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Pewdiepie, pejoratives and threats of false DMCA

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Offline kat

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Filing a #DMCA Take-down Notice for any reason other than an infringement or misappropriation of Copyright subjects the Complainant (person issuing the Take-down Notice) to the possibility of being prosecuted for Perjury, the intentional invocation of legal process under, false or otherwise misleading pretense.

Make no mistake, Perjury is serious business because the 'Oath' that's sworn at sign-off grants authority of the governed (The People) to whatever State power is able to service the claim being made. In other words, when one party to a claim knowingly lies in the broadest sense, or intentionally misrepresents their case against another, they are siccing the full weight of the State on the other Party absent their being actual or justifiable reason or need.

As can be imagined, the State doesn't like being used like this ('punitively' or 'vexatiously') because it undermines the States standing/authority on the matter at hand (and due process more broadly), which is largely why Perjury carries such relatively heavy penalties for something that otherwise appears at face value 'harmless'; the crime isn't the 'lie' so much as the misappropriation or unjustified invocation of State power for the individuals own ends rather than the States and its exercise of Justice.

With this in mind, to be using or overtly threatening the use #DMCA as a means to solve what amount to nothing more than petty personal or political beefs, to remove content from the internet because someone said something stupid or offensive during a live-stream, is misguided and foolish a best, doubly so when the party making such claims has granted express licence for their material to be exploited[1].

So whilst it was most certainly unwise, yes even offensive, of Pewdiepie to use (a?) racial pejorative(s?) during a live-streaming. It's even more 'unwiserer' for a dissociated developer, having absolutely no connection to the game being streamed, publicly announce their intent to potentially abuse #DMCA to remove unrelated archives as a result of said event, insinuating the pejorative as the reason, whilst asking others to do the same[2] to boot. So not only is the developer toying with Perjury, they're also walking on the left-side of Twitters (and YouTubes) Terms of Service that forbids targeted harassment of users on its platform.

The whole situation is of course (of course!) not helped by the huge amount of 'fake news' and click-bait generated by outlets more interested in outrage peddling[3] than taking the opportunity to properly inform their readers about #DMCA, how it actually works, and why it should not be abused the way Firewatch developers appear to think it can.

DISCLAIMER: The above should not be construed as legal advice. It is posted as opinion/for informational purposes only. Always seek Legal advice/council prior to issuing DMCA Take-down, Counter Notices or dealings therein.

[EDIT: little bit of clarity: it wasn't the streamed games developer but someone associated with another product PDP has played previously]

Additional Resources
- Learn more about DMCA and what's required to file a Notice.
- Are 'DMCA Protected' websites & services scams?.
- You don't own that game you bought (Copyright).
- Fan Art and Copyright Infringement.
- Its a Terms of Service violation, not Copyright dispute.
- DMCA and its Failings.
- DMCA exemptions - single player games.
- Pepper and Carrott and the curious case of Copyright infringement >meow<.
- What is "FOXed"?.
- Improving Content ID for creators.

[1] oddly the game at the centre of this nontroversy was not authored by the developer making the false DMCA claim (Pewdiepie was playing another game). Even more oddly, the studio to which the individual actually belongs explicitly grants licence for the exploitation of their content - "Can I stream this game? Can I make money off of those streams? Yes. We love that people stream and share their experiences in the game. You are free to monetize your videos as well. It doesn't hurt to let us know on Twitter when you're live. We might show up in your chat!". Generally speaking then, unless the granting authority (the game developer making the threats) included a "we reserve the right to..." (or otherwise room for revocation) statement within their permission of use agreement, it would be difficult for them to prove their case (unless YouTube streamers are subject to a different licence not publicly available), especially where doing so means acting retroactively to rescinded or selectively revoked such permission. DMCA and Copyright simply doesn't work this way, to have better chance of success when enforcing their rights though DMCA, Rights Holders generally have to show they are pro-active in their efforts to establish ownership - being the Rights Holders doesn't automatically equate to 'winning'. Similarly, although it is being said that DMCA Notices can be sent for any reason this is only true with respect to those reasons being specifically related to the misappropriation or infringement of Copyright. And to be clear, whilst Lets Plays in of themselves have not been ruled (as of yet) as "Fair Use", monetisation i.e., commercial exploitation (adverts, income from Patreon and other sources) would generally nullify that defensive argument (at least at present).

[2] to be clear, the game being played/streamed was not authored by the developer threatening DMCA abuse, he was allegedly referring Firewatch, which Pewdiepie had played previously. With that said, his calls for others to join him could be considered a call for the targeted harassment, or the "brigading" of another individual, a form of abuse Twitters forbids on their platform.

[3] the headlines below are not linked to intentionally so as to not propagate fake news;
- "YouTube star PewDiePie uses racial slur" - BBC
- "PewDiePie: YouTube megastar's N-word outburst sparks developer backlash" - The Guardian
- "PewDiePie must not be excused. Using the N-word is never OK" - The Guardian
- "PewDiePie, the world’s most popular YouTuber, is back making more racist comments" - Tech Crunch
- "Pewdiepie Streams Racist Slur, Prompts DMCA Threat from Gamemaker" - Rolling Stone
- "PewDiePie in trouble once again for racist outburst" - Engadget
- "FireWatch dev uses DMCA against PewDiePie after streamed racial slur" - ars Technica
- "Firewatch dev threatens Pewdiepie video takedown, following YouTube star's use of N-word" - Eurogamer
- "Firewatch creator vows DMCA retaliation against PewDiePie for racist slur used in stream" - Polygon
- "PewDiePie uses N-word during live stream, game developer takes action" - Mashable
The above headlines would be perhaps more accurate had they included "false" when mentioning "DMCA";
- "Firewatch developer threatens false DMCA for inappropriate language",
- "Pewdiepie threatened with false DMCA over racial pejorative",
Or more acutely accurate...
- "Developers misplaced outrage over racial pejorative",
- "Should Pewdiepie be excused given the pervasive Cultural use of racial pejoratives?"
And so on... The intentional (?) lack of clarity reveals more about the political biases of outlets reporting on this story than it does about Pewdiepie's alleged racial tendencies or not.