Public Performance, Performing Public.

TwitchPlaysPokemon” has a morbidly fascinating quality. I was never very in to Pokemon- despite my best efforts-, but TPP is like watching one of those funny animal GIFs, except with much longer watchability.

I’ve found really interesting, both culturally and legally. I’m still unreasonably elated about the idea of videogames as a professional spectator sport, but the potential for legal issues for Twitch’s service (EULA and ToS agreements not withstanding) is deeply fascinating. I think TPP is a great example of what I mean. I am going to be overly broad in this analysis to make a more general point about how new uses of new technology challenges copyright law. A more thorough explication of the details of this issue can be found here.

The core legal ISSUE I want to pick on is the potential to claim that Twitch Plays Pokemon is a copyright infringement. Of course, copyright law is aimed primarily at prohibiting the distribution of unauthorized copies of a work to the public. Copyright law also prohibits unauthorized works based on an original work. These are called “derivative works.” Derivative works can be permitted either if the original author gives permission, or if the new work is fair use.

THE ANALYSIS hinges on how we define TwitchPlaysPokemon. If TPP is a way to allow thousands of unauthorized users to use a product, it’s definitely infringement. This is the argument that it’s basically Napster for Pokemon- you log on, you play a game made and owned by Nintendo that you didn’t pay Nintendo to play.

In contrast, we might define TPP as a new experiment in gaming perspectives; a sort of social performance art project. We might highlight the difference between playing Pokemon, alone and on your own personal device, and playing Pokemon with thousands of other simultaneous users, with confusing and incoherent gameplay. Seen this way, TPP is derived from Pokemon, but is Transformative: something new and original has been added that changes the fundamental character of the copyrighted work. This transformative quality (if it exists), combined with the point that TPP is a non-commercial project (at least to some extent; let us suppose that the creator is not monetizing views), is a strong case for finding an exception to the derivative works rule under fair use (see Campbell v. Acuff-Rose, 1988).

THE POINT is that I personally favor the argument that TPP is transformative, even though most legal minds seem likely to agree that it is just an infringing derivative work. I think there’s good reason for lawyers to think that way. If it went to court, I think the law favors Nintendo’s side. But this is why I think TPP (and Twitch, generally) is an interesting innovation: it raises some new twists on IP law, and the outcomes aren’t always clear, obvious, or incontrovertible.

Of course, the BUSINESS bottom line is that Nintendo probably doesn’t want to raise any of these legal questions or file any kind of legal action because the free advertising is amazing. Pokemon probably hasn’t gotten this much buzz in at least a decade- why fight that?