The assertion is gamers only own a license to the game, and all rights are reserved by the developer of the software. That is absolutely correct, but only insomuch as the developer wrote and owns the computer code that is the game. Developers do not own the game play itself anymore than the World Soccer League owns all the bars making a boatload of money off the World Cup. By Fish's logic all those bars would have to pay Brazil most of their profits from the sale of beer, etc. That's ludicrous logic.
But let's assume for a moment there is a possible copyright issue here. Let's assume by playing through the pre-programmed outcomes in a computer game and creating a YouTube video, you may indeed be pirating said content. How's a person to know if what they are doing is legal or not? In a term, it's called Fair Use, at least in the United States. Elsewhere it's called Fair Deal and other things, but the principles are the same. I'll write specifically about the United States though, as that's where I'm from and those are the laws with which I am most familiar.
In the U.S., Fair Use is the balance to Copyright. It ensures artists and others are free to create without hindrance from those who would prevent such creativity simply because it's not their own creativity. The U.S. constitution actually recognizes that a balanced copyright law is beneficial to the economy. It uses Fair Use to ensure new and creative ideas have an opportunity to grow and benefit society as a whole, when those who do not have creative panache seek to eliminate the competition through more heavy-handed measures. It's the creativity version of the Sherman Antitrust Act if you would. And just like any anti-trust legislation, infractions are decided on a case by case basis.
There is a decent primer about Fair Use on Wikipedia, though it only applies to the U.S. really. You should head over there and familiarize yourself with it, especially if you make gaming videos or write blogs that include screenshots from the games you play. It basically outlines four questions a court must answer to determine if Fair Use applies, or if Copyright law has precedent. The four questions are:
- What is the purpose and the character of the use of copyrighted material?
- What is the nature of the copyrighted work?
- What is the amount and substantiality of the portion of copyrighted material used?
- What effect does the use of the copyrighted material have on the potential market value of the copyrighted work?
These are the four questions you should keep in mind as you blog about games and make videos of them. Here is my thinking to insure I stay on the correct side of Fair Use.
First off, I don't make a single penny, or even a fraction of a penny, off anything I do. This is my hobby. I do it for fun. Making work out of it takes away the fun. That is the purpose and character of what I do. Any court out there will see I do not make money off what I do. That's not a sure defense against being shut down, it only shows my purpose is not to harm the copyright holder. But that's not really what this first test is about. This first test is more a measure of whether I am creating something unique and valuable in and of itself, or if my work is derivative of the copyrighted work without its own merit. I'd like to think my work is unique and valuable of itself. That's one reason I don't make just videos, or just do screen shots, or just play one game. The more I show what I do has its own merit, the further away I get from copyright infringement. The bottom line here is, add value with what you do. Don't be a copycat.
The next consideration is the nature of the copyrighted work. I've already mentioned above my thoughts on that. The code which makes the game is the copyrighted material, not the game play itself. Game play is an idea, derived from the player at the time the game is played. It's like an impromptu music jam session. The music does not exist until the musician plays it, though certain chords and riffs may be similar to others already played. It is artistic expression at its finest. U.S. courts have ruled very clearly on this issue. Artistic expression and creativity cannot be copyrighted, only the concrete works that manifest themselves from such endeavors. That's a difficult concept to grasp. It is for me at least. I see it thus. How I accomplish a quest is my idea of how it should be done, made up on the spot and most certainly not reproducible by anyone else exactly as I did it. Furthermore, it is not the only solution. There are as many possible solutions as there are unique character builds and people with ideas on how to accomplish the quest. In order for a developer to claim copyright on such creativity, they would have to determine every possible way to complete a given quest. I doubt any developer out there has ever bothered. In that regard, because the copyrighted material is created with such a wide range of variability built-in, the nature of the work is to allow these variations to be played out - bragging rights included. In short, that's the purpose of games. As that is their character, vlogging is a logical extension of that purpose.
Next the courts consider how much of the copyrighted work has been used. For certain, I never use an entire sequence if I'm making a game play video out of it. For example, in my last quest video for The Elder Scrolls Online, TESO: Taking Down Reezal Jul, there are many things I did during that portion of the overall game which did not make it into the final cut of the video. I did not use ALL the video content of the game, as my intent is to give an example of one way the quest can be completed. To that end, I only covered salient moments. The rest I leave for the watcher to discover on their own. Now, if I were to stream the game from beginning to end, then perhaps I have used too much of the material and could fail this test. By limiting the amount of material used, it is no different from quoting a passage from a popular book for the purposes of critique - a protected fair use endeavor. Just make certain that you don't use too much, and you should be fine.
Lastly there is the consideration of effecting the value of the copyrighted material. You know, claiming vloggers deflate the value of a game title is like claiming Twitch.tv makes no money off League of Legends (LoL) tournaments. LoL is all streaming all the time, and such a claim would be seen as delusional at best. Hell, vlogging is free advertising! A game developer has to do absolutely nothing to get it. Legally there is no difference between the corporation Twitch.tv, and the vloggers using it. In fact, the vloggers may be in a better position as they are the creative talent behind the "works" being shown. But the courts aren't really concerned with whether the developer gets free advertising or not. They have to determine if the activity in question lowers the inherent value of the copyrighted property. And since the vast majority of developers actually embrace vlogging, I'd have to say it doesn't decrease a damn cent. If it did, they'd be suing every vlogger from here to Sunday. That just isn't happening. Twitch.tv is openly embraced by most developers. YouTube has special dispensation as well. Hell, it's harder to get a music soundtrack onto your YouTube game play video than it is to get the video itself posted. When an entire industry seems to be turning a blind eye to an activity, it's hard for the courts to see it has harmful.
Vloggers like Pew Die Pie and Scott Manley, they are not copying games. They are creating artistic expressions of a new vibrant trend in society. I do not watch those two so much for the games they are playing, but to be entertained by them while they play. They are actors upon a stage creating works of expression that otherwise would not exist. That alone has enough merit in my opinion to qualify as Fair Use. But you know, these are only my opinions. I am not a Judge nor a lawyer. Still, I have a modicum of common sense, and that common sense tells me people like Phil Fish are just sour grapes. The fact the gaming industry is booming (and here, and here, and here,) vloggers and all, really puts his sour grapes into perspective. If he were half as creative as he thinks he is, he'd be making bank off the very thing he's complaining about - like every other successful video game developer. Have a look at Robert's Space Industries. They are completely crowd sourced and going strong on the very thing Fish abhors. If there is a threat to the future of the gaming industry, it isn't YouTubers. It's the people in the game industry who can't cope with the reality of the 21st century. They will fade into oblivion because Fair Use has your back (within reason.)