairly regular basis, and I am unusually well versed in IP law for a layman, but I'm not a professional.

Voxicity · November 2017

starkerealm wrote: »

Voxicity wrote: »

So recently a youtube video which ZOS didn't want to be seen got hit with a copyright claim by Bethesda and is no longer available. I'm not a lawyer and I haven't got that much experience with copyright and fair use, but does this mean if I create a youtube video showing how to do something in game (like a tutorial which isn't very transformative as 'content') I could be hit with a copyright claim also?

Not gonna say what the video was but it did have what you might consider bad intentions, in terms of following the ToS. Does the fact that it intended to show how to do something against the ToS make it more illegal in terms of it's violation of copyright?

Cheers

Fair use isn't a protection against copyright claims, it's an affirmative defense after a claim has gone to court.

The very short version is: You post content based on a video game and you could be subject to a copyright claim. If it goes to court, then you can get into Fair Use. When it comes to LPs and video tutorials, that's actually, pretty murky, legally speaking.

I mean, it should pass a fair use tests pretty easily. You're not interfering with the market, it's not a replacement, you are making money off it (but that's not a death knell), and you are transforming the content into something else. But, in order to make that argument, you'd actually need to get all the way through the DMCA notice/counter-notice dance, which doesn't sound like a good time.

Intent doesn't make something more illegal, but it is a factor for fair use tests. The "character" of the derivative work (your video) can weigh for or against you. For example, tutorial videos for clearing content, or teaching players how to play a class effectively could cite that as a reason that they're not infringing. (And, no, it still wouldn't be educational.) While, if you were doing a step-by-step of how to get CE working with ESO, yeah, that could weigh against you.

I see, that's what I was looking for.

Thanks for your insightful response

OutLaw_Nynx · November 2017

Voxicity wrote: »

Jim_Pipp wrote: »

I think I know the video, it was a different exploit from the one people were just banned from.

I don't believe copyright infringement was the reason it was taken down, maybe that is just the lie the YouTuber tells to justify taking the video down.

Most likely the YouTuber (who makes a lot of videos, and a lot, lot more in the last two weeks) realised that they had just posted a video of themselves doing an exploit and realised that was going to get them banned. If zos said anything then it would just be a note from the dark brotherhood saying 'we know'.

Bethseda would struggle to argue copyright (although eso is their intellectual property), and almost certainly this is just an exploiter who is also lying to explain why he took his own video down. I expect he will be caught up in a mass banning as soon as the exploit is fixed.

Was this one. I don't condone what they did, I just find it quite scary not knowing what is breaking the ToS and what isnt any more, plus the fact that can lead onto issues with other platforms such as youtube. I will definitely be hesistant on uploading any kind of tutorial in the future because by law, i believe, it would fall into the same category that this video fell into, violating copyright

If you can’t figure out right from wrong that’s on you.

Like come on.... that video was for negative intentions only.

Voxicity · November 2017

OutLaw_Nynx wrote: »

Voxicity wrote: »

Jim_Pipp wrote: »

I think I know the video, it was a different exploit from the one people were just banned from.

I don't believe copyright infringement was the reason it was taken down, maybe that is just the lie the YouTuber tells to justify taking the video down.

Most likely the YouTuber (who makes a lot of videos, and a lot, lot more in the last two weeks) realised that they had just posted a video of themselves doing an exploit and realised that was going to get them banned. If zos said anything then it would just be a note from the dark brotherhood saying 'we know'.

Bethseda would struggle to argue copyright (although eso is their intellectual property), and almost certainly this is just an exploiter who is also lying to explain why he took his own video down. I expect he will be caught up in a mass banning as soon as the exploit is fixed.

Was this one. I don't condone what they did, I just find it quite scary not knowing what is breaking the ToS and what isnt any more, plus the fact that can lead onto issues with other platforms such as youtube. I will definitely be hesistant on uploading any kind of tutorial in the future because by law, i believe, it would fall into the same category that this video fell into, violating copyright

If you can’t figure out right from wrong that’s on you.

Like come on....

But does that make it any more illegal in terms of copyright than a tutorial showing how to craft a piece of gear?

I understand people have strong opinions about the exploiting (i sit pretty much on the fence) but I don't understand how that has any impact on whether or not a video violates copyright

OutLaw_Nynx · November 2017

Smh.

Voxicity · November 2017

OutLaw_Nynx wrote: »

Smh.

Like I said before, I'm not bothered about if the content of the video was malicious or had bad intent. I play the game casually and dont care if someone exploits and dont care if someone hates exploits either. I am just interested in the legal side of it and why that video violates copyright whereas a video I reported months ago of someone exploiting in cyrodiil doesn't and that player is still fine and safe even after exploiting the AP event too. I'm basically just confused about the double standards

starkerealm · November 2017

Voxicity wrote: »

But does that make it any more illegal in terms of copyright than a tutorial showing how to craft a piece of gear?

Yes.

I mean, technically it's not about illegality. But, it does mean your chances of successfully mounting a fair use defense, even if you had the money to go to court, are pretty terrible.

Samadhi · November 2017

Voxicity wrote: »

OutLaw_Nynx wrote: »

I know what video you’re talking about. It was a video of the exploit. Said poster was encouraging people to partake in the exploit. This shouldn’t even be a question, honestly.

But why is this video hit with a copyright claim but no other video is? This isn't about whether or not the video is wrong or bad, it's about copyright. You can't just start claiming copyright on videos you don't want people to see yet leave all the rest of them. Or I guess you can if you're a powerful company like Bethesda or ZOS.

If you did not follow the situation where Firewatch devs did copyright takedowns on Pewdiepie for using racist terminology elsewhere
it may be worth a look -- would link to The Know's video on the subject but concerned mods will cut it due to language contained in the video

effectively tho, companies have the legal right to fairly take down any of their content on copyright basis
and since they own the content in question, it is a valid process
they just, for the most part, choose not to punish streamers and let's players and the like because of free advertising

Voxicity · November 2017

starkerealm wrote: »

Voxicity wrote: »

But does that make it any more illegal in terms of copyright than a tutorial showing how to craft a piece of gear?

Yes.

I mean, technically it's not about illegality. But, it does mean your chances of successfully mounting a fair use defense, even if you had the money to go to court, are pretty terrible.

I see. So a tutorial showing an exploit and a tutorial showing how to craft armour would both be vulnerable to a copyright claim, but the one with innocent intent would have a stronger case using fair use.

Voxicity · November 2017

Samadhi wrote: »

Voxicity wrote: »

OutLaw_Nynx wrote: »

I know what video you’re talking about. It was a video of the exploit. Said poster was encouraging people to partake in the exploit. This shouldn’t even be a question, honestly.

But why is this video hit with a copyright claim but no other video is? This isn't about whether or not the video is wrong or bad, it's about copyright. You can't just start claiming copyright on videos you don't want people to see yet leave all the rest of them. Or I guess you can if you're a powerful company like Bethesda or ZOS.

If you did not follow the situation where Firewatch devs did copyright takedowns on Pewdiepie for using racist terminology elsewhere
it may be worth a look -- would link to The Know's video on the subject but concerned mods will cut it due to language contained in the video

effectively tho, companies have the legal right to fairly take down any of their content on copyright basis
and since they own the content in question, it is a valid process
they just, for the most part, choose not to punish streamers and let's players and the like because of free advertising

Interesting, I'll have a look at that. Cheers

starkerealm · November 2017

Voxicity wrote: »

OutLaw_Nynx wrote: »

I know what video you’re talking about. It was a video of the exploit. Said poster was encouraging people to partake in the exploit. This shouldn’t even be a question, honestly.

But why is this video hit with a copyright claim but no other video is? This isn't about whether or not the video is wrong or bad, it's about copyright. You can't just start claiming copyright on videos you don't want people to see yet leave all the rest of them. Or I guess you can if you're a powerful company like Bethesda or ZOS.

No, you absolutely can pick and choose what you want to file a DMCA takedown on.

You're probably conflating a concept from Trademark Law called dilution. You sometimes see this articulated as, "you have to sue for every trademark infringement or you loose the mark," which isn't actually true, but still.

Voxicity wrote: »

starkerealm wrote: »

Voxicity wrote: »

But does that make it any more illegal in terms of copyright than a tutorial showing how to craft a piece of gear?

Yes.

I mean, technically it's not about illegality. But, it does mean your chances of successfully mounting a fair use defense, even if you had the money to go to court, are pretty terrible.

I see. So a tutorial showing an exploit and a tutorial showing how to craft armour would both be vulnerable to a copyright claim, but the one with innocent intent would have a stronger case using fair use.

Yes. Still, you don't even get to argue fair use until you're in court, so you'd be burning a lot of money to get there.

DDuke · November 2017

Technically, ZOS (or in this case Bethesda Softworks, the publisher) could slap a copyright claim on any ESO video out there not created by them.

But why would they? It's free advertising which helps the game. Posting an exploit that gets people banned isn't.

Trust me, gaming companies are the least of your worries when making youtube videos. Just wait until you decide to put some background music in your videos.............

altemriel · November 2017

Voxicity wrote: »

So recently a youtube video which ZOS didn't want to be seen got hit with a copyright claim by Bethesda and is no longer available. I'm not a lawyer and I haven't got that much experience with copyright and fair use, but does this mean if I create a youtube video showing how to do something in game (like a tutorial which isn't very transformative as 'content') I could be hit with a copyright claim also?

Not gonna say what the video was but it did have what you might consider bad intentions, in terms of following the ToS. Does the fact that it intended to show how to do something against the ToS make it more illegal in terms of it's violation of copyright?

Cheers

in case it was a video showing how to do a bug exploit (for example the recent mark of the worm exploit), then it is against TOS and ZOS takes it down.

in case it was regular video, build, story, gameplay, housing show up, anything that does not violate the TOS, it is ok and there is no reason for ZOS to take it down

altemriel · November 2017

DDuke wrote: »

Technically, ZOS could slap a copyright claim on any ESO video out there not created by them.

But why would they? It's free advertising which helps the game. Posting an exploit that gets people banned isn't.

Trust me, gaming companies are the least of your worries when making youtube videos. Just wait until you decide to put some background music in your videos.............

this

altemriel · November 2017

Voxicity wrote: »

starkerealm wrote: »

Voxicity wrote: »

But does that make it any more illegal in terms of copyright than a tutorial showing how to craft a piece of gear?

Yes.

I mean, technically it's not about illegality. But, it does mean your chances of successfully mounting a fair use defense, even if you had the money to go to court, are pretty terrible.

I see. So a tutorial showing an exploit and a tutorial showing how to craft armour would both be vulnerable to a copyright claim, but the one with innocent intent would have a stronger case using fair use.

yes,exploits are forbidden, if you show it in a video how to do it, it would be taken down. if you do a video on crafting, there is no TOS violation and is more of a advertisement of the game, so it is good for ZOS and welcome by them

Voxicity · November 2017

altemriel wrote: »

Voxicity wrote: »

So recently a youtube video which ZOS didn't want to be seen got hit with a copyright claim by Bethesda and is no longer available. I'm not a lawyer and I haven't got that much experience with copyright and fair use, but does this mean if I create a youtube video showing how to do something in game (like a tutorial which isn't very transformative as 'content') I could be hit with a copyright claim also?

Not gonna say what the video was but it did have what you might consider bad intentions, in terms of following the ToS. Does the fact that it intended to show how to do something against the ToS make it more illegal in terms of it's violation of copyright?

Cheers

in case it was a video showing how to do a bug exploit (for example the recent mark of the worm exploit), then it is against TOS and ZOS takes it down.

in case it was regular video, build, story, gameplay, housing show up, anything that does not violate the TOS, it is ok and there is no reason for ZOS to take it down

https://www.youtube.com/watch?v=GSwhOG5S6lY

Voxicity · November 2017

altemriel wrote: »

Voxicity wrote: »

starkerealm wrote: »

Voxicity wrote: »

But does that make it any more illegal in terms of copyright than a tutorial showing how to craft a piece of gear?

Yes.

I mean, technically it's not about illegality. But, it does mean your chances of successfully mounting a fair use defense, even if you had the money to go to court, are pretty terrible.

I see. So a tutorial showing an exploit and a tutorial showing how to craft armour would both be vulnerable to a copyright claim, but the one with innocent intent would have a stronger case using fair use.

yes,exploits are forbidden, if you show it in a video how to do it, it would be taken down. if you do a video on crafting, there is no TOS violation and is more of a advertisement of the game, so it is good for ZOS and welcome by them

I'm not talking about the content in videos. I'm talking about copyright of ESO videos. The video was taken down for copyright which means it breeched copyright. Videos on crafting in ESO also violate copyright and could also be taken down.

starkerealm · November 2017

Voxicity wrote: »

altemriel wrote: »

Voxicity wrote: »

starkerealm wrote: »

Voxicity wrote: »

But does that make it any more illegal in terms of copyright than a tutorial showing how to craft a piece of gear?

Yes.

I mean, technically it's not about illegality. But, it does mean your chances of successfully mounting a fair use defense, even if you had the money to go to court, are pretty terrible.

I see. So a tutorial showing an exploit and a tutorial showing how to craft armour would both be vulnerable to a copyright claim, but the one with innocent intent would have a stronger case using fair use.

yes,exploits are forbidden, if you show it in a video how to do it, it would be taken down. if you do a video on crafting, there is no TOS violation and is more of a advertisement of the game, so it is good for ZOS and welcome by them

I'm not talking about the content in videos. I'm talking about copyright of ESO videos. The video was taken down for copyright which means it breeched copyright. Videos on crafting in ESO also violate copyright and could also be taken down.

Yes, you are talking about the content in the videos, because when it comes to copyright those are inseparable.

Also, if you're using someone else's copyrighted material, you could be subject to a takedown, full stop. There are specific exemptions that are carved out, but this doesn't fall under any of those.

DDuke · November 2017

Voxicity wrote: »

altemriel wrote: »

Voxicity wrote: »

starkerealm wrote: »

Voxicity wrote: »

But does that make it any more illegal in terms of copyright than a tutorial showing how to craft a piece of gear?

Yes.

I mean, technically it's not about illegality. But, it does mean your chances of successfully mounting a fair use defense, even if you had the money to go to court, are pretty terrible.

I see. So a tutorial showing an exploit and a tutorial showing how to craft armour would both be vulnerable to a copyright claim, but the one with innocent intent would have a stronger case using fair use.

yes,exploits are forbidden, if you show it in a video how to do it, it would be taken down. if you do a video on crafting, there is no TOS violation and is more of a advertisement of the game, so it is good for ZOS and welcome by them

I'm not talking about the content in videos. I'm talking about copyright of ESO videos. The video was taken down for copyright which means it breeched copyright. Videos on crafting in ESO also violate copyright and could also be taken down.

That's correct: every video containing content from ESO is technically breaching copyright, but there's no reason for ZOS to automatically start claiming those videos as they're free advertising.

If we get more clowns posting exploits & harmful stuff this might change however, which would make life very difficult for ESO youtubers.

If this were to happen you'd likely have to get written permission from ZOS to post ESO videos on youtube or stream the game in order to avoid copyright strikes.

Voxicity · November 2017

starkerealm wrote: »

Voxicity wrote: »

altemriel wrote: »

Voxicity wrote: »

starkerealm wrote: »

Voxicity wrote: »

But does that make it any more illegal in terms of copyright than a tutorial showing how to craft a piece of gear?

Yes.

I mean, technically it's not about illegality. But, it does mean your chances of successfully mounting a fair use defense, even if you had the money to go to court, are pretty terrible.

I see. So a tutorial showing an exploit and a tutorial showing how to craft armour would both be vulnerable to a copyright claim, but the one with innocent intent would have a stronger case using fair use.

yes,exploits are forbidden, if you show it in a video how to do it, it would be taken down. if you do a video on crafting, there is no TOS violation and is more of a advertisement of the game, so it is good for ZOS and welcome by them

I'm not talking about the content in videos. I'm talking about copyright of ESO videos. The video was taken down for copyright which means it breeched copyright. Videos on crafting in ESO also violate copyright and could also be taken down.

Yes, you are talking about the content in the videos, because when it comes to copyright those are inseparable.

Also, if you're using someone else's copyrighted material, you could be subject to a takedown, full stop. There are specific exemptions that are carved out, but this doesn't fall under any of those.

I meant I'm not talking about whether the content was bad or good or wrong or immoral. If any video can be claimed for someone else's copyrighted material then it shouldn't matter if the content had bad intentions or not. Sure it could help the case of a defense if it was made with innocence, but it could still be claimed

OutLaw_Nynx · November 2017

This dude has uploaded yet another video of the exploit apparently..

Voxicity · November 2017

I just don't understand why ZOS would choose to take down this video, but keep up 46,000 views worth of vMoL exploit videos up. Probably it's just a change in their enforcement and part of their zero tolerance image they seem to be trying to make of themselves.

starkerealm · November 2017

Voxicity wrote: »

starkerealm wrote: »

Voxicity wrote: »

altemriel wrote: »

Voxicity wrote: »

starkerealm wrote: »

Voxicity wrote: »

But does that make it any more illegal in terms of copyright than a tutorial showing how to craft a piece of gear?

Yes.

I mean, technically it's not about illegality. But, it does mean your chances of successfully mounting a fair use defense, even if you had the money to go to court, are pretty terrible.

I see. So a tutorial showing an exploit and a tutorial showing how to craft armour would both be vulnerable to a copyright claim, but the one with innocent intent would have a stronger case using fair use.

yes,exploits are forbidden, if you show it in a video how to do it, it would be taken down. if you do a video on crafting, there is no TOS violation and is more of a advertisement of the game, so it is good for ZOS and welcome by them

I'm not talking about the content in videos. I'm talking about copyright of ESO videos. The video was taken down for copyright which means it breeched copyright. Videos on crafting in ESO also violate copyright and could also be taken down.

Yes, you are talking about the content in the videos, because when it comes to copyright those are inseparable.

Also, if you're using someone else's copyrighted material, you could be subject to a takedown, full stop. There are specific exemptions that are carved out, but this doesn't fall under any of those.

I meant I'm not talking about whether the content was bad or good or wrong or immoral. If any video can be claimed for someone else's copyrighted material then it shouldn't matter if the content had bad intentions or not. Sure it could help the case of a defense if it was made with innocence, but it could still be claimed

Yeah, that's the part you don't seem to understand. Legally speaking it is all infringing.

You make a video of you playing your favorite video game... unless you also made the game yourself, it is going to be copyright infringement.

Now, the rights holder can decide if they want to sue you. That's their choice. They get to pick who they want to go after, and who they don't. If they like what you're doing? You get a pass. If they don't, then they'll file a C&D or a DMCA takedown.

At that point, when you're in court, and spending $200 an hour for your attorney, you can argue it was fair use.