(This article was co-written by Morphman)
The last year has not been great for PewDiePie, AKA Felix Kjellberg. He ended up in the deep do-of-dos earlier in the year when his Hitler jokes rubbed the wrong people up the wrong way. Long story short, he made Hitler/Nazi jokes in a mixture of tones that fits somewhere between irreverently crude like ‘South Park’, and hard-nosed political commentary like “Real Time” (HBO) host Bill Maher. With the nature of the YouTube platform, many where not pleased and so he was kicked out of the Disney/Maker network and season two of his YouTube Red series “Scare PewDiePie” was canned in response. His response was that he could see how the jokes could be miss construed but re-iterated they were just jokes. My response was ‘I don’t think he is racist. I just think he’s an idiot.’ Since then, and in response to the recent pro-Nazi tones of some protest marches in the US, he responded by saying that he was taking the Nazi jokes out of his repertoire. It kind of fit my thoughts that he’s just an idiot that happens to have an big audience.
Then came Sunday night. He was playing “PlayerUnknown Battlegrounds” (as is every streamer going by player numbers) and in response to a move that was bad form from an opponent he yells “…fucking n***er.”
What followed was YouTube, its creators and seemingly Felix himself letting out collective sigh muttering ‘god damn it’ under its breath. He immediately realised what had slipped out and slammed into reverse gear but it was too late. In seconds the internet was aware and the typing began.
I’m not here to join the dog-pile onto Felix or defend him. Because like before my response is;
I don’t think Felix is racist. I think he’s a bleeding idiot.
The fact that the word is in his common parlance that he yells it as a swear is a concern but it can end up there with the ‘dropped r’ if rap aficionados are anything to go by. My issue, as with many other content creators, is that he has ended up being the face of the content creators and this isn’t going to do much to help the brand image.
It’s the unfortunate way that the internet works. The number one guy is the generalization of everyone else and the number one guy on YouTube is Felix. Advertisers will look at him and say (wrongly) that all YouTubers are like him and question advertising for the sake of their brand. It’s one of the exasperating factors of the ‘adpocalypse’ that is plaguing independent creators at the moment.
But another response that was unexpected and hits Felix directly is from Campo Santo and former Telltale Games writer Sean Vanaman who said:
We're filing a DMCA takedown of PewDiePie's Firewatch content and any future Campo Santo games.
— Sean Vanaman (@vanaman) September 10, 2017
Now we’re moving into the twisted and complicated realm of legal issues, which is Morphman’s domain so I’ll let him take over from here.
Vanaman has since said that he is in discussions with his legal team regarding whether or not they’ll actually file any DMCA claims on Felix. This is not reflected on his twitter though. Since that tweet, the only tweets to come out of that account has been a rant about how he would be in the right to file these DMCA claims.
This is a slippery slope to walk down for Campo Santo, as evident by many recent legal cases. DMCA deals explicitly with copyright issues and offer sites like Youtube safe harbour from prosecussion if they immediately respond to copyright claims in accordance to the claimant, regardless of their own opinion or expertise about whether or not the content in question is in violation of copyright. This means anyone can claim any video is their legally owned property and have it taken away or have revenue from it taken away and the only course of action the uploader has is to take the issue to court.
Copyright is not a criminal issue, so therefore the laws in the US does not automatically grant the payment of legal fees to be put unto the losing party. This means it will be very expensive for both parties if it goes to court. Even the richest youtuber will struggle to pay these fees, as the case may drag on for months or even years, as evidenced by Fair Use legal cases like Ethan and Hila Klein (H3H3) vs Matt Hoss. The court may be lenient on the content creator, knowing all these issues exist, and look for the quickest way to resolve the issue. This usually means finding holes in the claimant’s arguments.
For cases where DMCA is used to remove content that the claimant feels is damning for their brand, this may be either the Fair Use clause or misappropriation of the DMCA. A good example is when CrossFit sued Alveis for using their trademark. They issued a claim to Facebook and got the content taken down. The court decided that CrossFit had misappropriated the DMCA by using it for trademark issues rather than copyright issues.
As Vanaman has pointed out, Campo Santo may hold all copyrights to Felix’ videos since they are livestreams and not commentaries. However, since they only go after Felix’ videos while knowing there are many, many more live streamers out there using their content in the same way, the court may still find it to be a misappropriation of the DMCA. Its purpose is clearly to not have Campo Santo content associated with Felix’ use of certain offensive words.
They would be much better off going through court directly and sue Felix on the grounds of libel. It takes a lot longer to get the content removed, because then they have to prove the damages before the court can order the content removed. On the other hand, this is the correct way to do it, to require evidence first and have a legal case against the content you wish removed. Whatever damages the brand sustains from it will be awarded to them anyway, if they win the case.
That is not the easy way though. DMCA takedowns would be the easiest and quickest way and requires no evidence at all to be presented. By the time Felix can prove anything in court, if he even wishes to take it that far, the profitability of the videos will be long gone. Even if he got people to watch it after that long, there’s no telling if Youtube will let him advertise on them due to the language being deemed to be too unfriendly to advertisers.
It is relatively safe for Campo Santo to use DMCA takedowns on the videos, but it’s not the moral thing to do. If they do, they will face massive backlash for censoring what they deem to be wrong. It will signal to other content creators that they may only use Campo Santo material if they mind their words and actions carefully. It highlights everything that is wrong with DMCA right now and why it needs to be updated for the Internet age, as it puts the claimant in the position of judge and jury. Abusing DMCA online is immoral and illegal, but it has next to no ramifications to the claimant due to the extremely low profitability of Internet media compared to traditional media. If used against a TV network, the takedown may cause millions of dollars in lost ad revenue for a single viewing, billions in the long run. A single viewing may cover all legal fees and more. On Youtube, even for the top Youtube channel, we’re talking at most 100 000 US dollars, which after tax becomes even less. A Youtube channel is much more likely to just cut their losses and shun the company that filed the claim, as that will be much more profitable to them. With an average of 3 videos per day, losing the one Firewatch video currently on his channel won’t really hurt him that badly.
But Vanaman should be aware, losing close to 58 million possible customers might hurt them. Abuse the system long enough, and sooner or later it will bite you.