In my last article, I mentioned that E-Sports leagues are largely at the mercy of their intellectual property (IP) holders - usually, the creator of the game. For some games, such as the platform fighter series Rivals of Aether, battle royale game Fortnite, and more, their developers actively encourage a competitive scene to play and stream their game to their heart's content. Other developers aren't so generous.
Title 17 of the U.S. Code covers what is considered a copyrightable work and the protections afforded to their owners. 17 U.S.C § 102(a) defines copyright protection as "original works of authorship fixed in any tangible medium of expression." Video games are amalgamations of various IPs, from the musical score accompanying a playthrough, to the specific character models designed for the game, to the written code behind everything. From a business perspective, it's easy to see why developers want to protect their games so heavily.
Sometimes, however, these practices can feel anti-consumer - or, at the very least, detrimental to passionate playerbases.
To understand why this is the case, we need to examine what copyright law says and what exactly poses so many restrictions on gamers.
Nintendo's platform fighter series, Super Smash Bros., has been often involved in discussions about copyright law and their implications on the community. Pictured: Mario, a playable character, in the game Super Smash Bros. Ultimate. https://en.wikipedia.org/wiki/Super_Smash_Bros._Ultimate The Law
Pursuant to 17 U.S.C § 106, copyright holders have the exclusive right to "reproduce, prepare, distribute or perform" the works they own. This doesn't allow developers to restrict who buys their product, but it does dictate how the public can display or use it. For instance, someone legally cannot profit off playing the game and posting a video of it on YouTube.
That is, unless the work falls under fair use. Defined by 17 U.S.C § 107, "fair use" is when an individual uses a copyrighted work for a protected purpose, such as criticism, parodies, teaching, or research. The law regarding fair use is fairly complicated and shifts significantly when examining case law, but being aware of the fundamentals behind it is important.
Lastly, the Digital Millennium Copyright Act (DMCA) actively discourages copyright infringement on the Internet through tough penalties. Any use of copyrighted material without express permission from the owner that does not fall under fair use is subject to a request for the video to be taken down. Platforms such as YouTube & Twitch contain systems that scan for potential DMCA violations to be compliant with the law, while also allowing copyright holders to submit requests for a DMCA takedown.
Twitch, the most popular livestreaming platform, has many measures in place to prevent copyright infringements under the DMCA. Pictured: Twitch logo. https://www.twitch.tv/p/en/about/
When there are minimum edits to a gameplay video, such as an uncut unedited playthrough, there is potential for a developer to succeed with a DMCA takedown request, according to a post by patent attorney Bao Tran. Streams of video games with no commentary or alterations to the presentation of the game could also, in theory, be affected.
Actions Taken by Developers & Publishers
Popular developers & publishers have taken great strides to protect their IPs from piracy.
Nintendo's announcement of Switch 2, met with lots of controversy due to exceptionally high prices, included a change with the format of physical cartridges. Now, instead of including the game on the cartridge, the card acts as a key to downloading the game from their servers.
You are, in essence, still borrowing a license to use their IP by playing it. However, the key difference is the ability for the company to revoke that license. It's much harder for Nintendo to stop someone from playing a physical copy rather than a digital one. By purchasing a game, you are merely given permission to use that IP in a restricted manner (playing it) that can be taken away according to their Terms of Service.
Can companies do this? There is precedent. In 2023, Sony tried to pull Discovery Channel shows from the PlayStation catalog, citing issues with licensing. After fans voiced their concerns, they peddled back on the decision. Regardless, it sets a dangerous precedent that companies can revoke access to your purchased digital content, whether you like it or not.
Nintendo's decision is a work-around that makes physical copies feel like digital with a twist.
In the competitive landscape, there are further restrictions on tournament organizers and their partners when allowing players to compete in a specific game. Writing for the Vanderbilt Journal of Entertainment & Technology Law, Alexander Tu notes that there's a "lack of precedent" that can dictate what developers can and cannot restrict. As a result, as Tu describes, many incidents, ranging from weird to community-threatening, have occurred, such as:
- Blizzard Entertainment, the company behind Overwatch, requiring third-party events to include the word "community" to distinguish between their events and Blizzard's. They are also prohibited from streaming during Blizzard's Overwatch League matches.
- In 2013, Nintendo tried to shut down a Super Smash Bros. Melee tournament at one of the biggest gaming events, EVO, until fan outrage caused them to back off. The Super Smash Bros. series would be entirely removed from the game lineup of EVO tournaments in 2022.
- Riot Games & Epic Games, developers of League of Legends and Fortnite respectively, have limited the total prize pools that can be advertised for third-party events, stifling grassroots community efforts.
The question is: why? Playing games on a giant stage with millions of viewers and thousands of competitors without even having to spend a dime on marketing or endorsements is practically a golden goose! Except, for companies, it isn't; if any negative perception develops about a game's balance, or their community, or their tournaments, it can fall back on the company and create a negative association. It isn't right to take it out on the players, but why should they allow a "wild-card" variable into their oh-so-perfect company dashboard?
The Current Landscape
This is not a problem unique to the United States. Some countries such as Japan have stringent copyright laws that can be career-ending. For instance, Japan's number one Super Smash Bros. Ultimate player, "Hurt," was given a two-month suspension after fans found out he was using mods to improve the game's Wi-Fi connection. A suspension was not even the max punishment possible; this player would've faced termination or possible legal action for violating copyright laws.
I've ripped on Nintendo thrice now, but they are one of the brands most actively going out of their way to take action against competitors and casuals alike. They illustrate how much we take gaming for granted. No one gets to own basketball, football or soccer, but there is always someone who owns a game. That someone could be the bridge the community desires, or the fire that burns it down.
The U.S. does not currently recognize E-Sports as a "sport" under antitrust law. There are no player associations or labor unions. There are no formal leagues. And, there is definitely nothing stopping a player from being strong-armed into a horrible deal.
Yet, with a lack of precedent comes a potential for change. Players with a passion for their games should push back against attempts by companies to infringe on their rights as a consumer of video game products. Calling representatives or even retaining a lawyer for your future E-Sports prospects could be a wise investment in protecting yourself. Perhaps developers hold all the cards and can deal them out as they wish - but, with enough time, even we can beat the house.
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