"Digital Homicide Studio" Abuses DMCA To Lash Out At Reviewer Jim Sterling, Gets Fair Use Wrong

Frivolous abuse of the Digital Millennium Copyright Act is nothing new. We've seen fake poets, manufacturers,purveyors of anatomically impossible boobs, sociopathic revenge-pornsters, and legbreakers for totalitarian governments make false claims of copyright violations in an effort to censor online criticism.

So why should we be surprised that a computer game designer would abuse a DMCA takedown request to silence a negative review?

The designers and developers are Digital Homicide Studios and Imminent Uprising. They're pushing a game called The Slaughtering Grounds. Its premise is simple: there are zombies, and you must shoot them, repeatedly.

The negative review was courtesy of Jim Sterling, a game reviewer who has, as one apparently must, a YouTube channel. Mr. Sterling did not like the game, and recorded a fairly brutal video review. Digital Homicide Studios reacted by leaping headlong into a shame spiral, first releasing its own angry video review of Sterling's video review, which consisted of Sterling's video review with mean captions. Sterling reviewed that. Then, because we live in an era where everything has to be shoved up its own ass, Digital Homicide issued a unsettling ranty review of the review of the review, posting angry text over audio of Sterling's latest.

At this point it's clear that the folks at Digital Homicide do not have a full grip of their emotions and nobody is there to slap them and get them to step back from the precipice. Sure enough, they filed a DMCA notice with YouTube claiming that Sterling's original review violated their copyright. They defense of this action was . . . odd:

The DMCA filed is not to censor review’s [sic], there are countless negative review videos posted(including multiple sterling videos) and only one in particular with a DMCA filed on it. The reason is we have a legitimate claim, we can prove a violation of our copyright(fair use is not blanket immunity) and damages.

Hmm. Not very illuminating. So I wrote to Digital Homicide Studios and to one of its executives, James Romine. Mr. Romine wrote back, directing me to a blog post that would answer all my questions, and saying that they are "currently looking for a copyright attorney." I had time to read that post once before somebody — presumably Mr. Romine — memory-holed it. Fortunately someone on Steam had a quick trigger-finger and copied their justification:

Let’s get to the heart of it, right from the start. Here are some examples I would like to propose as a basis for an unbiased point of view from the reader.

I read 10 pages of a 100 page book
I watch 10 minutes of a 100 minute movie
I listen to 18 seconds of a 180 second song
I use 10% of the features of a product

After doing this I label any of the above “WORST (insert object) OF 2014 CONTENDER!” The next sentence I describe said object as an “Absolute Failure“. Lets evaluate what the impact of this statement is by looking at the definition of absolute: not qualified or diminished in anyway; Total. Again with this in mind lets examine what is being said here. After watching, reading, playing 10% of a product I label it as an “Absolute or Total” failure. In labeling a product as an Absolute or total failure, I would need to evaluate all aspects of what i’m describing or this could be considered unfair or unreasonable.

This brings us to the Fair Use Doctrine. Criticism and parodies are highly protected by the fair use doctrine. However, when using criticism one must be fair and reasonable to be protected by it’s articles. While negative criticism could be deemed reasonable is the manner in which the criticism presented fair? Herein lies our DMCA complaint and our case we will be presenting in court. With the above in mind, we will be presenting a violation of our copyright based on the following:

In the sole instance of Jim Sterling’s “Squirty Play” video, we find the usage of the terms “WORST GAME OF 2014 CONTENDER!” and “Absolute Failure” to describe the entirety of our product while not actually evaluating it in its entirety unfair and unreasonable use of our copyright material.

While the reader may disagree with our claim, we believe the unbiased perspective of a court will agree there has been a violation of our copyright and for this reason we will be pursuing an attorney and proceeding with our complaint.

Digital Homicide Studios

Also, do not misinterpret this as an act of censoring criticism in general. If Jim Sterling had labeled our product “Absolute Failure” while doing a full evaluation of our product, this might be considered a fair and reasonable use of criticism regardless of how we feel about it personally. This claim is not about censoring “negative” criticism, this claim is about executing criticism in a fair and reasonable manner."

Let me be clear: this is utter bollocks. Perhaps you could argue that this is what the Fair Use doctrine should be, but it is not.

Criticism, satire, and parody are at the heart of fair use. The "fair" in Fair Use refers to the idea that it is fundamentally fair to allow someone to make partial use of my copyrighted for for purposes of criticism, satire, and parody. It does not, as Digital Homicide Studios seems to think, involve an inquiry into whether the criticism or parody or satire is "fair" from a literary point of view. Nor could it. Judges are ill-equipped to decide when a satire or criticism is "fair" or "unfair" in a lit-crit-the-critic sense, and such an inquiry involves an unacceptable value judgment about the user's free expression. Moreover, such a rule is completely useless in practice: critics, satirists, and others would have no idea whether Fair Use will ultimately protect them or not, because it will depend upon a subjective post-hoc determination of whether the critic or satirist was "fair" or not.

You can see a good example of this point in Michael Savage v. Council on American-Islamic Relations. Seven years ago I wrote about how Savage — an excitable radio-host and opinion-pornster — sued CAIR for quoting him in order to illustrate anti-Islamic sentiment in America.
The United States District Court for the Northern District of California granted judgment on the pleadings to CAIR on Savage's copyright claim, finding that their Fair Use defense was established by the pleadings themselves. In doing so the court pointed out that the relevant Fair Use inquiry is not the motive of the critic, but the critical nature of the usage. The Court rejected Savage's argument that CAIR's use was not Fair Use because CAIR's motive was to raise funds by pointing to Savage's bigotry:

Plaintiff argues that the fair use defense is inapplicable to defendants' usage of, and comment on, segments of the copyrighted audio work because defendants' “infringement was not done for genuine criticism or comment,” but instead misrepresented plaintiff's views with the intention to raise funds for their own political purposes as “a foreign agent for international terror” under the guise of a non-profit, civil rights group. Plaintiff's Opposition at 5-7; see SAC at ¶¶ 24, 28-30, 32. Plaintiff asserts that these alleged motives behind the usage and comment are fatal to defendants' fair use defense because fair use presupposes good faith and fair dealing.

. . . .

Plaintiff tries to conflate “motive” with the purpose and character of the use, which is not permitted by the case law. Rather, even assuming the truth of plaintiff's allegations about motive, it is the manner of use, not the motivation behind it, which must be analyzed: “what use was made,” rather than “who is the user.” Savage v. Council on Am.-Islamic Relations, Inc., No. C 07-6076 SI, 2008 WL 2951281, at *4-6 (N.D. Cal. July 25, 2008)

Similarly, courts have typically rejected artists' claims that a review or parody wasn't protected by fair use because it had errors of transcription or it took materials out of the context of the whole work:

Furthermore, as a judicial body, we consider it highly undesirable to hinge a legal determination solely on the relative truth or accuracy of statements made in the context of debate on a highly volatile social issue. See New York Times Co. v. Sullivan, 376 U.S. 254, 278-83, 84 S.Ct. 710, 725-28, 11 L.Ed.2d 686 (1964). Nor do we think it wise to give much legal relevance to whether the allegedly infringing work may be labeled “scholarly” or “dogmatic,” for the dogma of one individual may be the original scholarship of another. Only where the distortions were so deliberate, and so misrepresentative of the original work that no reasonable person could find them to be the product of mere carelessness would we incline toward rejecting a fair use claim. The errors in Rachel Weeping do not cross that threshold. Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1261 (2d Cir. 1986)

In short, Digital Homicide Studios' legal theory doesn't find support in the actual law.

Sterling has filed a DMCA counter-notice asserting that his use is covered by Fair Use. It will be interesting to see what Digital Homicide Studios does from here. Can they find an attorney addled enough to sue over their meritless claim? This is America, so they probably can. But they should consider this: they've given Sterling's criticism vastly more attention than it otherwise would have enjoyed, and they've associated themselves in the minds of the gaming community not with killing zombies but with censorious tantrums. They need a grown-up, stat.

Last 5 posts by Ken White

Comments

  1. Jack B. says

    They're pushing a game called The Slaughtering Grounds. Its premise is simple: there are zombies, and you must shoot them, repeatedly.

    Way to bury the lede, Ken.

    You mean to tell me someone's making a game where you kill zombies?!? This is going to revolutionize the gaming industry.

  2. says

    This is not the first time Jim Sterling has had a DMCA claim against one of his videos this year. He made this video about the previous one:
    http://youtu.be/uWAS0zc_S8Y

    The previous one was just a DMCA claim. It didn't come with any crazy, so it only gave Jim Sterling an opportunity to talk about how suicidal a move such claims are.

  3. GuestPoster says

    Huh. For the first time in months, an issue rises to the public awareness that is ACTUALLY about ethics in video game journalism! …sadly, the group that makes a almost-reasonable-sounding claim of lack-of-ethics (i.e. using certain verbiage in relation to a work that one has not fully experienced) has chosen to take this issue to a court of law, rather than the court of public opinion.

    A much more effective reply might have been a link or 3 to other videos, with different conclusions, and a short passive-aggressive entry: "Hey Jim, looks like people who got past the first 3 minutes just love the game. Maybe you'd be better off with a shorter game, like tic-tac-toe?"

    Alas, as the column mentions, the ACTUAL reply to the review will probably simply serve to draw more attention to it (although maybe they are trying a marketing ploy to get people to buy a game they never would have heard of otherwise out of sheer morbid curiosity? Who knows).

  4. Guesting says

    Same happen with SEGA a while ago. All this big publishers, big and indie devs thinking their above everyone is getting too common.

  5. Andrew says

    @Guesting

    SEGA's incident was a little different. They issued indiscriminate, mass DMCAs against everyone, critics and non-critics alike. They were only censorious by accident. That doesn't make what they did OK, by any means, but the motivation was different. Trying to shut down only people who say bad things about your stuff is not the same thing as trying to prevent anyone from using your stuff at all.

  6. melK says

    "So you're telling me that criticizing your game is not fair use because of the portions of the game that I used…

    … but that using the entirety of my review is valid critical fair use?"

    If DHS (I see what they did there!) goes to court, they might well have a problem there. … after they get the slap down on other grounds.

  7. Dan Weber says

    There could be an actual copyright violation if you display too much of the original project in your review. I can't do a "review" of Interstellar by showing the entire first half of it and talking about how much the acting sucks in every scene.

    But that doesn't seem to be the complaint.

  8. says

    Nothing tells the world that you have a quality product quite like bullying anyone who says something bad about it. Those guys must be marketing geniuses.

  9. says

    They took Sterling's video review and added their own captions – surely that's a violation of HIS copyright. After all they did it to be mean, so it's not "fair" use according to them. I know this is BS legally, but it would be sweet karma if Sterling filed a DCMA takedown notice on their review of his review!

  10. Bilateralrope says

    @Dan Hill
    The developer already took down their videos. There is nothing left up for Sterling to file a DMCA against.

    Plus the usual karmic retribution for DMCA abuse is the developer closing. Because the publicity made everyone aware just how crap the game is, and how much of an asshat the developer is, so nobody buys it.

  11. says

    The reviews of the game on Steam are pretty damning. According to one reviewer, the "objective" of the game is to survive for 15 minutes, after which you just go back to the beginning. There's supposedly only one stage. The claim that he didn't review enough of the game is mind-boggling given how short the game appears to actually be.

    http://store.steampowered.com/app/329950/

  12. DRJlaw says

    @Dan Hill

    You won't score the sort of points that you want by adopting your opponent's brand of crazy and dragging others into it.

    Unfortunately, it takes a good observer to appreciate that you've taken the high road. Even if things escalate into court. Judges are busy, busy people. They don't want to deal with unnecessary crap simply because you want to make a point about how immensely hypocritical your opponent is. They want litigants to focus on the issue. Most of the time you can't do that while sticking it to the other guy. Instead, you explain why your's opponent's brand of crazy is simply wrong, or unworkable, or a sure-fire ticket to a dystopia that no reasonable legislator intended.

    Now juries, on the other hand, love a good cross examination, and briefly raising the unnecessary crap can be an effective way to demolish credibility. For example, "If the review by defendant was such a blatant and unfair infringement of copyright, then what, pray tell, were you thinking when you posted your own review of the review?" (Note: that is far too open-ended a question to actually ask, but gets the general point across).

  13. albert says

    DHS has more than one executive? Color me astonished!

    This is the root of their argument:
    .
    "… However, when using criticism one must be fair and reasonable to be protected by it’s articles…."
    .
    So that's what the "fair" in 'fair use' means?
    Please, someone tell me they're not serious about this. I'll admit, I would LOVE to see what a case filing would look like.
    .
    I gotta go…

  14. Alexander says

    "The reviews of the game on Steam are pretty damning. According to one reviewer, the "objective" of the game is to survive for 15 minutes, after which you just go back to the beginning. There's supposedly only one stage. The claim that he didn't review enough of the game is mind-boggling given how short the game appears to actually be."

    According to the developer (during his "Review the Reviewer" video where he parodied Jim Sterling), his game has three unique stage, three playable characters and two play option (single-player & multiplayer). During Jim's "first impressions" play-through (it was not intended as a full game review) Jim played ten minutes in one stage of single player and tried out the first character which is the only one unlocked at the start.

    While you could argue that he missed a lot of available content, I don't think you will find many people who are able to say it would have made a significant difference. Based on one in-depth user review, the characters and stages are pretty interchangeable and multiplayer is essentially the same as single player except for the addition of occasional boss fights.

    Sometimes first impressions are all you need to accurately rate a game.

  15. Yuicne says

    See, i am hoping they take it to court, You want to know why? Jim Sterling is part of Polaris, and who owns Polaris? Disney! Have fun getting drowned in lawyers – TotalBiscuit

  16. Jim Tyre says

    Hmmm.

    I read 10 pages of a 100 page book
    I watch 10 minutes of a 100 minute movie
    I listen to 18 seconds of a 180 second song
    I use 10% of the features of a product

    After doing this I label any of the above “WORST (insert object) OF 2014 CONTENDER!”

    Though having nothing to do with DMCA, that reminds me of:

    As might be supposed I have not had the time, nor may I add the inclination to read through this book. I have, however, read pages 690 to 732….

    With those words on December 29, 1922, Sir Archibald Bodkin, the Director of Public Prosecutions, banned from Britain James Joyce's Ulysses.

  17. JanderPanell says

    STEP 1: Make outrageous (perjurous?) claims about copyright.
    STEP 2: Look for a copyright lawyer.
    STEP 3: ???
    STEP 4: PROFIT!

  18. NickM says

    I guess if the guys at Steam find animal feces in the first 10% of their meal, they should have to eat the other 90% before calling it the worst meal ever.

  19. Fasolt says

    Update to my previous comments. I should have said Digital Homicide Studios are the wankers here and left Steam out of it. Although they could be wankers. I'm not a Steam subscriber, so I don't know.

    So I wrote to Digital Homicide Studios and to one of its executives, James Romine. Mr. Romine wrote back, directing me to a blog post that would answer all my questions, and saying that they are "currently looking for a copyright attorney."

    They should try Ohio, like Dr. Frank "Atavistic" Arguello did. I'm sure there are some firms there that specialize in copyright law, as well as the slander and libel firm that our man Dr. Arguello picked.

  20. babaganusz says

    The reviews of the game on Steam are pretty damning.

    yeah, that's the first time i've ever seen a net 'Very Negative'… and only 50 reviews after more than a week might explain the sensitivity, i.e. they were presumably aware how little of any publicity they'd be garnering…

    and he showed those Steam wankers for what they are.

    i'm glad their 'Curators' setup works like it does, though, or i wouldn't have even heard of Jim (due to his prominence in the Horror genre) until just now.

Trackbacks

  1. […] Let's players and Twitch streamers have solidified their own importance in the video game industry by existing en masse. Thousands of gamers record footage of their gameplay for entertainment, criticism, and posterity, and the law defends this practice. If anything, the laws should be updated to better define the true legalities of this grey space in copyright law, although we all know how slow the law is to catch up with modernity. What is inarguable is that abusing the legal system by issuing false DMCA claims to take down people's creative content because someone doesn't like it is not just bad form, it's illegal under penalty of perjury, as noted by the legal blog PopeHat. […]