If you were to search YouTube for reviews of video games, you would hit countless results.  Some channels have been able to rise above the other in terms of subscribers and consequently can be targeted for their negative reviews.  This particular dispute involved a video game review uploaded by TotalBiscuit, The Cynical Brit, of the game Day One: Garry’s Incident, made by Wild Game Studios.  TotalBiscuit regularly reviews independent (indie) games, games which are developed outside of large studios and which typically have low budgets.  While major retail games are sold for $60 on video game consoles or computers, indie games typically are sold for $20 or less.  TotalBiscuit prefers to review indie games in order to inform consumers of games they should buy which they may never have heard of before.  He also wishes to warn gamers to stay away from games which he feels will be a waste of money.  In TotalBiscuit’s opinion, Day One: Garry’s Incident fell in the latter category.

TotalBiscuit’s videos are monetized to receive advertising revenue.  Once a YouTube video is approved to receive advertising revenue, the uploader will receive 55% of the advertising revenue Google is paid by advertisers.  The types of advertising shown will change depending on many factors such as total video views, total subscribers to the YouTube channel, and the content of the video itself.  The most successful channels intake enough revenue for its owner(s) to work exclusively on uploading YouTube content.  Naturally, where there is potential to make this kind of money, legal battles will occur.

On October 20^th, 2013, TotalBiscuit received a DMCA takedown notice from YouTube and his review of Day One: Garry’s Incident was pulled.  Word quickly spread amongst the Internet and gamers began to question Wild Games Studios decision on the game’s community message board on Steam.  Steam is the most popular vehicle for selling computer games by direct download and hosts a message board for each respective game.  In response to a user’s question, “Why are these devs censoring reviews of their product?” the CEO of Wild Games Studios, Stephane Woods, posted, “We protected our copyright because Total Biscuit has no right to make advertising revenues with our license.”  TotalBiscuit crafted his own response in a YouTube video entitled “This video is no longer available: The Day One Garry’s Incident Incident.”  This video was highly critical of Wild Game Studios and in particular its CEO, Stephane.  After enduring a flood of negative press, Wild Game Studios withdrew its copyright claim and restored TotalBiscuit’s video.

Questions persist after this incident about whether DMCA takedown notices need to be amended to prevent such aggressive usage.  Despite what online service providers and content uploaders believe, it is still mandatory to comply with these notices.  Failure to takedown infringing content can result in heavy fines and possible jail time for infringers.  If service providers do not comply, they risk losing immunity from copyright liability due to their users’ actions.

If you have received a DMCA takedown notice, have had your content removed, or want to protect your own copyrighted content, you can contact Stone Law at 732-444-6303 or leave us a message on our website.