{"id":3715,"date":"2016-07-15T10:04:23","date_gmt":"2016-07-15T02:04:23","guid":{"rendered":"http:\/\/innovatus.pro9.designworks.tw\/?p=3715&lang=en"},"modified":"2021-03-18T18:05:17","modified_gmt":"2021-03-18T10:05:17","slug":"streaming-league-of-legends-and-spectatefaker-would-arbitrary-game-licensing-rules-curtail-free-speech-like-the-digital-millennium-copyright-act","status":"publish","type":"post","link":"https:\/\/www.innovatus.com.tw\/en\/streaming-league-of-legends-and-spectatefaker-would-arbitrary-game-licensing-rules-curtail-free-speech-like-the-digital-millennium-copyright-act\/","title":{"rendered":"Streaming League of Legends and SpectateFaker \u2013 Would Arbitrary Game Licensing Rules Curtail Free Speech Like the Digital Millennium Copyright Act?"},"content":{"rendered":"

Author:\u00a0Colbert Hung, The Chinese University of Hong Kong<\/p>\n

League of Legends (\u201cLoL\u201d) is no doubt one of the most immensely popular online games in the 21st century. The multiplayer online battle video game is published by Riot Games (\u201cRiot\u201d) and soon became the most played personal computer games (PC games) in North America and Europe[1] with over 67 million active players per month and 7.5 million players online at the same time at its peak.[2] The popularity of the game stimulated revolutionary change to the whole gaming industry as 12 top-tier leagues are formed all over the world and three major international tournaments held yearly.<\/p>\n

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league of legends<\/span><\/a> by downloadsource.fr<\/a><\/span><\/span>\u00a0is licensed under\u00a0CC BY 2.0<\/span><\/a><\/span><\/h5>\n

In the game, players undertake the role of \u201csummoner\u201d and battle against opposing team (which can be formed by other players or computer-controlled depending on modes) with their own \u201cchampion\u201d, special creatures that are summoned to fight. The overall goal is to destroy the opposing team\u2019s \u201cnexus\u201d through five players\u2019 communication and cooperation.<\/p>\n

The broadcasting and streaming of the gameplay become a new category of online video on platforms such as YouTube, Twitch and Azubu. Seeing this high demand from spectators to watch other players in action, Riot further introduced the \u201cSpectator Mode\u201d (also known as \u201cObserver\u201d) to the game. The Spectator Mode allows players to watch gameplays of their friends from a bird\u2019s eye view without the hinder of the \u201cfog of war,\u201d and new players may therefore learn and exchange ideas regarding the strategy their friends used. The player watching from the side line is called a \u201cspectator.\u201d<\/p>\n

The only requirement for a spectator to observe a particular game play is that one of the ten players in that gameplay is his\/her\u201d friend\u201d on LoL (adding a \u201cfriend\u201d on LoL is as easy as adding one on Facebook). The spectator may then record or stream the game to other players on Youtube or Twitch. The built-in capability of spectating and streaming gameplays of others means a player\u2019s game may potentially be broadcasted by strangers without his or her awareness.<\/p>\n

The combination of Spectator Mode and streaming saw unprecedented popularity on online streaming platforms, and this works to Riot\u2019 s benefit.<\/p>\n

To grow an even bigger fan base, Riot \u201cgenerously\u201d authorised all players to use LoL intellectual property so long as the usage does not generate any revenue besides advertising income through a public announcement.[3] From a legal perspective, the copyrightable elements in the gameplay (the canvas, the avatar designs and the programmed special effects, etc.) belongs to the developer (Riot), even if the players contributed to change the overall performance and consequence.[4]<\/p>\n

Riot\u2019s public announcement seemed to have given all the streaming videos, including those broadcast through the Spectator Mode, a public license to use LoL\u2019s intellectual property free of charge. However, only a few lines after the seemingly generous public license, Riot puts in one clause that may function to entirely annul the public license (thereafter refers as \u201cthe catchall exception\u201d), \u201cRiot reserves all rights to deny the use of the IP at any time, for any reason or no reason.\u201d[5]<\/p>\n

The introduction of the Spectator Mode and streaming capability in the fast evolving gaming industry, introduced novel legal issues that are illustrated below.<\/p>\n

Some LoL players have turned pro, and through skill and character, attracted many fans. LoL professional e-sport teams formed in China and Korea are eager to capitalize on their professional players\u2019 skill and popularity, and enter into exclusive broadcasting contracts with online streaming platforms.<\/p>\n

These exclusive broadcasting arrangements show some incompatibility with the LoL public license as demonstrated in the \u201cSpectateFaker case.\u201d The Korean e-sport team SKTelecom T1\u2019s player Lee Sang-Hyeok (Faker) is one of the top-ranking e-sport players in the LoL profession. In September 2014, Korean E-sport Association (KeSPA) signed the contract under which all the SKTelecom T1\u2019s gameplay would be exclusively streamed on the Azubu platform. The contractual obligation extends to all the players of the team including Faker.<\/p>\n

StarLordLucian, a player unrelated to Faker or KeSPA, systematically streamed and rebroadcasted Faker\u2019s solo-queue games through the Spectator Mode to another online platform, Twitch, and named the channel SpectateFaker. Users may view the SpectateFaker free of charge.<\/p>\n

Azubu, after spotting the channel, informed Twitch that according to Digital Millennium Copyright Act (DMCA), SpectateFaker has infringed their exclusive right under contract to stream the gameplay of Faker\u2019s and Twitch responded by shutting down the channel. The reason behind the expeditious reaction of Twitch is said to be the safe harbour provision of the DMCA (17 U.S. Code \u00a7 512) which protects the online streaming platforms from civil liability of infringing rights as long as they are unaware of the fact or acting \u201cexpeditiously to remove or disable access to the infringing material\u201d once identified.[6]<\/p>\n

Riot then chimed in and invoked the \u201ccatch-all exception\u201d to shut down SpectateFaker, the official reason given by Riot was that the SpectateFacter channel was \u201ccausing harm to individual players.\u201d[7]<\/p>\n

Although the channel is currently shutdown, these questions remain: (1) Whose copyright has the SpectateFaker infringed? (2) Do Faker\/KeSPA have any copyright or performance right in their gameplay? (3) Whose interests were actually harmed by the SpectateFaker channel?<\/p>\n

The SpectateFaker channel was provided free of charge, and complied with all the conditions under LoL\u2019s public license to its IP. On the other hand, Riot invoked the \u201ccatch-all exception\u201d clause and argued that the SpectateFaker channel caused harm to Faker. This arbitrary action raises two further questions: (1) Is the \u201ccatchall exception\u201d valid under law? (2) Even if the answer is yes, would the takedown of the Spectate Faker channel be a harmful precedent that looms over all channel owners who broadcast LoL content?<\/p>\n

In its form, the Riot LoL IP license appears to be a public license made to all its users; it is more similar to the \u201cstandard form contract\u201d because its terms and conditions are set on a take-it-or-leave- it basis. Unconscionable contract provisions may be deemed invalid under laws in certain jurisdictions.<\/p>\n

In Taiwan, the Civil Code Art 247(1) prescribed that if this sort of contractual term is meant to restrict the right of the other party or has negative effect on him, the term will be invalid if it is obviously unfair. A similar concept is also found in common law. The idea of \u201cunconscionability\u201d which also meant to prevent the abuse of bargaining power and the disadvantage position that the other party is put.[8]<\/p>\n

Riot\u2019s \u201ccatch-all exception\u201d may fall within the scope of the concept because it restricts the authorised right to the broadcaster without any specifications.<\/p>\n

One may counter-argue that the streaming broadcasters do not pay any licensing fee to Riot, and therefore, because of the lack of consideration, the Riot IP license seems to be a generous giveaway rather than the contractual arrangement. By legal definition, however, the consideration of an arrangement can also be the benefit that is enjoyed by the other party. In the current case such benefit would be the popularity and the free promotion that Riot gained by all streaming videos.[9] It is therefore more likely to be deemed as a contract and the doctrine of unconscionability and unfair terms or the Civil Code shall apply.<\/p>\n

Put aside all complicated legal jargons, one still cannot see the legitimacy or reasonableness of the fundamental clause that stabbed the SpectateFaker channel. The generally conceived LoL virtual ecosystem consists of not only of the game itself, but all players, gameplays, and the idea of sharing and exchanging. The prosperous streaming channels further promoted the game to its current unprecedented level; there is simply no game which has ever been so widely broadcasted, discussed, or even used to formal competition like LoL. It is no exaggeration to say that LoL has already reached and ushered a new trend in the gaming industry. The catchall exception clause makes Riot tremendously powerful, and puts the whole LoL ecosystem under a threat that a channel can be required to shut down any time at Riot\u2019s whim.<\/p>\n

Imagine you are spectating an extremely good battle that you simply have never done with your teammates, and the excitement prompt you to share and broadcast the video online, however, one of the ten engaging players or even any of other spectators called foul and report to Riot. Can Riot be trusted to provide a fair adjudication? Their handling of the SpectateFaker case, and lacking of any public guidelines for channels cast doubts on this option. You and your channel then is put into a difficult position that may be shut down \u201cat any time by any reason or no reason.\u201d Similar situation can even happen when you stream your own gameplays which you have engaged as a summoner.<\/p>\n

Digital Millennium Copyright Act (DMCA) is notorious for the previous mentioned \u201csafe harbour provision\u201d. 17 U.S. Code \u00a7 512 prescribes that online platforms will not be accused of right infringement if they are unaware of or act \u201cexpeditiously\u201d after knowing the fact. The clause is aimed to give online platforms such as Twitch a room of respite since it is difficult for them to have detailed knowledge regarding every of the thousands of videos streaming on their platform. However, the provision is simply too general and fail to provide any specific guidelines which leads to the result that all online platforms utilize it to shrug responsibilities off. An iconic example is also illustrated by Twitch; they have a specific DMCA Guidelines[10] on their website which says that they will \u201cpromptly terminate without notice\u201d to the reported infringements. Streaming channels including SpectateFaker may be absolutely legal and legitimate, nevertheless, due to the policy under DMCA of Twitch, they may be shut down at any time without notice because of any anonymous report. When mighty power is prescribed in broad and general terms, it simply provides no restrictions at all and everything depends on the whim of the wielder of power. This bears astonishing resemblance with the current discussion of the LoL in that if Riot have \u201ccatch-all clause\u201d for such an important power, the silence effect of the DMCA is highly likely to be replicated.<\/p>\n

The catchall clause is susceptible to abuse, and it may not only hurt the freedom of expression of players in promoting their own game plays, but also the genuinely fundamental idea of sharing and exchange that lies in the heart of LoL. Riot, as the creator of the game, should reconsider whether protecting its commercial partners\u2019 benefit is worth costing the cornerstone of the game.<\/p>\n

[1] Gaudiosi, John (2012) Riot Games’ League Of Legends Officially Becomes Most Played PC Game In The World, http:\/\/www.forbes.com\/sites\/johngaudiosi\/2012\/07\/11\/riot-games-league-of-legends-officially-becomes-most-played-pc-game-in-the-world\/#51f1ae7c6ae2 (Jul 11 2012)
\n[2] Sheer, Ian (2014) Player Tally for \u201cLeague of Legends\u201d Surges, http:\/\/blogs.wsj.com\/digits\/2014\/01\/27\/player-tally-for-league-of-legends-surges\/ (Jan 27 2014)
\n[3] Riot Games FAQ and Guidelines for the Community\u2019s Use of Our Intellectual Property,
\nhttp:\/\/www.riotgames.com\/legal-jibber-jabber
\n[4] The Copyright Act (17 USC \u00a7 106) prescribes that the copyright holders have the exclusive right to \u201cpublicly perform the work and to reproduce copies of the work\u201d while they can also grant licenses to others to use the protected work.
\n[5] Riot Games FAQ and Guidelines for the Community\u2019s Use of Our Intellectual Property,
\nhttp:\/\/www.riotgames.com\/legal-jibber-jabber
\n[6] Blum, Bryce (2015) An esports lawyer breaks down everything you need to know in the SpectateFaker case http:\/\/www.dailydot.com\/esports\/dmca-faker-azubu-twitch-riot\/ (22 Feb 2015)
\n[7] TRYNDAMERE SpectateFaker – what we learned and what we\u2019ll do http:\/\/na.leagueoflegends.com\/en\/news\/riot-games\/announcements\/spectatefaker-what-we-learned-and-what-well-do
\n[8] See Commercial Bank of Australia v Amadio (1983) 151 CLR 447
\n[9] See also Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256
\n[10] Twitch Digital Millennium Copyright Act Notification Guidelines https:\/\/www.twitch.tv\/p\/dmca-guidelines<\/h6>\n

Extensive Readings:<\/p>\n