Gaming Blog Rails Against The Man, Succumbs to Legal Threats

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bokkiedog:
LDKJ: which Copyright Act is that? And in which country?

The facts of the instant case don't implicate any other country than the United States of America, do they? Why would I be citing to the copyright statutes of some other county? They'd be wholly irrelevant, wouldn't they? And, best that I know, there's only one Copyright Act in the U.S. I can cite to it by USC title and section rather than popular name, if that'll ease your confusion.

bokkiedog:
The threat came from the United States. There, fair use encompasses:

"quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported."

If you cannot see the use of well-attributed illustrative clips within reportage as fair use, then your imagination is more fruitful than mine.

Again, I fear that you are grossly oversimplifying the required analysis. As stated by the U.S. Copyright Office:

"One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of "fair use." The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 [of the Copyright Act] contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."

You may want to go back and rub facts against law one more time. And a bit more thoughtfully this time.

I think I could understand if it was something incredibly valuable to the plot of the game, something that would spoil it if it were revealed in flawed fashion before launch day, or some other information that was intrinsically linked to the projected performance of the finished product. But these are screen shots, and unless they were created purely for marketing purposes and don't actually correlate to realistic gameplay (such as we have become accustomed to lately, see the Call of Duty 2 TV advert fiasco), then it seems both morally questionable and strategically undesirable from a marketing perspective to eek them out to one publication that not everyone in the gaming world partakes in, then threaten legal action on something as transparent as Twitter. However, since Game Informer seems to consist on great big full-page screenshots of upcoming games rather than actual journalism these days, perhaps this tactic is one of self-preservation. On the other hand, the legal ground on which Game Informer and the publishers of the screenshots is pretty much impeccable, and waving around the fact that you lifted information from another publication and credited them improperly is something that, if we can all think back to 12th grade, constitutes plagiarism, bad journalism and douchebaggery in the first degree. Bad decisions all around, let us move on.

JDKJ:
The facts of the instant case don't implicate any other country than the United States of America, do they?

they do indeed, as RPS and Mr. Walker are both based out of England.

GrandmaFunk:

JDKJ:
The facts of the instant case don't implicate any other country than the United States of America, do they?

they do indeed, as RPS and Mr. Walker are both based out of England.

So, too, is Edios. But that doesn't matter. The entity claiming a possible infringement of their copyrights is GameInformer and they're based wholly within the United States. The copyright laws of the UK or the EU aren't at issue here.

when proven wrong, it's always best to claim irrelevancy.

GrandmaFunk:
when proven wrong, it's always best to claim irrelevancy.

How am I wrong? The applicable law in a case of claimed copyright infringement is never the law of the place where the alleged infringing conduct occurred. It is always the law of either the place where the copyright owner is located (if the claim is one of common law copyright) or where the copyright was issued (if the claim is one of statutory copyright law). I think, given the relevant facts of this case, the irrelevancy of any law other than that of the United States is a little more than merely a "claim."

numbersix1979:
I think I could understand if it was something incredibly valuable to the plot of the game, something that would spoil it if it were revealed in flawed fashion before launch day, or some other information that was intrinsically linked to the projected performance of the finished product. But these are screen shots, and unless they were created purely for marketing purposes and don't actually correlate to realistic gameplay (such as we have become accustomed to lately, see the Call of Duty 2 TV advert fiasco), then it seems both morally questionable and strategically undesirable from a marketing perspective to eek them out to one publication that not everyone in the gaming world partakes in, then threaten legal action on something as transparent as Twitter. However, since Game Informer seems to consist on great big full-page screenshots of upcoming games rather than actual journalism these days, perhaps this tactic is one of self-preservation. On the other hand, the legal ground on which Game Informer and the publishers of the screenshots is pretty much impeccable, and waving around the fact that you lifted information from another publication and credited them improperly is something that, if we can all think back to 12th grade, constitutes plagiarism, bad journalism and douchebaggery in the first degree. Bad decisions all around, let us move on.

There is a marketing benefit to the publisher in eking out promotional materials to the media on an exclusive basis. While it inherently reduces the extent of exposure, it potentially increases the effectiveness of the exposure by ensuring that whatever exposure is obtained isn't lost in the crowd. It's kinda like the difference between a shotgun blast and a single bullet. There's greater chance of hitting the prey with the shotgun blast but there's also greater chance of actually killing it with the single bullet. And, of course, the media outlet blessed with the publisher's exclusive grant benefits from the exclusiveness, being the only one with the promotional material. It can make good business sense for all involved.

JDKJ:

LightPurpleLighter:
He didn't exactly rip them off. You said yourself that he gave ample credit for who owned them and where they came from. He didn't try to claim they were his.

He did rip them off. And, to add insult to the injury, he removed the owner's watermark. Just because he didn't expressly claim the images were his doesn't make it any less a rip-off.

Not trying to be a smart ass here, but I really don't see how. He gave them ample credit for it, he didn't make money off it or anything of that nature...Yeah, removing the watermark was a dick move, but does it really count as ripping them off?

LightPurpleLighter:

JDKJ:

LightPurpleLighter:
He didn't exactly rip them off. You said yourself that he gave ample credit for who owned them and where they came from. He didn't try to claim they were his.

He did rip them off. And, to add insult to the injury, he removed the owner's watermark. Just because he didn't expressly claim the images were his doesn't make it any less a rip-off.

Not trying to be a smart ass here, but I really don't see how. He gave them ample credit for it, he didn't make money off it or anything of that nature...Yeah, removing the watermark was a dick move, but does it really count as ripping them off?

It's a close call. Giving credit to the rightful owner doesn't make it a fair use. In fact, giving credit to the rightful owner isn't even one of the factors considered in a fair use analysis. What does tend to suggest a conclusion that it isn't a fair use is the fact that it is a commercial use (i.e., he is indirectly making money off his unauthorized use of the screen shot). If you visit the site, you'll see that it hosts third-party advertising which I assume the site owner is somehow getting paid for hosting. At least, it doesn't look like he's hosting it for free. If he is getting paid for the advertising he's hosting, then any content he posts to the site, including the screen shot at issue, is driving traffic to his site and benefiting him and his advertisers. In that way, he does make money off the screen shot. And making money off the copyrighted works of another suggests that it isn't a fair use but, rather, is an infringing use.

There's also the fact that by using what is a screen shot that the owner has exclusive rights to use, he's substantially undermining the value of those exclusive rights. The value of the exclusiveness is that only the owner has the ability to use the work. If everyone else uses the work, then it's no longer exclusive and whatever value there might have been in exclusive use goes down the drain. This also suggests that the use of the screen shot is not a fair use because another of the factors considered in a fair use analysis is whether or not the secondary use devalues the original work. It this case, I think it does significantly devalue the original work by destroying its exclusiveness.

But as I said, it is a close call. Personally, I'd call it as a rip-off. But I could be wrong. It's not exactly a clear-cut case. There's some room in which to call it a fair use.

If he uses the pictures in a commentary it should fall under free use, why don't people exercise their free use rights anymore? It's like they don't realize they have them

danpascooch:
If he uses the pictures in a commentary it should fall under free use, why don't people exercise their free use rights anymore? It's like they don't realize they have them

Because it's not that simple. It takes more than mere use in commentary to create a fair use. For example, if I run an internet blog as a music critic and I'm commenting on the latest single released by Band X, do I get to post a mp3 of that single to my blog for my readers to download without Band X's authorization and then claim that I've made a fair use? I don't think so. That's not a fair use. That's copyright infringement.

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