"The death of the author" and criticizing a copyrighted work

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tepples
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"The death of the author" and criticizing a copyrighted work

Post by tepples »

This is a soft split from a discussion about what pixel aspect ratio is "correct" for a particular game.

Some traditions of literary criticism had taken into account the intent of the author to discern the meaning of a work. "The Death of the Author" by Roland Barthes argues against this practice, instead recommending to interpret a work solely in the context in which it is read. Likewise, in this post, lidnariq compares reliance on authorial intent to the appeal to authority fallacy.

However, applying "death of the author" as Barthes described it could cause serious consequences for someone who writes and publishes such criticism of a work while copyright subsists in the work. (In most countries, the copyright term continues for several decades after the author dies.) If the author or their heirs object to a particular interpretation of a work, they have grounds to sue the critic for infringing copyright in the quoted portions of the work. The critic may raise a fair use defense. Success on fair use is not guaranteed, as the author may choose to file suit in a country with weak protection for fair use or weak protection of defendants against intimidation lawsuits (SLAPP). Thus it takes a critic in a country with both well-developed fair use and affordable legal representation to speak truth to power.

Purely by logic, "the death of the author" is a valid argument, because "this is false because saying it will get you sued" is an argumentum ad baculum, which is a logical fallacy. I must therefore conclude that it is logical yet risky, and not all critics are willing to accept that risk.

Application to video game development:
There was a previous discussion about whether it was "correct" to view pixel art in NES and Super NES games with the square pixels of modern displays or with the slightly wide pixels generated by the older displays. If someone were to make a video trying to discern a game's "correct" PAR using extensive in-game footage and manual screenshots, I can think of a few well-known NES and Super NES game publishers that might throw a fit, such as all three companies whose work appears in Nintendo World Championships. In 2009, I personally received a notice of claimed infringement from a licensee of one of these companies.
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rainwarrior
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Re: "The death of the author" and criticizing a copyrighted work

Post by rainwarrior »

So, as far as I can tell, this is a direct response to my comment, though you seem to have gone to meticulous lengths to acknowledge every other step in the conversation except mine, which... makes me wonder if my attempt to respond here will be viewed as harassing. or what, but I'm gonna assume we're cool and just reply.

So, I said:
rainwarrior wrote: Mon Sep 05, 2022 10:56 amI guess it's a joke about copyright term expiration but I don't really get it.
So, thank you for clarifying what you meant. I can now understand the steps you took to make that connection... though I don't agree that there is one.

We do not have to wait for copyright to expire to talk about or criticize a work. For the same reason that you don't have to infringe copyright to do so.

Maybe that outlines a topic for discussion, but I was specifically taken aback because you invoked Barthes' here.

Roland Barthes' essay, The Death of the Author, is so far removed from this issue I couldn't even see the thread. The desire to know and incorporate ideas of authorial intent into the discussion and criticism of a work has nothing at all to do with copyright terms. People want to do this when a work is new, people want to do this when a work is centuries old. Barthes' criticized other critics for relying too heavily on it, suggesting we should spend more time discussing these things on our own terms. That too, has nothing at all to do with copyright terms. In his essay, the "death of the author" happens the moment the author begins to write the work.

(Now, I'm hoping we don't enter a spiral of absurdity by using Barthes to invoke an alternative interpretation of Barthes' meaning... Barthes' heirs are not coming after us for misreading Barthes, I'd hope...)

.

Anyway, setting Barthes aside, there's a separate (to me) topic of copyright holders vs. critics.

Have some people used copyright infringement to sue a critic of their work? Maybe, but that critic has to be duplicating a piece of it that's substantial enough to be considered a copyright violation. Yes, "fair use" can be a grey area, but the grey area is how much you can copy, not how much you can criticize.

In almost all cases where this comes up, the copyright violator gets a takedown request, and voluntarily compiles. On the internet, often the violator is the hosting website, so the "volunteer" may be a different person than the initial instigator. DMCA, etc.. The cases where this actually goes to court are on an entirely different level of frequency/relevance.

Basically I have a hard time understanding who you think this applies to. I think of Rick Beato or Adam Neely, who both have million-person audiences on YouTube, and make video essays about music. They intentionally use samples of music, knowing that they might be taking "too much" and will sometimes have to take a video down, but they do it because they think the video will be better for it, and they believe the risk/reward tradeoff is a good one. When I've seen it happen to them, I haven't thought they were being silenced as a critic, and I've seen them a few times remake the video with less copied content, if they still think it's worthy of the work vs. attention without it. So even in this kind of case, which applies to very few people in the world who have this kind of audience... I'm not sure it's really what you're talking about either?

The common DMCA case is indiscriminate, with no concern at all what the context is, just that there is a copyright to defend.

Sure, it could be used to impede critics who are trying to use copied content, but it's not for stopping their ideas. There's a rather large category of people making interesting works on the back of copyright violation, and for the most part they get away with it, because the copyright holders either don't notice, don't care, or approve. So, there's a filter there, I guess... but it's a weak one. Just because a lot of people these days are getting attention from their willingness to take copyright infringement risks doesn't mean they're owed an audience for it. In large part, the audience is owed to the copyright violation risk itself.

So, OK, there's collateral here but it's a bit tangential? I don't buy it. There's too many other ways to say what you want that are legally unassailable. Some of those ways may earn less attention, for those lucky enough to have an audience in the first place, but that's very different than active suppression of the critical idea.
tepples
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Re: "The death of the author" and criticizing a copyrighted work

Post by tepples »

In 2008, I made a video criticizing the hostility of The Tetris Company and its licensee Arika toward fan-made stacking games. In May 2009, I got a notice of claimed infringement pursuant to the DMCA from Arika on grounds that the depicted games are infringing and therefore the 4.7-second snippets of gameplay included in the video are infringing. I sent a counter-notice explaining my fair use rationale. After some delay (a bit longer than the 14 business day maximum in the DMCA, which I attributed at the time to the Memorial Day weekend), the video went back up. (I ended up removing the video in June 2012 after the verdict in Tetris v. Xio.)

One of my friends in a chat server complains that it's impractical to review albums by the band Eagles on YouTube because the band's music publisher has configured YouTube's Content ID to block an entire video for even the shortest sample of an Eagles song. Even the videos embedded on Eagles member Don Henley's own website are blocked.

Edit: Or what Toei Animation did to Totally Not Mark.
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rainwarrior
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Re: "The death of the author" and criticizing a copyrighted work

Post by rainwarrior »

It might be weird to say, but a lot of YouTube and Twitch content is predicated on taking a copyright risk.

Aside from modern released games that have an EULA provision for streaming, there really is no legal right to just broadly stream the video and audio content of video games. There is a great deal of social pressure against publishers who try to treat it as a copyright violation, but legally they probably do have grounds to claim it as theirs. Nintendo took about a decade to soften up and play a little bit nicer with people making videos of their games, but for a long while they were content to send takedown requests to anybody they found putting up footage of Nintendo owned NES games.

The music industry in particular feels far less pressure to let people make content using their recordings. Similar with movies and other recorded video. Both of those have enough leverage over safe harbour video hosts like YouTube to automatically identify their content for them, so they can indiscriminately and automatically serve DMCA takedown requests. (This has a great deal of collateral damage on people who stream video games, but I think it would be extremely unfair to say that automated content ID is about suppressing criticism.)

As far as reviews and criticism and fair use go... fair use is not well defined, but professional journalists have had a pretty good idea of what will be considered fair, and will regularly use screenshots and clips and content from games in their reviews and commentary. Fair use does exist for this purpose, but because of its nature, sometimes it has to be arbitrated, and the boundaries will be continually prodded for holes.

From your description, it sounds like your 2008 video was probably pretty well on the side of fair use, but that you voluntarily retracted it for fear of legal action? I can't tell you what amount of legal risk is worth it for you, but if that one is too much, yes, probably you can't make videos like this. You'll have to stick to criticizing them in text, or some other form where you don't use any of their content. Maybe you can make diagrams? I don't know. If it has to be black and white, and you can't risk a grey, I think it will be hard for you to include much at all of their content. Fair use is a very grey territory.

However, and I was saying this above, people are attracted to video content. Having clips of a game makes your point easier to understand, and more appealing to take in. It's hard to gather an audience if all you're providing is a wall of text. A video with a clip of that game/music/movie people like just gets more attention in general than something like a text blog. However... the owners of that clip don't owe you an audience. I think fair use is an important principle, but if your usage steps outside that, if you want to use their stuff to get someone's attention, I don't really feel it's unfair for them to want it taken down if they don't like the content around it.

YouTube isn't a neutral party either. They have to relay DMCA notices as part of being a safe harbour service, but if they don't want you doing something in a video, they can take it down themselves, regardless of fair use. Fair use only applies if you reject the DMCA notice and invite them to sue you to find out. YouTube can remove your videos on its own. Especially for people with popular content, YouTube's advertisers can definitely pull strings about what videos are promoted by the service. Fair use isn't also a right to an audience, it's just a defense against a lawsuit.

I think a great deal of popular criticism videos, even ones speaking negatively of the work they're appropriating, go well beyond my understanding of fair use... but I think there's a lot of reasons why it might go untouched despite this. Some things are just obscure. Some things aren't worth the effort to arbitrate if a simple DMCA request is rejected. Some publisher might believe that there is "no such thing as bad publicity". Some might feel the backlash from suing a beloved critic would be bad publicity. There's lots of reasons that something may be permitted, despite being outside the realm of fair use, and these reasons are usually private.

Music reviews have been in newspapers and magazines for years, and blogs continue with it. Often a blog can link to sample versions of the music in question that are hosted elsewhere. There's always been very legal ways to say whatever you want about a piece of media, you just might not be able to give people a copy of that media at the same time.

If you need to do it in video form, it can be problem. If you don't want to be subject to the DMCA process of safe harbour video hosts like YouTube, you could host the video yourself and just accept incoming lawsuits directly...? There are a lot of good reasons to try and go through YouTube (audience, hosting, advertising, etc.) rather than trying to do it yourself.... though I'm sure I'm not alone in being worried about the global corporate consolidation of the web into a few major sites where almost everything takes place.

There's a lot of things that suck about the DMCA process, and because of what we see people "getting away with" on a daily basis, there's a lot about it that becomes counter-intuitive, but I feel like there are a lot of extremely positive benefits of the safe harbour system as the result of it. YouTube is definitely not neutral at all in terms of its internal promotion of content, but for the most part they do host video content for people in a reasonable and mostly neutral way, and they do allow people to share/promote on their own. The non-neutrality of front page suggestions are a big deal if you're trying to make money with them, but if you just need an easy place to host videos that people are comfortable using, it's actually really great at that.
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