Poll Question 303 – Is it right that game developers can limit your right to stream games?

Single Player First Person Shooter Maps and Mods for Half-Life 1, 2 and Episodes 1, 2 and 3

I tuned into a Twitch live stream last night for a few minutes and there were two guys playing Half-Life Decay.

At the bottom of the screen was a notice that said something like “Streaming games in North America before their official release date could be a violation of the Terms of Agreement…”.

I have to admit I hadn’t thought about anything like that before and wondered how fair that was – to both parties.

It seems to me that the developers do have rights, but surely letting players see the games first is a free way of advertising.

It also raises the issue of why there are different release dates around the world. Can’t these guys just release it every where at the same time? What are the commercial considerations for staggered launches? Now many things can be digitized it’s hard for the average consumer to understand.

I’d love to hear your thoughts.


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13 Comments

  1. The only case where I can see this being an issue is with open beta tests though generally the beta tester will have agreed to a Non Disclosure Agreement beforehand. The trouble with streaming betas is that they are unfinished and therefore could negatively misrepresent the quality of the final product.

    If you bought a game you should be able to stream it

  2. JG

    Legally, it’s their content and they have the right to call the shots. In the past, a lot of developers and publishers would write it off as free advertising, as Dysprogue said. I remember back when I ran a rather popular fandom web site, the official word from above was “We don’t care what you do, as long as you aren’t making money off it.”

    As you might infer, this got complicated when everyone and their dog starting trying to monetize their videos and streams. A lot of money is now passing back and forth and a lucky few can make a decent living off YouTube videos. But, to me, no matter how much delightful commentary gets added, you can’t get around the fact that they are making money based off someone else’s work and the company holding the rights should have a say in whether or not they are okay with this.

    This isn’t a new idea. Mystery Science Theater had to license the rights to the B-movies they mocked. Weird Al always sought approval from the targets of his parodies and backed off if they didn’t give it.

    In practice, most developers and publishers are fine with it. Some may place limits on monetization. Others, like Take-Two, respectfully ask that authors refrain from posting spoilers for their narrative-driven games. I think both are reasonable requests. Many companies post a “Video Policy” on their web sites to help clarify their official stance. Unfortunately, some choose to leave their fans in the dark.

    Another thing to consider is that the new Xbox One and PlayStation 4 consoles come with Twitch livestreaming built-in. With the push of a button and a Twitch account, anyone can start streaming their gameplay straight to Twitch. I choose to interpret that as any “next-gen” title being fair game for video coverage.

    For its part, Valve has always had a very open policy.

  3. I wish I could abstain:)

  4. Zekiran

    I do think that “before the release date” is an important distinction there. Basically it’s spoiling the product for the potential sales revenues, not enhancing it.

    After the date? I would certainly hope that anything goes. But … frankly if you’re not doing an actual review of portions of the game that have been officially released it’s *not* your business to be leaking content and play.

    I myself try not to watch too many spoiler-ridden trailers or clips of movies I want to watch, I know plenty of people who eat it up for the opposite effect.

    But for my part, officially released stuff and agreed-upon coverage should be up to the publisher. Not to the people who somehow get the product before others, or think they’re doing anyone a favor by it.

    1. Yeah, the “before the release date” thing was also my reason for voting the way I did, and it appears that I am among the unpopular vote. But one reason I can come up with for twitch not allowing this (which where you saw the text would be a specific Twitch rule) is that allowing people to stream the game before any release date gives that individual an unfair advantage over other people streaming the game, especially since there is money to be made form the streams.

      1. Zekiran

        Indeed, that too. Monetizing streams … I don’t necessarily agree with but I can’t really go into that argument lol I don’t watch them enough to say whether they ‘should’ or ‘should not’ be monetized to begin with.

        But any given publisher *does have* the right to NOT allow it. If they choose to single out a few people and give them early access, I would hope they have good reasons, but equally if they choose to shut down any given stream or group, I would want both the coverage and the removal rates to be *fairly enforced*.

        Of course, that too is one of those massive issues that simply can’t be addressed in one blog post. 😀

  5. BlazeHedgehog

    Legally it’s their right, yes. They own the intellectual property, and they control what can be done with it.

    Ethically? Nope. Joss Wheadon was once quoted as saying, “Art isn’t your pet – it’s your kid. It grows up and talks back to you.” Arguments about whether games are art aside, the moment you put something out there in the public space, it’s not really yours anymore. It’s that old thing of how the moment you observe something, you change it.

    If you don’t want people to stream your game, to show it in less than ideal conditions, to spoil the ending or whatever, then don’t release it. Because for every hole you plug, ten more are going to open somewhere else.

    1. JG

      I don’t think “ethics” have anything to do with it.

      Wheadon’s example is totally accurate if you’re a guy who singlehandedly painted a portrait or wrote a book. You can do anything you want with that. But that’s not usually the case. As long as there is some publisher out there who is paying you to do this, they have the right to decide what happens to it.

      By your argument, if I made a million bootleg copies of Firefly and put them up for sale on store shelves, Fox should have no right to shut me down.

      1. Legally it’s not entirely cut and dry. Video commentators could be exempt from copyright exceptions relating to both parodying and reviewing media. Whether most streams count as reviews or parody is definitely debatable.

        Morally I think non profit streaming is absolutely fine but if you’re making money off someone else’s product generally speaking they are entitled to a cut and should at least be consulted.

        1. JG

          As Wikipedia says, there’s a three-pronged test for whether or not something qualifies as fair-use. Among the factors are how transformative it is of the original work and if it could replace it. Since this is decided on a case-by-case basis, we don’t have legal precedence when it comes to Let’s Plays since it’s never gotten that far in the courts. So, at best, it’s a gray area of the law.

          Intuitively, I think of it like this. If I had a DVD of a movie and I played that movie in its entirely on my YouTube channel, but talked over a couple parts to give my opinion, I don’t think that qualifies as fair-use. A person could watch my video and never go out and buy the movie. I’ve replaced the movie.

          Of course, with video games, there’s always the question of whether or not the acting of playing is, itself, a unique contribution. The less scripted a game is, the more it benefits. In a heavily scripted game, you could easily see how someone could watch a Let’s Play and never buy the game.

          I think the way we currently have it, where companies devise their own video policies that suit them, is the best way to handle this ambiguity, but only as long as the companies make it clear what the guidelines are. Leaving fans in the dark is not the right way to go.

  6. I think one thing people are forgetting about here is that the policy we are currently discussing is an actual Twitch policy, and not of any developer or publisher.

    Also, the fair-use clause probably can’t always be applied here, but many times, the streams and videos of the game serve as free advertising for the companies making these games, and games that get lots of videos and streams generally have higher sales than games that don’t. I know that EA has re-released old titles they shelved as they gained popularity on YouTube and Twitch, and other titles that have been around for a long time see an uptick in sales as well.

    1. JG

      Like I said, the sales influence depends on the game.

      Something that’s deliberately broken, like Goat Simulator, is bound to do pretty well as a result of viral videos. So are sandbox-style games like Garry’s Mod, GTAV, etc. and multiplayer games. Anything where the same thing won’t happen twice. As well as any game that’s sort of obscure or forgotten – being put back in the public eye doesn’t hurt at all.

      On the other hand, tightly scripted, narrative-driven games like BioShock probably don’t fare as well because you could watch an entire stream of it, see all there is to see and then never buy it.

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