TotalBiscuit and the Revenge of the Devs - a tale of copyright, censorship and creators' rights

If, for the past couple of days, you’ve been anywhere on the internet that even remotely has to do with gaming or the noble craft of online video creation, you’ve likely heard of the move indie developer Wild Game Studios tried to pull on youtuber TotalBiscuit, using YouTube’s copyright infringement reporting system to effectively censor the critic’s video of their game because they did not like what it had to say. When TotalBiscuit called them out, it created a very public stink, and this is a good thing, because it shows people are starting to pay attention to an issue that’s far too long been ignored. Let’s talk about it a bit, shall we?

To say YouTube’s copyright policies are biased would be an understatement. They’re a flawed system, based on flawed copyright laws, and both almost exclusively grant protection to big copyright holders, and almost none to small content producers who might use copyrighted content in what by rights qualifies as fair use – parody, commentary, critique, and other protected uses, to say nothing of newly-formed gray areas such as “let’s play” game videos where the interactive nature of the content makes it as much a production of the video creator as of the game developer.

totalbiscuit copyright

Freedom of Speech is a registered trademark of the United States Government

Either by reason of greed or simply a lack of understanding of how Internet media has evolved, YouTube content creators get consistently shafted by automatic, bogus or downright fraudulent copyright claims. Three copyright infringement claims, which are acted upon with no examination by YouTube, and the user’s channel gets shut down permanently, with little possibility of appeal unless one belongs to content creator networks, and even then the problem is only partially mitigated.

Automated and indiscriminate copyright claims also prevent monetization of videos made up of otherwise original content which contain small snippets of copyrighted works used for commentary purposes, denying legitimate income to content producers for something that did not commit any infringement, again with no way to appeal to YouTube. This can lead to absurd situations like that where a three hour podcast of original content has one minute of a trailer from an industry game, and the copyright holder gets all ad revenue for the video, despite it being the original work of the authors involved.

This status quo actively discourages youtubers to produce high quality content, since quality takes time and resources to make, and if they cannot reliably earn a livelihood off their work, there is no incentive to make it at all. This in turn hurts copyright holders, content producers and viewers alike as the participatory role of online communities in general (and YouTube in particular) has increased exponentially in the last few years; from the way online reviewers and commentators like Rev3Games, Angry Joe and TotalBiscuit can single-handedly be responsible for the success of small indie games through the exposure they grant, to the unlikely success story of a cartoon like My Little Pony: Friendship is Magic, whose massive popularity (and ratings, and toy sales) was ignited and is sustained by the constant flow of fan-produced content of all kinds, which has gone well beyond the scope of the original IP. Educational content producers are affected by ill-defined and unclear copyright laws as well; Vi Hart on YouTube has to tread lightly and cannot risk using classical composers in her video about the mathematics of music, even though education is protected use. Many music makers like Lindsey Stirling or Peter Hollens who use samples or produce remixes are in the same boat. I could go on.

Vihart The Mathemusician

YouTube educational video creator, musician and mathematician Vi Hart

Without creative consumer participation popular media, be it in the form of movies, animation, or video games, would not be the same. This participation is the living, breathing pulse of the people, giving organic, immediate feedback on the quality of an intellectual property, based on the interest and commentary it garners, and the way it inspires others to create in turn. Sadly, copyright law at all three levels – international, national, and YouTube policy – seems to do its best to work against this new current, seeing it as a threat to the party it is most interested in protecting, the pockets of big companies. But this article does not wish to devolve into a diatribe against “the man”, but instead points out how the system in place fails to achieve even its intended purpose, instead making it easy for abuse and censorship to take place under the guise of copyright protection. Which brings us to the recent news:


The TotalBiscuit Incident

Normally the issues mentioned above slip under the radar because they happen to small content producers with no way to publicly voice their tribulations. Recently however, John Bain, the game commentator known on YouTube as TotalBiscuit (or the Cynical Brit), happened to do a critique for a first-person survival game called Day One: Garry’s Incident, as part of his “WTF is…” series of first-look videos. The game, made despite a failed Kickstarter campaign by Wild Game Studios, and released on Steam Greenlight along with questionable reviews there and on Metacritic, received harsh critique from Bain.

TotalBiscuit had received a digital Steam key from the studio specifically for review purposes, and furthermore Wild Game Studios had publicly encouraged players to make YouTube videos of their game; despite this, three weeks after the critique video went up, the studio filed a standard copyright infringement claim and had it taken down, which was then justified by Wild Game Studios head Stephane woods on the Steam forums, who said “We protected our copyright because TotalBiscuit has no right to make advertising revenues with our license.”

Day One Garys Incident

Leaving aside the fact that no such claim would ever stand a snowball’s chance in hell if it were made against a print publication or major site like IGN for making money off their reviews, or the fact that the studio themselves gave explicit permission to a commercial YouTube content creator to review their game, why was this claim filed three weeks against TotalBiscuit and only him, three weeks after the video was on? Because it had the most views and the greatest exposure, and was potentially the most damaging to their shoddy game’s falsely constructed image. It was no more and no less than censorship, made possible by the poorly devised infringement report system in place today.

After TotalBiscuit published a video exposing these events (shown below) and provoking media attention and heated discussions online, Stephane Woods backed down, retracting his copyright claim. “After seeing all the negative impact today we decided to withdraw our complaint to YouTube”, said Woods in a statement.


What now?

This is not, and should not be the end however. What happened with TotalBiscuit is just one, thankfully publicized, example of the kind of injustice that can be perpetrated under current regulations. Many others have gone and will continue to go unnoticed and uncorrected until the situation improves. Small content creators who have no backing from one of the larger networks like Polaris (to which Bain belongs) or its parent Maker Studios, time and again get the short end of the stick – their videos taken down, their monetization denied, their channels shut down, despite their use of copyrighted material being legal and, moreover, technically protected by law.  

Since this is an issue that most directly addresses online communities, it is together with them that a solution should be devised. The SOPA and PIPA protests have shown the power grassroots lobbying can have even on international legislators, but it is not enough. It is one thing to get a large number of people to block an event, another altogether to unite them towards a proactive goal. However, the developing online communities’ principles, with an emphasis on freedom of expression and open-source mentalities have led to general adoption of equitable standards before, such as the Creative Commons licenses.

EFF PosseI believe that the solution for developing and applying fair and up-to-date copyright laws governing online video creation should involve both law and policy makers, as well as digital rights activists like the Electronic Frontier Foundation, working together to develop new legislature and regulations. There should be legal measures in place to give content creators more agency, and a right of defense, as well as official representation by organizations like the EFF, to speak for those creators too small to have a voice otherwise.

However this can only happen if there is sufficient public demand. Awareness must be raised, and the TotalBiscuit incident is a good starting point. Do not let this discussion die down; contact digital rights groups like the EFF, the Free Software Foundation, or the UK-Based Open Rights Group. Tell them about this incident and others like it, and ask them to lobby to legislators. Finally, lend them your support in doing this by contacting your political representatives as well as YouTube themselves. Make your voice heard, this matter affects us all, and the way it evolves could determine the future path of online media. 

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