Clarify conditions for using copyrighted material

[jdcr]

TL;DR. Squad, please create an unambiguous, consistent set of rules or conditions under which material from KSP can be used in Youtube videos or other forms of publication on the web. Put these in a single and easy to find place. Create a policy for how these rules can be changed.

I'm trying to keep this as short as possible, but it's a complex subject. Here we go...

I've seen a lot of KSP videos on Youtube (gameplay, tutorials and others) and I thought it would be fun to make some of my own. However, having looked at the legal situation, I don't think I can. In the FAQ it says:

I uploaded a gameplay video to Youtube. Is it okay for me to monetize it?

Yes, by all means. If you are having many views and want to seize the opportunity, go ahead. We just ask to be given credit, a mention and a link to our website is enough. You must also make it perfectly clear that we are the copyright holders of KSP.

This sounds encouraging. However, the EULA does not allow me to do so. In fact, the paragraph titled "4. COPYRIGHT" explicitly says that no such rights are granted. Between these two conflicting statements, I'm pretty sure the EULA legally wins over an informal FAQ answer.

But let's assume for a moment that somehow Squad considers the FAQ overriding the EULA. Next, in a recent tumblr post, Bob mentioned working on copyright issues (consider this my contribution to the debate by the way). I really appreciate you're thinking about these issues. Well, I go on reading and find this:

The use of the phrase Kerbal in user-generated content. Right now, we try to ask that people don’t use it (it goes on to say, you can use the word under certains conditions, but they'd rather you didn't)

Wait, what?! First of all, you did? How exactly should I have known? I tried to google, but couldn't find any quote by Squad asking us not to use "Kerbal". So, if I hadn't accidentally stumbled upon your blog (which is not even on the official KSP page), I would never have known. To me it's a bit frightening to see a widely visible "Sure, go ahead!" and then find a massive restriction hidden on tumblr. It makes me wonder what else I have missed. I think this clearly shows that there needs to be one central and easy to find page (preferably on the official KSP website) where you put all that stuff.

Second, what exactly do you want us to call Kerbals in user-generated content? I imagine KSP videos that never use "Kerbal" must be pretty awkward. Also it outright contradicts the FAQ because how can you give proper credit without using the word? ("All rights to Those-who-can't-be-named Space Program belong to Squad, buy it on their website at http://www.INSERT-K-WORD-HEREspaceprogram.com"?) Note that they explicitly said "use of the phrase Kerbal in user-generated content", so this is not about selling products under the Kerbal brand (which they quite reasonably don't allow). Again, this calls for a single (non self-contradictory) set of rules for using KSP content.

Don't get me wrong, I understand that Squad have to protect their IP and I appreciate the fact that they allow users to make web content (many other publishers don't). I also understand that they might be hesitant about giving a legally binding permission to youtubers by putting it in the EULA, as this would mean giving up a certain amount of control in case someone does something awful with KSP (which according to rule 34 must already have happed, but I'm afraid of googling that). On the other hand, not having a legally binding permission to use KSP material under certain conditions puts users under permanent threat. For instance, the rules might change at any time and users who published content may suddenly and without warning be threatend with persecution (in some jurisdictions even retroactively). Thus, my second request to Squad is this: Give us some assurance to notify us when you change the rules so we can act (i.e. take the content down) or to first ask people to take down their material before starting legal action.

Finally, let me address two points which I'm sure will turn up in this thread sooner or later: First, the concept of "fair use" does not exists in most parts of the world. So bare in mind that these problems concern some people (continental Europe) more than others (US). Second, to those who will say "But everyone does it, the publishers won't complain because it's free publicity". True, in the majority of countries copyright infringements aren't prosecuted unless the copyright holder asks for it (it's still illegal though). Thus, the probability of getting in trouble is low, assuming (which I do) that Squad genuinely wants user-generated content of KSP on the web. Unfortunately company policies can change and franchises can be sold. Plus, risk is probability times potential loss, and the latter ranges between four figure sums and prison. In other words, the odds might be in your favour, but are you willing to bet your house on that?

[Arsonik]

I don't think the owners of these 500k+ views youtube videos, many which have been up for over a year, are worrying about it to much. I don't think you need to either.

https://www.youtube.com/results?search_query=kerbal&search_sort=video_view_count

[FacialJack]

Is Jeb a deposit name? (Muhahaha)

Edited August 3, 2014 by KasperVld
Removed minor profanity

[jdcr]

Well, I think it's actually the other way round: the more viewers you have, the less you need to worry. See TotalBiscuit vs. Garry's Incident. The really big channels like Scott Manley's might even have explicit permission by Squad (I'm obviously guessing here.)

But as I said, my main concern is not not being caught. It's not wanting to do anything illegal. And respect the developer's wishes (if only they could express those a bit more clearly). Therefore I think it's reasonable and in the interest of small channels to ask Squad to clarify their policy.

[Tank Buddy]

I don't think it's that difficult to mention that SQUAD owns the copyright to KSP, either in the video or description.

Even if the latter of the two statements conflicts with the first, it the first statement was expressly written so that you COULD make YouTube videos, as long as you gave the appropriate credit as to not make it seem like you are the original creator of everything in the video.

You're over thinking it.

[Felsmak]

Herbal Blaze Program it is, then!

[GusTurbo]

I don't think it's that difficult to mention that SQUAD owns the copyright to KSP, either in the video or description.

Even if the latter of the two statements conflicts with the first, it the first statement was expressly written so that you COULD make YouTube videos, as long as you gave the appropriate credit as to not make it seem like you are the original creator of everything in the video.

You're over thinking it.

I don't think he or she is overthinking it. I don't think Squad is going to sue anybody, but one can imagine a situation where Squad comes under new ownership, and the current EULA would open up youtubers to possible liability. It's good to have these sorts of things be clear.

[jdcr]

I don't think it's that difficult to mention that SQUAD owns the copyright to KSP, either in the video or description.

No of course it isn't and I think I made it clear that I'm more than willing to do so. (Whether it should be in the video itself or in the description (or both) is a good point by the way, and another one Squad might clarify.)

I don't think I'm overthinking it, given that according to the blog post things aren't nearly as relaxed as the FAQ might suggest. The obvious, non-overthinking position clearly is "It's copyrighted, EULA doesn't allow using it, so you can't use it, period".

Herbal Blaze Program it is, then!

I like it. Now the question is, will you allow me to use that?

[Col_Jessep]

I like the way Uber Entertainment solved the problem:

http://www.uberent.com/canistreampublishandmonetizevideos/

=3

[cpast]

This sounds encouraging. However, the EULA does not allow me to do so. In fact, the paragraph titled "4. COPYRIGHT" explicitly says that no such rights are granted. Between these two conflicting statements, I'm pretty sure the EULA legally wins over an informal FAQ answer.

No, the EULA says no such rights are granted by the EULA -- as the copyright owners, Squad can give permission to use Kerbal content, and even though the EULA doesn't give permission Squad can give it through other means, and seems to have done just that. It's not copyright infringement if you have permission from the copyright owner, because part of copyright is the right to give permission to do things with copyrighted work to whoever you want.

[Sirrobert]

Well, I think it's actually the other way round: the more viewers you have, the less you need to worry. See TotalBiscuit vs. Garry's Incident. The really big channels like Scott Manley's might even have explicit permission by Squad (I'm obviously guessing here.)

But as I said, my main concern is not not being caught. It's not wanting to do anything illegal. And respect the developer's wishes (if only they could express those a bit more clearly). Therefore I think it's reasonable and in the interest of small channels to ask Squad to clarify their policy.

I don't think you can compare Gary's Incident with this. Those guys were trying to bully what they thought was a small guy, while TB was fully in his right (and had a million fans and a media company behind him).

That said, I don't think Squad has any intention to agressivly deal with content creators. I'm pritty sure they are actually embracing it. See for example, the redirect link they introduced that lets content creators claim a portion of the money from sales caused by them (See this for further info about that)

I'm also pritty sure that there was a dev blog not to long ago where they said they were indeed at work to simplify the media rules (or is that the one you came acros? I don't remember the details) The way I read the 'use Kerbal name' thing, I interpeted it as people using the Kerbal name for original content (so storys about unnamed creatures, and calling them Kerbals).

So I do believe they are working on it. In the meantime, I'm sure you can message Rowsdower (the CM) directly and ask for clairification

[TimePeriod]

A long time ago, I wrote an email to SQUAD asking for permission to use KSP footage on my Youtube channel (in progress-AHEM). I asked for a written permission however the response was as the OP stated, refer to the FAQ as I did not need a written permission.

[Pecan]

To be fair the recent devnotes says they are working on it: http://forum.kerbalspaceprogram.com/threads/88741-Devnote-Tuesdays-The-Administrative-Edition

To be completely unfair - in the same thread when I asked if they had an interim form of words or would accept those I offered (http://forum.kerbalspaceprogram.com/threads/88741-Devnote-Tuesdays-The-Administrative-Edition?p=1317398&viewfull=1#post1317398) I got exactly no response whatsoever.

Since Squad have chosen not to respond in any way at this time we must, by international convention, consider the EULA and subsequent statements (such as quoted above) to be the whole of our agreement. IANAL, rules within your jurisdiction* may vary, and all that, but I damn well am someone who's paid copyright lawyers enough to tell me these things over the years. Nevertheless - have a look at the PDF version of the tutorial in my signature; it has enough blurb on page 1 that whatever Squad come up with later I can show I was attempting to comply with unclear requirements. If you think it might rain, carry an umbrella.

(Just what is the ruling jurisdiction here anyway? I assume Mexico, but I've never seen anything from Squad that says so).

[fairytalefox]

It looks like they are (were?) trying to use law for their profit while not being lawyers. EULA says something just because "hey, we're serious guys and we're doing serious business, let's download some EULA from the internet and put it in our game, nobody reads them anyway but having an EULA is cool".

I really, really hope that Bob's "we're working on it" stands for "we've hired a guy who appears to be a lawyer specialized in IP and now he is working on cleaning out all our copyrights and shmopyrights and EULAs and stuff, stay tuned". And he knows what his employers want to get, and he isn't just like "all corps are the same, all of them want moar money by any means MUAHAHA". And SQUAD actually wants what I think they want.

[No one]

Disclaimer: I am not a lawyer and have no clue what I am talking about.

If it is possible for Squad to give explicit consent to you to use their stuff in youtube videos which bypasses the EULA, wouldn't the FAQ and/or that tumblr post be enough to count as written consent? If Evil Associated does end up taking over Squad and suing you, wouldn't you then be able to point to the blog/tumblr post and say "But they said it was ok!"?

[O-Doc]

I would say this is more about SQUAD ensuring that clarity exists between official KSP content and unofficial, user-generated content. I doubt this issue would even be under discussion if it wasn't for some BM by certain community members who have found themselves over-invested in the game yet lacking the wherewithall to check their egos at the door before interacting with SQUAD.

And that's all I've got to say about that.

[jdcr]

Thank you guys, it's good to know I'm not the only one who's concerned about these issues!

To be fair the recent devnotes says they are working on it: http://forum.kerbalspaceprogram.com/threads/88741-Devnote-Tuesdays-The-Administrative-Edition

Wow, I have no idea how I managed to miss that thread. Thanks for pointing it out to me. Given this, I have to take back some of the things I said, like it being a statement only made on tumblr and not on the official KSP site. I will have a more thourough look at this thread and your PDF.

(Just what is the ruling jurisdiction here anyway? I assume Mexico, but I've never seen anything from Squad that says so).

I'm not a lawyer either, but I'm sure you can sue both in the country of the copyright owner and the one the supposed offender lives in. Plus any other country that recognises some form of intellectual property and doesn't forbid lawsuits between foreigners who could sue in their own countries. I think the US always works.

If it is possible for Squad to give explicit consent to you to use their stuff in youtube videos which bypasses the EULA, wouldn't the FAQ and/or that tumblr post be enough to count as written consent?

I don't think it would. Where I live, whatever the website says is irrelevant just because it's not signed. Apart from a very limited number of things (like EULAs which you have to accept explicitly by clicking a button or standard business conditions hanging in a shop's window) every contract needs either to be verbal and have a witness or be in writing and signed. Again this depends heavily on the jurisdiction in question, but I guess no matter where you are, a good enough lawyer would manage to invalidate some statement on the website, especially when it's unclear and contradicting others.