Feb 21 2015 - 10:08 pm

An esports lawyer breaks down everything you need to know in the SpectateFaker case

Bryce Blum currently represents numerous players, teams, leagues, tournament organizers and service providers in esports, and counsels clients on entertainment, employment, sponsorship, sports, intellectual property, development of league rules, and gamin
Bryce Blum
Dot Esports

Bryce Blum currently represents numerous players, teams, leagues, tournament organizers and service providers in esports, and counsels clients on entertainment, employment, sponsorship, sports, intellectual property, development of league rules, and gaming law issues within this emerging industry.  

Background

The League of Legends esports scene is in the midst of a complex copyright battle, involving three of the biggest parties in the space: Twitch, Azubu, and Riot. This dispute was the subject of a recent video by Travis Gafford, which did an excellent job highlighting the issues and making sure this gets the attention it deserves. I’m going to build on Travis’ analysis, and offer some detailed legal context to facilitate more discussion on the topic.

The issues began with a Twitch stream called "SpectateFaker," which aired the raw content of Lee "Faker" Sang-hyeok's games through OP.GG. As this stream gained in popularity, Azubu understandably got upset about what it perceived as a drain on its business—Azubu has exclusive rights to act as Faker’s streaming platform through a contract it entered with KeSPA. Apparently based on this arrangement, Azubu filed a complaint with Twitch under the Digital Millennium Copyright Act (DMCA), alleging that SpectateFaker was infringing on its intellectual property (IP) rights. As a result, Twitch cleared the archives, highlights, and episodes from SpectateFaker, and issued a 24-hour restriction from broadcasting.

The basics of copyright law

Under Title 17 USC § 106  of the Copyright Act, copyright holders have the exclusive right to publicly perform the work and to reproduce copies of the work. However, copyright holders can grant licenses to others to use the protected work at the discretion of the copyright holder.

Typical streams include several discrete elements: The game, oral commentary by the individual player, the name of the player, video showing the face of the player and background music. It’s important to separate these elements, because each potentially implicates a separate copyright holder. When it comes to the game itself, the IP rights belong exclusively to Riot—the images, sounds, and underlying code are all wholly owned by the game’s publisher. This means that Riot could prevent anyone from streaming its game. However, Riot has chosen to go an entirely different route, and maintains a blanket policy that “you can use League of Legends IP as the basis for a fan project that you’re giving away for free or that’s only generating ad revenue.” Riot’s website goes on to state:

The content our community creates inspires, informs and entertains Rioters and players alike. We hope to see many more videos using Riot Games and League of Legends content. This handy guide will help you ensure that any video using our intellectual property (such as video images, art, music, sounds and other content) is legit before posting to YouTube, streaming sites like own3D, or just for you and your friends.

In this case, Azubu has the exclusive right to act as Faker’s broadcaster. However, that arrangement simply cannot grant IP rights to the gameplay itself. That content isn’t Faker’s to license—it’s Riot’s.

The Safe Harbor provision of the DMCA

The rights and obligations of parties under the DMCA are somewhat complex, and have been the subject of ongoing billion-dollar litigation brought about by mass-media company Viacom. The Viacom case surrounds the then recently-enacted safe harbor provision of the DMCA, which was intended to shelter service providers from the infringing activities of their users. This provision states that a service provider (such as Twitch) cannot be held liable for copyright infringement if it does not have actual knowledge of the infringement, is not aware of facts or circumstances from which infringing activity is apparent; and upon obtaining such knowledge or awareness, acts expeditiously to remove or disable access to the infringing material.

In a 2013 ruling on the Viacom Case, the Southern District Court of New York noted:

Title II of the DMCA was enacted because service providers perform a useful function, but the great volume of works placed by outsiders on their platforms, of whose contents the service providers were generally unaware, might well contain copyright-infringing material which the service provider would mechanically ‘publish,’ thus ignorantly incurring liability under the copyright law.

The court emphasized that the safe harbor provision was designed to resolve this issue, arguing that service providers are not obligated to scour their websites in order to identify potentially-infringing content. However, in order to gain the vital liability protection provided by the DMCA, a service provider must act “expeditiously to remove or disable access to the infringing material” once the copyright holder affirmatively identifies the infringement.

What are SpectateFaker’s options?

SpectateFaker could file a response to Azubu’s claim, asserting that he has the right to broadcast the content in question. These rights are expressly provided on Riot’s website. Moreover, SpectateFaker could point out that Azubu does not hold the copyright to the material in question and therefore lacks standing to assert that SpectateFaker’s use of the material is a violation of any of the owner's rights. One of the requirements of the DMCA is the party demanding a take-down must claim to be the copyright owner or legal representative of the owner.   

SpectateFaker also has the right to file suit against Azubu under 17 U.S.C. § 512(f)(1), which establishes civil liability for any party that “knowingly materially misrepresents under [the DMCA] that material or activity is infringing.” Of course, litigation is expensive and extremely time consuming. I’m by no means endorsing this option. I just wanted to point out that it exists.

Thoughts on the actions of Azubu, Twitch, and Riot

Azubu: On a basic level, I get it—Azubu is paying a lot of money to be the exclusive broadcaster for Faker, and it has to be frustrating to see SpectateFaker pulling in significant viewership based solely on Faker’s gameplay. But that doesn’t mean Azubu has the legal right to get SpectateFaker taken off the air. Azubu doesn’t have the legal right to have content removed from Twitch based on alleged infringement of IP rights it doesn’t hold. As noted above, the DMCA actually establishes civil liability for knowingly making a materially false claim. If Riot were to intercede in this dispute and assert itself to be the rightful copyright owner of the pure gameplay feed, Azubu would be in a different legal position in the future about making ownership claims it knows to be false.

The only likely conflict between SpectateFaker’s actions and Azubu’s rights is the use of the name Faker. Azubu undoubtedly was granted personality rights to use Faker’s name in connection with his stream, and SpectateFaker is using that name to promote his stream. That being said, it wouldn’t make sense for Azubu to have exclusive rights to use the name Faker—if it did, Faker’s named couldn’t be used in connection with any other promotions, competitions, etc. Azubu is far more likely to have exclusive rights to use of Faker’s name with respect to each individual streaming session. Those rights aren’t impacted by SpectateFaker.

Twitch: From my perspective, Twitch was the subject of some relatively unfair criticism in this instance. The framework of the DMCA directly incentivizes Twitch to do exactly what it did in this case. A content provider as massive as Twitch needs the liability shield offered by the DMCA. There is simply too much content on Twitch for it to self-identify all infringing content that it posted on its site—the only way for Twitch to avoid liability is to make sure it “acts expeditiously to remove or disable access to the infringing material” as soon as it is identified by a third party. And while I would like to see a higher bar set for determining when a claim of infringement is sufficiently valid to result in a takedown, Twitch’s action in this case were probably the most legally and economically sound option. This is the first time this issue has arisen, as far as I am aware.

Riot: The first response from Riot came from a random member of the customer support team: "If you are going to stream another player's games, it makes sense to reach out to that player first (in this case Faker) and get their permission. It's simply the right thing to do. Raising the visibility of a person's match without their knowledge is questionable because they may be assuming that they are just casually playing a game with friends when in reality they are being broadcast to a larger audience." 

Then, earlier today, Marc Merrill, Riot Games' president, commented on the issue in response to Gafford's original video:

As I think you guys all know, we love the stuff that the community creates and it's important that players feel protected when they put time and effort into creating content for the League community, and as such our legal jibber jabber has always granted players the ability to create content and monetize it on platforms like Twitch or YouTube.

This new issue of rebroadcasting spectator mode streams of a specific player's game is something that only recently became possible and we have to consider very carefully how we address it because this issue involves a bunch of parties. As it relates to addressing the specific issue where third parties use copyright claims against Riot owned content, we are committed to working with our partners to ensure that they understand our stance on player creative content and act accordingly.

While this issue is far from resolved, I think it’s important to note that Riot has a great deal at stake in the resolution of this issue, and that Azubu’s claim has the potential to threaten Riot’s broad and substantial IP rights with respect to the game it publishes. 

Update 4:40pm CT, Feb. 21: This article has been updated to include the statement from Marc Merrill.

Screengrab via Riot Games/YouTube

Jan 18 2017 - 9:07 pm

Yes, SKT played Ziggs ADC in a competitive game—and they dominated with him

The current League world champs show us all how OP bot-lane Ziggs can be.
Aaron Mickunas
League of Legends Writer
Image via Riot Games

ADC Ziggs has been spreading like the plague (a really, really annoying plague) through ranked games in League of Legends over the past few weeks, and SK Telecom T1 reminded everyone why they’re the World Champions by taking him into a League Champions Korea game—and destroying their opponents with him.

Jin Air, the team that fell at the hands of the mighty ADC Ziggs in the LCK earlier today, probably thought that SKT’s Bae ‘Bang’ Jun-sik was joking around when he hovered over Ziggs in Champ Select. Surely Ziggs is only a troll pick that streamers play to entertain their audiences or that Bronze players choose because they saw Shiphtur do it once, right? Right?

Wrong.

The irritating, familiar sound of Ziggs saying “This’ll be a blast!” rang loud as Bang locked him in, ready to take the AP terror down into the bot lane. It was a bloody sight to see, as Bang dominated his lane opponents. At the end of the laning phase, Bang had 3-0’d his adversary as the explosive-crazed Yordle. He won trades, outplayed tower-dives, and showed us all just how possible it is to take an AP mage into a role overrun by Marksman champions and thrive.

Was it because Ziggs is OP in that particular position? Was it, perhaps, because the state of ADCs is so pathetic that you can take any old champion into that role and do better than a traditional ADC? Actually, it’s a little bit of both.

This Ziggs pick may begin a trend of meta-breaking within professional play, and because of that casual players will follow suit. Soon, we may see more mages in bot lane, more marksmen up top, and even some supports pick Janna in the jungle.

Ziggs is an important lesson for the future of League. Playing him in the highest level of competition suggests that there may be more instances like this Ziggs game—where pro players figure out ways to use unorthodox champion picks to their advantage.

Sometimes, the meta doesn’t have to be followed—if you can find another champion to play a specific role well enough. A few seasons ago, after all, you’d dodge a ranked lobby if you saw a Rumble lock the jungle role, and now you wouldn’t bat an eye.

Love him or hate him, Ziggs is here to stay, and since the god-team of SKT has now played him in a pro game, you can expect even more ADC Ziggs appearances in your Bronze ranked games. He even has the second highest win percentage out of any other ADC, according to League stats website Champion.gg. Don’t worry if you’re having trouble winning against him, you could always go ADC Syndra.

Today - 1:25 am

Get your Red Envelopes ready—the Lunar Revel event in League starts today

Riot is kicking off the 2017 Lunar Revel with some slick new skins.
Aaron Mickunas
League of Legends Writer
Image via Riot Games

The Lunar New Year is a sacred, historic holiday that is celebrated by nations in the far east. It marks the beginning of the year based on the cycles of the moon. There’s dancing, festivals, parades, but much more importantly: A special League of Legends event. Why is that so important? Because you can get sweet new skins, of course!

The Lunar Revel Event is a yearly occurrence in League that features shiny new goodies to buy in-game. The event was announced and started today, so after you update the client, you’ll be able to take part in the festivities.

1) Free Icon

That’s right, for the small cost of going to the official Lunar Revel web page, you can claim a free Summoner Icon! The interactive home page acts as the hub for the Lunar Revel event, and you can click through the menu to see all the features. There’s even some lore tying each of this year’s Lunar Revel skins to their respective champions.

2) Champion Skins

There are three skins coming out for the Lunar Revel event this year: Garen, Azir, and Vi. Each has a matching Summoner Icon available in the store.

Garen’s sword and rad man-bun make this skin what it is: Awesome. When he spins to win, a green dragon swirls around him. When he ults, the giant sword that falls from the heavens... well, it’s green.

Azir seems to be more of a themed skin specific to this year, as it’s the Year of the Rooster—and Azir is as rooster-like as any League champion gets. His soldiers are also made to match his skin, sporting golden armor.

Vi’s theme is “the green demon” and when she ults, a big green dragon swirls up into the air and slams back into the ground as she does. This one’s our favorite, but mostly because it’s the only time we’re ever going to see Vi in a ponytail.

Not only are those three new skins available now, but past Lunar Revel skins and bundles are in the shop as well.

3) Crafting

A brand new Lunar Revel crafting system will also be in the client until the end of the event. It uses the same crafting page as usual, where you open chests with keys you earn from playing games and combine shards to form skins and champions. You can buy a Revel Red Envelope for 250 RP and visit the crafting page in your client to turn it into a skin shard and one random relic.

The relics come in three types: the Pauldron Relic, the Golden Relic, and the Gauntlet Relic. Once you have all three, you can combine them into Epic Skin Shards (1350 RP skins), random skin permanents, Gemstones, or Hextech Chests and Keys.

4) Merch

Finally, you can visit the Lunar Revel merch store to check out some IRL event goodies. Want a shirt featuring each Chinese Zodiac with League champions instead of the usual animals? Well it’s in the merch store, as well as a collectible figurine of Lunar Revel Azir.

The event is running from now until Feb. 2, so be sure to log into the game and check it out!