Critics vs Content Rights

Stepping beyond the legal issues and questioning the morality of a very disturbing thing.

The issue of Let’s Play videos on YouTube is still rolling on, over a year after the whole argument blew up.

Whatever you think about the problem, we must acknowledge that legally, content holders – Nintendo, EA, UbiSoft and others – have the right to protect their content. Yes, the laws that were created are hideously outdated and are being drawn from the 1980’s, way before the Internet got into the hands of the general public and infiltrated every inch of our lives. But yes, it’s fair that independent creators defend their work because ultimately, it’s their livelihood and they deserve a living as much as anyone else does, up to and including Let’s Play creators. The issue is complex because the way we consume and share media in the modern age is rapid, and hard to control. And ultimately, it is ABOUT control. It’s about protecting something, and wanting to make a living from it whether you’re Phil Fish or Yves Guillemot. We complain publishers shouldn’t control things but studios are often paid by publishers, so the money filters down through the chain and it’s the same deal whether you’re relying wholly on the revenue generated from sales or taking home a steady pay cheque from your company bosses. To do this means maintaining some semblance of control.

However, I’m actually worried about one thing; that is the idea of sharing revenue, and what it might do for critics of videogames. The likes of Angry Joe, Totalbiscuit and to a lesser degree, Jim Sterling.

Games criticism is something which needs as wide a berth from the industry as is humanly possible; I’m reminded somewhat of the big EuroGamer scandal a couple of years ago, where Rob Florence lifted a rock under which one or two reviewers were hiding connections with publishers and was subsequently bullied out of the way. I am also reminded of the great big gating scandal of Aliens: Colonial Marines, where a review embargo ensured that no critic could dare speak out about the quality of the game in question, in order to get the maximum revenue from pre-orders as was possible. How different would it have been if we had known a few days before release about how awful that game was, how stupid, how utterly horrific and badly-designed it was? Would any of us have kept our pre-orders intact, or would we have taken the opportunity to cancel them and save ourselves ¬£40/$65 and put it towards something more important, like shoes, clothes, food or any other basic amenity?

Reviews of any kind require an independence from the industry in question – be it games, movies, music or literature – because it needs to be analytical, critical and ultimately inform a reader or listener as to whether an object is worthy of investment. That requires trust, fundamentally, trust that a critic isn’t gurning on cue for a big fat chunk of cash behind the scenes. Reviews have to tread a fine line, because publishers and developers – like any business – don’t inherently take criticism very well. If a game scores a one out of ten, we all laugh at the review and joke about it, but the content holder then has to deal with the ultimate issue that their game is getting mauled.

As Gearbox proved last year via Randy Pitchford, these people often don’t accept valid criticism or public backlash because, to them, this is their product and damned be them to accept that they shafted a shoddy, malfested piece of garbage onto the market. But ultimately, the situation looked seedy particularly because of the review embargo, and the reactions from Gearbox in response to widespread critical backlash – and fan backlash, because ultimately the review embargoes were only one thing. It took in some cases YouTube videos to really hammer the point home, to really point out how badly wrong things had gone. Whether it was someone circling all the tearing issues, someone pointing out how poorly crafted it was or even someone bugging out a xenomorph and overlaying it with “Ragtime Gal” (a reference from the movie Spaceballs), YouTube was front and centre at the time in pointing out visually why Aliens: Colonial Marines was so awful. Words can only do so much. Visual demonstrations can have a bigger impact, in a much shorter space of time.

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*shudders*

Google’s biggest issue with YouTube, then, is to protect whistleblowers and free speech; the right to call big businesses out when they’re doing something inherently anti-consumer, or releasing something that isn’t worth a fraction of the cost of the packaging used.

I’m still a little more on the industries side about whole playthroughs; if you’re doing a dozen videos and showing the whole game from start to finish, then yes. I’m sorry, but that’s straying over the line a little. I know for a fact some people even go onto YouTube and search for game endings, because ultimately that’s what people tend to discuss and then they borrow snippets of information from various sources to pretend they’ve played a game (I think this is stupid, but face facts, we know people who do this. Someone tried doing this with Game of Thrones recently in my life, and I thought, “You are such a dolt!”). Such things are perhaps just a tad hypocritical; you can’t profess to be supporting the industry and doing free advertising when your advertisement is essentially the whole bloody product. I mean come on, aren’t we already sick and tired of Hollywood putting all the really good jokes from comedies into the trailer and leaving nothing else as a surprise when you do inherently fork money over to go and see it?

But that’s a wholly different topic to address at another time really. When it comes down to it, there are people on YouTube and beyond who do a fantastic job of holding the industries most egregious errors of judgement front and centre, showing them up for what they are. And we’ve seen many times that the likes of Totalbiscuit, and Angry Joe and Jim Sterling and many, many others are having content removed under copyright claim because they’re being too critical, exposing the product for what it really is (usually, garbage). The industry is trying to stifle critical thought in some of these cases and frankly, that offends me deeply. “We should have a right to make money from this content!” holds no sway with me, because ultimately the point isn’t meant to support the content creators, but to expose them and their product for what they really are; greedy, lazy and nasty.

Even if ‘legally’ the content isn’t owned by the critic, the critic shouldn’t be forced to give up their independence or their revenue by handing out a little bit of truth here and there. There’s talk of licensing arrangements and some already partake of those, but caution is often sounded¬†because it’s an arrangement between critics and those they are criticising, and that’s oil and water territory right there. The industry forgets that reviewers, critics and analysts are there to generally be the ballast to their hype-trains. They assume that their rights are inherently more important than helping consumers make an informed, intelligent decision about what they buy. Google has made it easy for such things to happen on YouTube, and that’s concerning. There’s no thought, no critical eye, no questioning the validity of claims or whether it’s someone flexing their ‘rights’ to hide what is otherwise an awful product. We aren’t here as bloggers, YouTubers or reviewers for big sites to always be nice; we are not paid mouthpieces, and we shouldn’t be that either. It’s important in criticising anything to be able to have that disconnect, to say, “This is terrible and this is why it’s terrible.”

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Although in some cases, it’s self-explanatory…

Is the industry relying on old outdated laws to get away with below-average games and stifle any exposure of said facts? The answer seems to be increasingly “Yes”, and to me this is often the point when the law needs to re-examine the legal rights and documentation in order to disseminate whether or not the law is being abused by companies for their own personal gain, screwing the consumer in the process. Calls across the world are sounding out for an overhaul of patent law, for example, and we’re seeing that with Philips vs. Nintendo – where a Philips patent from 2011 trumps Nintendo’s product that has been on the market for seven or eight years. Some are calling for a five-year time limit; a product on the market for that time must be immune to patent challenges, because that’s plenty of time to build a legal case. And if you haven’t challenged in that time, then clearly you’re just waiting for it to sell buckets and profit and that’s not on either. Will such ideas end up in law? Probably not. But the sounding board is out that patent law is being abused, and something needs to be done. We’re still waiting for information on the Aliens: Colonial Marines lawsuit – last we heard, the case was allowed to go to court in the public interest, but it’s been quiet since then. But I still think it’s an important thing to happen; consumers need to be protected.

The law simply hasn’t kept up with the rapid change of the world, and it’s so muddled and confused when we do get into it that clarification is necessary before we see too much damage done. Both sides need to be protected in such instances; we all need protections, and new legal clauses that help us make better decisions, or find recompense when nasty business practices seek to exploit loopholes or old legal clauses. In some cases, the public backlash over some video removals might keep them somewhat sweet for the time being, but it’s nothing compared to the finality of finally getting these bugbears before a judge somewhere, so we can finally get something resembling guidelines that everyone can follow.

Right now, it’s a hot mess. And it’s the law playing catch-up. Time to redress the balance, for better or worse.

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