Atlus places severe restrictions on Persona 5 streaming and recording; the internet loses its collective shit

Yesterday, on April 4, Japanese game developer and publisher Atlus finally released Persona 5 in North America after two and a half years of delays. This much anticipated release came along with an announcement from Atlus forbidding the public display through either posted videos or live streams of spoilers, boss battles, or of any part of the game beyond the in-game date of July 7 (about three months from the game’s starting date, and probably about a third of the way through the story.) Both Youtube and Twitch are widely said to be on board with this policy, so if that’s true, punishments for rule-breakers will presumably get doled out in the form of bans.

Atlus’ policy is now causing much wailing and gnashing of teeth on the internet among people who had been looking forward to stream or to watch streams of Persona 5. This decision doesn’t affect me personally – I don’t stream because I’m not any good at games and I can’t add interesting enough commentary to make it worth anyone’s while to watch. And I was not planning to watch a stream of a game that I’m already playing myself. But I do find the drama surrounding Atlus’ decision really interesting. A lot of people are angry at Atlus, and some of them have been arguing that Atlus shouldn’t be able to prevent the streaming of Persona 5. The term “fair use” has been thrown around a lot.

So first of all – does Atlus have the law on their side in this case? The answer is almost certainly yes, at least according to US federal copyright law. Atlus holds the copyright to Persona 5, and outside of certain exceptions it can freely enforce that copyright to prevent others from using its own work to create their own public performances.  But what about fair use? Fair use is an exception to the enforcement of copyright that applies to the use of existing works by a non-copyright holder for limited purposes. The four factors considered by courts to determine whether a work or performance is covered by fair use are listed in Section 107 of the Copyright Act:

(1) the purpose and character of the use, including whether such use is of a 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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

There seems to be no case law establishing any kind of precedent to apply to Let’s Play videos or streams, but we can at least apply the plain language of Section 107. When we do that, we find that the law is very much in the favor of Atlus here. The second and third factors weigh heavily in Atlus’ favor. (2) deals with the amount of creativity that went into the original work, which in the case of a video game, especially one as long, complex, and unique as Persona 5, is extremely high. Let’s Play videos and streams tend to run through entire games, so the same goes for (3). And the first factor weighs in Atlus’ favor if the video or stream is monetized through ad revenue or if the streamer is using his playthrough of Persona 5 in part as a way to attract paid subscribers and to gather donations.

The only factor that’s not clearly in Atlus’ favor is the fourth one. It’s not obvious that a heavily streamed game will sell fewer copies than a game that isn’t widely streamed, all other things being equal. In fact, you could just as easily argue that a heavily streamed game will attract more interest and result in higher sales. NieR: Automata was streamed like crazy and that game broke a million sales just over a month after its release. Obviously those streams didn’t have too terrible of an effect on the game’s sales. (Then again, maybe the exposure of cute android girl protagonist 2B’s butt had something to do with the high sales too.)

In any case, after reading Section 107, I would bet money that almost any court applying this test would find in favor of the copyright holder and would not find fair use, especially if the use of the copyrighted material is for commercial purposes. And while a Let’s Play video series or a stream might qualify as a derivative work under US copyright law, that derivative work has to be authorized by the original copyright holder, in this case Atlus. And Atlus is clearly not interested in authorizing shit right now.

Going to federal court also costs $$$$$$$$$

Atlus very likely has the law on its side. But even so, was the severe restriction on recording and streaming Persona 5 a wise move? And was it wise to wait until the day of the game’s release to make that announcement? And was it wise to pretend that the stream restrictions are about avoiding spoilers, when they’re obviously about Atlus trying to sell more copies out of a fear that streaming would hurt their sales?

Will Atlus end up pissing away the goodwill it’s gained over the years in exchange for a possible short-term boost in sales?  That’s a risk for Atlus to take if they choose, but I’d hate to see the company go down the same “fuck the consumers” path that certain other developers and publishers have, because Atlus makes games that I like. I’m already five hours into Persona 5 and it’s really good so far. If P5 keeps up the pace throughout I’d recommend it just as much as I would P3 and P4 to anyone, provided they don’t hate turn-based RPGs or games that are too anime.

The way things are going, though, there might very well be a test case in federal courts about recording or streaming games online some day soon. And maybe that test case will involve Persona 5.* That’s serious publicity for the game, but probably not the kind Atlus intended. Even if the law is on their side, good sense might not be. 𒀭

*Okay, probably not.  But it sounds good, doesn’t it?  Atlus v. Weeb Twitch Streamer et al.  It could be a landmark case.

Edit (8/23/18): In the end, Atlus barely even enforced the stream ban.  I watched a guy off and on who played the whole game through to the true end on Twitch and never got slapped for it, and last year there were a ton of people streaming the game on Twitch with presumably no consequence (except perhaps for DarksydePhil, who reportedly did get slapped by Atlus, though maybe they knew how much of a complete knob he is.)

Update #3 of ?

phoenixwright

Hello readers.  I was planning to make an update post about how I’m still still not dead, even after my last two long absences.  There’s been a lot going on with me.  I passed the bar and have been working for a judge for a few months now assisting with research and sitting in on trials.  It’s been interesting and occasionally crazy, and I could write a whole post about how despite that it’s still not nearly as exciting as a Phoenix Wright game or even a Law & Order episode, or about how you really really shouldn’t go to law school.

But now that we’ve elected a god damn Caligula as our president, there doesn’t seem to be much of a point doing that now.  I still can’t believe this happened.  All you folks who voted for Trump and are deliriously happy right now – I don’t bear any ill will against you.  But I will ask you one or two years from now if you feel the same way you do now.  You’ve put a con man into the White House.  Hillary might have been a typically corrupt politician, but she wasn’t really any different in that case from any of the other typically corrupt politicians we’ve had in office in the past.  Trump is different – and not in a good way.  Mark my words and remember them years from now.  If we’re still around, that is.  I’m sorry for the off-topic post this morning but I had to say something about this.  As a Muslim (sort of lapsed, but still) with a lot of Arab family who was born and raised American, I honestly feel kind of like a Jew in Europe in the 1930s now.

Okay, so maybe that’s too dramatic.  But after all the poisonous rhetoric that’s come out this election cycle, can you blame me?  In any case, I’m not going anywhere, and I plan to get back onto a regular writing schedule here, if only to help distract myself from what’s going on right now.  I did just buy a PS4.  What better way to distract myself from reality?

Pennoyer v. Neff v. Mitchell v. me

As a 1L at law school, I’ve just gotten through one of the most infamous cases in the standard first year curriculum: Pennoyer v. Neff. Pennoyer was written in 1877 and is the final link in a chain that extends through two lawsuits between a total of three parties involved in a twisted web of unpaid fees, land grabs and weaselly tactics so confusing that the Supreme Court had to create new law just to settle the matter. Pennoyer is a definitive case in the history of personal jurisdiction in the US despite the fact that it’s been upended by later cases like International Shoe Co. v. Washington (which I have to read this weekend.) That’s what my Civil Procedure professor tells me, at least.

But Pennoyer is more than seven pages of drudgery in a casebook. It’s an interesting story in its own right. It involves one Marcus Neff, a guy we don’t know much about except for the fact that he sought out some land in Oregon pre-Civil War and his claim was held up for well over a decade. Neff hired John H. Mitchell, a prominent Portland-based lawyer, to take care of the paperwork. For a reason the casebook doesn’t explain, Neff never paid Mitchell and absconded to California, which was where he was when Mitchell sued him in Oregon state court for his outstanding fees. Mitchell won a default judgment after Neff didn’t show up to court. Not that Neff had been negligent of his duties – the Oregon court had published Neff’s summons in an Oregon paper, printed and circulated in a place that Neff would have never found because, well, he was in California.

613px-John_H._Mitchell_-_Brady-HandyThus bringing us to the most interesting character in the story. John H. Mitchell was originally John M. Hipple of Pennsylvania. He started out as a teacher, but apparently succumbed to the charms of one of his students, because he ended up impregnating a 15 year old girl under his charge (apparently this wasn’t illegal in Pennsylvania at the time.) The 22 year-old Hipple was subsequently forced into a marriage. Sadly, things didn’t go so well for the new couple, and after taking up the law as a profession for a few years, Hipple took off to the newly conquered West with a new lover, another schoolteacher, in tow.

This new relationship didn’t last either. When they reached California, Hipple (now Mitchell) left his paramour behind because she’d come down with a terminal illness. What a guy.

Mitchell ran off to Portland, Oregon, where he established another law practice.

Here Neff met Mitchell and the shit went down. Mitchell ended up collecting his unpaid legal fees from Neff by having the state court confiscate and sell Neff’s property in auction. The man who bought Neff’s property just happened to be Sylvester Pennoyer, future governor of Oregon. Neff soon found out that his land was in the hands of another man and sued Pennoyer, claiming the sale of his land resulting from Mitchell’s default judgment win was invalid.

I could go on, but it’s enough to say that the case went to the U.S. Supreme Court, which ruled that the Oregon court in the original lawsuit had had no personal jurisdiction over Neff, since he was in California and hadn’t been served proper notice (service by publication doesn’t count if you’re an out-of-stater) and that, much more importantly, Neff had bought his land after the Mitchell judgment and therefore the sale was invalid. It’s all supremely confusing, but I think I get the gist of it now.

This case is an essential one for several reasons. It’s a definitive Supreme Court case defining personal jurisdiction, but it’s also a fascinating personal drama. And as a fellow teacher-turned-(prospective) lawyer, I can feel some camaraderie with John H. Mitchell. Minus the whole part about knocking up his 15 year-old student and abandoning his sick lover and all-around being a scumbag deal. Then again, being a scumbag didn’t stop him from being elected to the US Senate three times, so hey. Whatever works.

P.S. – If you’re a law student looking up info about this landmark case, welcome to my site.  I wrote this article back when I was a 1L.  Now I’m an attorney, but I still write about video games as a diversion.  It’s more fun than writing on a law school journal, that’s for fucking sure.

I just wanted to wish you luck at law school and to say that I’m sorry that you’re currently in law school.  You really have no idea yet what you’re facing, even if you think you do.  And be sure to take as many bar-related courses as you can in your second and third years.  You’ll be thankful that you did once bar review time comes around.