In talking to Joe Silver about his then-forthcoming piece on Ars Technica, I had a number of more complex legal questions left in my mind about the potential Google acquisition of Twitch, and the greater legal issues around Let’s Plays. Because I thought these issues were interesting, I wanted to take a few minutes to share them.
Are the console integrations of Twitch functionality implicit consent?
Both the Xbox One and Playstation 4 integrated Twitch streaming into their consoles. Obviously, those services all have terms of use, but it does raise the question of whether this is either a consent to the Twitch usage of the content from the console, or whether this could be an admission that the Twitch functionality of a Let’s Play is fair use. That would obviously be limited to software they publish, but it is an interesting question. If it was not, is this an inducement to infringement? Again, the terms probably try to skirt this issue, but it’s an interesting question to pose.
Could we end up with a lawsuit to end all lawsuits over the legality of Let’s Plays?
Imagine this scenario, post-Google acquisition of Twitch. Developer X is really mad about a Let’s Play by Internet Personality Y posted to Twitch, which Google doesn’t take down. Developer X sues Twitch/Google and Internet Personality Y as a result. Internet Personality Y had broadcasted the Let’s Play using the integrated Twitch functionality of the Playstation 4, so either Google/Twitch or Internet Personality Y (or both) file to bring Sony into the lawsuit. I can surmise the Sony (or Microsoft) position if this were to happen, but this would get everyone to the table very quickly.
Is there a developer out there who would risk their console relationships to sue over Let’s Plays at this point?
Thinking about the scenario above, is there a developer out there who would risk putting their business at odds with Microsoft or Sony over a Let’s Play? Or, playing off of the first question, is there a developer who would directly take on the console manufacturers, if they wanted to stop that integrated Twitch functionality from being used with their titles? I’m not sure there’s anyone who could afford that kind of conflict, as it would likely end their ability to put content on at least those two consoles.
Certainly, the potential Google acquisition of Twitch poses a lot of potential on the lawsuit front, but I think questions like these may prevent anything from getting too heated. As a result, we may never get any true caselaw directly on a Let’s Play. That said, a Google-owned Twitch is a much deeper pocket, so there may be someone willing to take a shot at the combined entity if the merger comes to pass.