Archive for category Politics and Law

Revisting Let’s Play Videos: A Divine Knight Perspective

cropped-dkgaming_title_long.pngOriginally published on Divine Knight Gaming.

In the early part of last year, we wrote an article about our thoughts on Let’s Play videos and fair use. This was written in response to Nintendo’s choice to use YouTube’s Content ID system to claim ad revenue on user created videos of their games.

In that we wrote that fair use trumps any claim we may have on video’s depicting our games.

But for us, we don’t think that creating a video of you playing our game is anything but fair use. How can it not be? You are not creating direct copies of our games. So you are not infringing our right to be the sole distributor of our game. The videos are clearly transformative. Meaning, it is not a substitute for people buying our game as watching a video is a vastly different experience than actually playing it. Additionally, the majority of let’s play videos include content, such as commentary, that is not created by us. That is the copyright of the person creating the video. We provided a canvas, they made the painting. That is how we see it.

Because of these thoughts, we chose not to give explicit permission to create let’s play videos of our games because we have no to right to do so.

But now another issue has come up, one that was at issue back then, but didn’t make the headlines as it is now. This issue is whether game developers have any right to claim money made by let’s players. Why is this an issue now? Two reasons.

One is the news that PewDiePie made roughly $4million on let’s play videos last year alone. That is seriously a lot of money. I would love to do something that brought in that kind of cash.

The second reason is Fez creator Phil Fish’s response to that news. On Twitter, he wrote that Let’s Play video creators owe game developers a large portion of any money they make from those videos. This did not go well among a lot of people.

So we gave our general thoughts on this matter last year, but wanted to respond further. So we wanted to answer a few questions about our thoughts on this money issue. Questions are thanks to Oklahoma Game Developers (which I write for and own) Read the rest of this entry »


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Are Tax Breaks For Game Developers Economically Sound?

Originally published on Game Politics

Throughout the US and around the world, game developers are fighting for tax incentives and breaks similar to those offered to other creative industries such as the movie industry. Many groups such as TIGA in the UK make the claim that such tax breaks are needed in order to compete with other nations for game development talent, competition created in part by the tax breaks and incentives offered in those competing nations.

While these fights for increased tax breaks rage on, one question seems to remain unasked. Are these tax incentives worth the trouble?

In its Video Game Nation coverage, Reason asks that very question.

Under the Texas Moving Image Industry Incentive Program, the Lone Star state has set aside $95 million in funds over the next two years toward grants for both filmmakers and developers—making it the largest incentive program in the nation. And so far it seems to be working. Texas is now only second to California when it comes to video game employment.

But are these subsidies creating enough economic growth to justify their cost? [Calvin H. Johnson, professor of law at the University of Texas at Austin], who specializes in tax law, thinks that video game makers are enjoying a tax deal that’s too good to be true.

“If you’re going to double the rate of return for federal subsidies then you really ought to have a good justification that the public is getting a benefit equal to that incredibly intense incentive,” Johnson states. “And I must admit, I’m not convinced that the unemployed son spending 17 hours in the basement of his mother’s house working on his Doom 3 is making a grand contribution.”

While Johnson’s example of one potential recipient of these tax incentives seems a bit… ignorant, his main point does make some sense. Is the public getting a valid and worthwhile return on their investments in these programs? This is a very interesting question to ask, especially at a time when the Federal government and many state governments are operating under deficits in their budgets.


Game Politics Contributor: E. Zachary Knight

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New Wave Of Trademark Trolling Is Upon Us As “Candy” Gets Trademarked

Candy Crush SagaThere doesn’t seem to be an end to the art of trademark trolling. One would have thought it would have ended with Tim Langdell being sent packing after trying to enforce his trademark on the single word “Edge”. Not long ago we had Bethesda claiming that its trademark on “The Elder Scrolls” blocked any and all use of the single word “scrolls” in game titles. It used that claim to force Mojang to change the name of its fantasy card game “Scrolls”. We also have Zynga and its claim to any game title ending in “ville”.

Unfortunately, this type of behavior is not going to stop any time soon.

A new trademark bully in the making has entered the ring. King, the creator of the hit match three game Candy Crush Saga has been granted a trademark on the word “candy” in relation to games. Not “Candy Crush” or “Candy Crush Saga”, just “Candy”. King has taken no time in enforcing this new trademark. Read the rest of this entry »

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Senator Coburn Targets Games Among Other Programs In His Wastebook 2013 Report

Senator CoburnOriginally published on Game Politics.

Every year, Senator Tom Coburn of Oklahoma publishes a list of government programs which he feels wastes tax payer money and government resources called the Wastebook. While he tops the list of wasted tax payer money with a jab at Congress itself, it is when you get into the rest of the document that you find some rather interesting spending programs. In his opening statement to the report, Coburn writes:

Confronted with self-imposed budget cuts necessary to trim years of trillion dollar shortfalls, Washington protested that it could not live within its means. It attempted to take hostage the symbols of America to exact ransom from taxpayers. Public tours of the White House were canceled and Medicare payments for seniors’ health care were cut.

While the President and his cabinet issued dire warnings about the cataclysmic impacts of sequestration, taxpayers were not alerted to all the waste being spared from the budget axe.

Many of these are your typical government waste, such as bridges to nowhere, duplicated programs and agencies, or unused buildings which cost money to maintain. Yet, he highlights many other programs that many taxpayers may not be aware of even in a general sense. Some of these include funding for video games. Read the rest of this entry »


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Senator Coburn Responds To Oklahoma Game Developers Concerns Over S 134

Senator CoburnNearly three months ago, a group of game developers and other concerned constituents in Oklahoma sent a joint letter to Senator Tom Coburn, cosponsor of S 134 Violent Content Research Act of 2013. In that letter, they expressed concern over the bill’s sponsor, Senator Rockefeller, and the potential of this bill to lead to further attempts at game regulation.

Senator Coburn responded yesterday to that letter attempting to calm the fears that Senator Rockefeller might bias any studies and that the bill would not add to the current spending levels of the government. Read the rest of this entry »

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Oklahoma Game Developers Oppose Senator Coburn’s Support For Violent Game Research Bill

Originally Published on Oklahoma Game Developers.

Oklahoma Senator Tom CoburnToday, Oklahoma game developers sent its letter to Senator Coburn regarding his co-sponsorship of S. 134 Violent Content Research Act of 2013. This bill if passed would require the National Academy of Sciences to perform studies into the connection between violent games and violent actions. The primary issue with this legislation is that the bill’s sponsor has shown a heavy bias against the games industry which leads us to believe that any studies resulting from this bill could be tainted by his bias.

Senator Coburn has many times come out against the funding for such studies and it is unclear why he would support a bill that could potentially waste tax payer money as well as dilute the valuable research that can be done outside the influence of bias.

The below letter was sent to Senator Coburn as well as members of the media based in Oklahoma and throughout the US.   Read the rest of this entry »


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ECA Concerned Over Bill Seeking To Research Violent Games

Entertainment Consumers AssociationThe Entertainment Consumers Association has issued an action alert for its members asking them to contact Congress in order to oppose a recent bill that would authorize the National Academy of Sciences  to study whether “exposure to violent video games and video programming” has a harmful effect on “children.” This bill is in response to a White house proposal in the wake of the Sandy hook school shooting last year and is part of a larger agenda by the White House.

The ECa takes issue with the proposal on a number of fronts. The first being the bill’s primary backer Senator Rockefeller.

The ECA has numerous concerns about this and feels that this is a distraction to finding the real cause of these events. Senator Rockefeller himself, who has championed this legislation, has, on the record, stated that he disagrees with the Supreme Court’s decision that video games are protected free speech. In his remarks on the floor of the US Senate, he said:

“Recent court decisions demonstrate that some people still do not get it. They believe that violent video games are no more dangerous to young minds than classic literature or Saturday morning cartoons.”

With all due respect Senator, the highest court of the land has reviewed the scientific research and concluded that video games do not cause violence. The non-scientific personal opinion of the Senator should not get to overturn the Supreme Court ruling.

Other concerns being that the proposal ignores existing research on the positive influence of video games and that this study may induce further power grabs by federal agencies. You can read the full statement at the action page.

As gamers, we have a strong interest in the movements of elected officials when it comes to gaming. Studies such as those proposed above can have a direct effect on the availability of the games we love, especially if they result in efforts to regulate the games industry and the games it produces. While the ECA is the only organization to count on when it comes to protecting the rights of gamers.

So please act now to express your opposition to this legislation and consider joining the ECA and support its efforts to protect gamers and their interests.

Disclosure: I am a member of the ECA and a contributor to ECA publication Game Politics.

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Two Years After Brown vs EMA; Where Are We Now?

Seal of The Supreme Court of The United States of AmericaTwo years ago, the Supreme Court ruled on Brown vs EMA. This case sprung from California’s attempt to treat violent video games in a similar fashion to alcohol, tobacco and pornography. That law was passed in 2005 and went from court to court till the Supreme Court took it up in 2010. California wasn’t alone either, over 10 other states had attempted similar legislation all with the same result, being struck down as unconstitutional when challenged by the games industry.

The California case was different than the rest, as California was willing to go beyond Federal District Court all the way to the Supreme Court. Something no other state was willing to do. But its bluff was not sufficient. The Supreme Court ruled in favor of the games industry’s free speech rights(PDF) and said California’s attempt was unconstitutional. Read the rest of this entry »

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Divine Knight Gaming: What’s All This About Let’s Play Videos?

Originally Published on Divine Knight Gaming.

Earlier today, the news started circulating that Nintendo plans on monetizing videos that feature its video games. Not all videos mind you, just videos of certain unspecified lengths. Here is Nintendo’s statement to the website Go Nintendo:

As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property. For more information please visit

It quickly became apparent that this was going to impact Let’s Players, or people who record and publish walkthroughs, tutorials and other lengthy game related material on Youtube, the most. Many Let’s Players and Nintendo fans were justifiably upset by this move from Nintendo. It seems that Nintendo underestimated its fans and how they would react to this move.

In response to this, Lars Doucet, the creator of Defenders Quest, started a list on Reddit of various game companies and their stance on the creation and monetization of Let’s Play videos. We quickly added our names to this list, although we have yet to release a game of any significant size. However, we seem to be in the minority in our stance of not having a written policy on this matter. I want to take a few minutes to explain why.

At Divine Knight Gaming, we believe strongly in Fair Use, or Fair Dealing in some countries. Fair use is a limit on the control that copyright holders have on the content they create but sell to fans. With fair use, someone can buy or otherwise legally obtain a copy of something covered by copyright, and the holder of that copyright is limited in what they can tell the customer in regards to what they can and cannot do with it. This fair use is one of the reasons why we have things like game rentals and a used market. It also covers other uses of games such as creating video reviews, walkthroughs and such. The key to fair use is that you either aren’t making a full copy of the work, or that what you do copy is limited in scope as to not infringe on the market for the original.

If you want to read more about fair use, you can check out the fair use clause of US Copyright law.

But for us, we don’t think that creating a video of you playing our game is anything but fair use. How can it not be? You are not creating direct copies of our games. So you are not infringing our right to be the sole distributor of our game. The videos are clearly transformative. Meaning, it is not a substitute for people buying our game as watching a video is a vastly different experience than actually playing it. Additionally, the majority of let’s play videos include content, such as commentary, that is not created by us. That is the copyright of the person creating the video. We provided a canvas, they made the painting. That is how we see it.

So why not write up an explicit license or statement allowing for such use? Because it is not in our right to grant you permission to do something in which you have a legal and natural right. That would be like me giving you permission to breathe or eat. We couldn’t stop you if we wanted to. Even if we wanted to, we would have no right to prevent you from doing it.

Of course, some people seem to side with Nintendo on this issue. But we can’t. Nintendo, while it created the games featured in the videos, has no right to the other creative aspects of the uploader. They did not write and record the commentary. They did not chose which scenes or in which order to include. They did not chose the sequence of actions of the player character. They provided a canvas for which they were legally and justly compensated for when the let’s-player bought the game. That is the extent of their claim.

So, if you are interested in creating videos featuring any of our current or future games, we are not going to give you permission. You don’t need it. Your desire to create is all that is required.

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VGVN Touts 500k Members: Does It Really Mean Anything?

Over the last few weeks, the Video Game Voters Network, the astroturf group set up by its parent the Entertainment Software Association, has been touting that it has over 500,000 members. While this number may sound really impressive on the surface, it doesn’t really hold up to reality. Take this graphic it just posted to Twitter:

VGVN Claims over 500,000 Members

500,000 members is a lot but are there really that many? Are they really active and engaged in the work of the VGVN? To answer this, let’s first take a look at what it takes to become a member of the VGVN. Here is its sign up form:

VGVN Signup Form

If you don’t notice something wrong up front, let me explain. To become a member of the VGVN all one has to do is fill in an email and a zip and you are done. No further steps, nothing. Pretty simple. With such a simple method to become a member, then what is to stop a lot of people from joining. There is no risk, no effort. With such a simple form, how do they prevent people from signing up multiple times? With this form, I could sign up with all 8 of my current email addresses (yes I have 8, probably more) and I would count as 8 members. So how do they account for that possibility?

If the process of signing up is so simple, what incentive is there to drop out of the organization? Is there even a way to do that? Does the VGVN have any way to measure engagement in the organization outside of those who simply sign up? Not as far as I can tell. With no meaningful method of establishing activity in the organization, what is the point of touting this number? It would seem that this is merely a smokescreen to make it sound like this organization is worthwhile and effective, when it may very well not be.

But aside from the questionable nature of the membership numbers, the primary concern we should be considering here is how much weight these “500,000 gamers” have in the overall direction of the organization. As I mentioned in the opening, the VGVN is owned by the ESA, the largest lobbying organization for game publishers. What happens when the interests of the gamers represented by the VGVN clash with the interests of the publishers represented by the ESA? Look no further than last year’s Stop Online Piracy Act debate.

For many months, the ESA openly claimed support of SOPA. They claimed it was necessary to protect their members’ interests and profits from online piracy. However, many consumer groups opposed the legislation as it would have had severe unintended consequences for free speech online. Many consumer organizations were in opposition of SOPA except the VGVN. Throughout the whole debate and the site blackouts all over the internet, the VGVN never once spoke up in support of its members. It never once said a single thing in regards to SOPA. Despite many attempts to contact someone at the VGVN, I never once heard back from them. This event showed that those 500,000 members it claims to represent don’t matter when the interests of its publisher controlled master clash.

So what should you do if you are a “member” of the VGVN? That’s up to you ultimately. However, my suggestion is to unsubscribe. I have no idea if that will delete you completely and you will no longer be counted when it touts its numbers, but at least it sends some kind of message. My other suggestion is to join a gamer organization that actually cares about you. One that is independent of any corporate masters. A group like the Entertainment Consumers Association. (disclaimer, I am a member and work with them over at Game Politics as well as other aspects) This group has done wonders over the years to protect the rights and interests of gamers. Yes it costs money to be a member and to stay a member, but the benefits you get in return far outweigh the costs.

Don’t be fooled by big numbers like those touted by the VGVN. Those are mere distractions from what really matters, its record. What does it really stand for and who is it really speaking up for. That is what matters in the end. If it is not 100% on your side, then you should not be on its side.

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