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copyright, 24(2) Tex. Intell. Prop. L.J. 215 (2016).

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copyright. Texas Intellectual Property Law Journal, 24(2), 215-244.

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and Copyright," Texas Intellectual Property Law Journal 24, no. 2 (2016): 215-244

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Shigenori Matsui, "Does It Have to Be a Copyright Infringement: Live Game Streaming
and Copyright" (2016) 24:2 Tex Intell Prop LJ 215.

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Shigenori Matsui, 'Does It Have to Be a Copyright Infringement: Live Game Streaming
and Copyright' (2016) 24(2) Texas Intellectual Property Law Journal 215.

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and Copyright." Texas Intellectual Property Law Journal, vol. 24, no. 2, 2016, p.
215-244. HeinOnline.

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Shigenori Matsui, 'Does It Have to Be a Copyright Infringement: Live Game Streaming
and Copyright' (2016) 24 Tex Intell Prop LJ 215

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Does it have to be a Copyright Infringement?: Live Game
Streaming and Copyright

Shigenori Matsui*

I. Introduction.............................................216
II. Live Game Streaming and Online Video Games....................217
A. Online Video Games .................. ................ 217
B. Live Game Streaming..................................218
III. Live Game Streaming and Copyright............................220
A. Copyright........................ ................. 220
B. Game Players.......................................222
C. Internet Service Provider or Platform................223
D. Viewers......................... .................. 226

HI. Tolerated Infringement.....................................227

A. Almost No One Complains.............................227
B. Comparison with the United States ...................... 230

IV. Legalizing Tolerated Infringement.............................235

.. . . . . . . . . . . . . . . . . . . . . . . . . 235
A. Is This an Appropriate Solution?
B. Introduction of the General Fair Use Defense...........238
C. Alternative Solutions..................................239
D. Toward an Alternative Copyright Regime ................... 241

V. Conclusion...............................................244

Online video gaming has become very popular in Japan as well as in the United
States. One of the reasons for the increasing popularity of online video gaming is
the availability of live game streaming. Live game streaming allows game players to
upload live gameplay or live stream it online. It created the joy of sharing gameplay
with other players and of watching other players playing a game. It is agreed that
such activities are illegal copyright infringement in Japan. However, many game
players upload live gameplay or live stream it online. Several platforms also
actively solicit uploading and live streaming by game players. Apparently, these
acts are tolerated because it is likely that they promote the popularity of video
gaming and increase the number of players. These activities are "tolerated
infringement," technically and theoretically illegal copyright infringement, which
are tolerated by copyright holders. But do these activities really have to be
copyright infiringement? Do they also have to be illegal? This paper argues that the

215
 216 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL [Vol. 24:215

current situation is unhealthy and suggests copyright reform to deny that these
activities constitute copyright infringement or to legalize them.

I. Introduction

Online video gaming has become very popular in Japan as well as in the United
States. The Japan Online Game Organization reported that the domestic market for
online video games in 2013 was 842.3 billion yen (US$8 billion by the current
exchange rate of 105JPY to US 1$),' and international sales of Japanese online video
games reached 173.6 billion yen (US$1.65 billion). 2 The market for online video
gaming is quickly expanding. One research company predicted that the global
market for online video games is expected to grow from $63 billion in 2012 to $79
billion in 2017.3 In particular, mobile video games, online video games for
smartphones and tablets, are the fastest growing segment of the industry.

One of the reasons for the increased popularity of the online video game is the
availability of live game streaming. Live game streaming consists of uploading live
gameplay and live streaming by game players online. In other words, live game
streaming allows game players to record and upload live gameplay or live stream
their play so that anyone else can enjoy watching them play. Streaming gameplay to
the web often increases the enjoyment of online video gaming. There is no doubt
that this kind of live game streaming significantly contributes to boost the
popularity of online video games.

However, live game streaming presents serious copyright infringement issues.

There is a consensus in Japan that live game streaming without authorization is
copyright infringement and is illegal. Nevertheless, many gamer players upload
their live gameplays or live stream their plays. Even so, video game companies
generally have not challenged this conduct. Indeed, some video game companies
have decided to incorporate into their video games a capacity to upload live
gameplay and stream it online. There are also several platforms on the web which
allow game players to upload or live stream their plays. Generally, video game
companies have not taken any action against these platforms either. As a result,
there is a wide gap between the text of the statute and acts that are generally
accepted.

* Professor of Law, University of British Columbia, Peter A. Allard School of Law.

4gamers.net, 2013nen no kokunai online game shjoukibo wa 8423oku yen: Nihon online game
kyoukai ga shijouchousa report no 2014nendo ban wo hatsubai [Domestic Online Game Market
for 2013 Was 842.3 Billion Yen: Japan Online Game Association Published Its 2014 Market
Report] (Jul. 18, 2014), http://www.4gamer.net/games/999/G999905/20140718018/.
2 Id
3 SteamFeed Admin, DFC Intelligence Forecasts Worldwide Online Game Market to Reach $79
Billion by 2017, SteamFeed (June 4, 2013), http://www.steamfeed.com/dfc-intelligence-forecasts-
worldwide-online-game-market-to-reach-79-billion-by-2017/.
2016] Does Live Game Streaming have to be Copyright? 217

Practical treatment of these gaming activities is one example of "tolerated use,"

as Professor Tim Wu has pointed out. 4 This kind of use of copyrighted work is
technically and theoretically illegal but tolerated by copyright holders. I suggest
using the term "tolerated infringement," because such acts are still illegal copyright
infringement, even though they are tolerated. There are many examples of tolerated
infringement of copyright in Japan, but does this activity have to be copyright
infringement in the first place? Should it be illegal?

This paper argues that the prevalence of such tolerated infringement in the
world of copyright is unhealthy and inappropriate. The protection granted to such
tolerated infringement is ambiguous and unpredictable. It does not assure users that
their use will be tolerated; such tolerated infringement wholly depends upon the
mercy and whim of the copyright holder. Solutions to legalize such tolerated
infringement need to be found. This paper examines various propositions and
considers the possibility of an alternative copyright protection regime.

II. Live Game Streaming and Online Video Games

A. Online Video Games

Online video games are video games played by using a computer network,
5
generally by using an Internet connection with high-speed access. Video game
software may be sold as a package and installed on the computer, or video gaming
devices may have Internet capability and video game software with Internet access.
Video game software itself may be downloaded from the Internet. An increasing
number of online video games use applications downloaded to the smartphone or
tablet and are played by connecting with a webserver.

The most popular types of online video games are MORPG/MMORPG.

MORPG stands for Multiplayer Online Role-Playing Game and MMORPG stands
for Massively Multiplayer Online Role-Playing Game. The difference between the
two is a matter of degree: MMORPG allows a large number of players to share the
same game environment, while MORPG limits the number of players sharing the
same game environment.6 MMORPG became popular with the launch of Ultima
Online in 1997.7 Some of the most popular online video games worldwide include
Cross Fire, League of Legends, World of Warcraft, DOTA 2, Counter-Strike:
Global Offensive, and Smite.

4 Tim Wu, Tolerated Use, 31 Colum. J. L. & Arts 617 (2008).

5 WiseGEEK, What is Online Gaming?, http://www.wisegeek.com/what-is-online-gamiing.htm.
6 MORPG, Gpedia, http://www.gpediajp/w/202; Forum: Difference betw MMORPG-MORPG
&

MOBA Games ., MMOSITE,

http://forum.mmosite.com/thread/2/2/20130125/Difference-betwMMORPGMORPGMOBAGa
mes-5102b1d019242b313-1.html. 2
7 Ultima Online, MMORPG.com, http://www.mmorpg.com/gamelist.cfim/game/1
.

Statista, Most played PC games on gamingplatform Raptr in November 2015, by share ofplaying
218 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL [Vol. 24:215

Online video games may be played by paying a fixed monthly charge, but the
item charge system has also become quite popular. Sometimes playing a video
game itself is free but the player must pay to purchase an item. Sometimes the
player may play a video game with a fixed monthly charge and must also pay
additional charges to purchase items. Such items can be expensive and may be used
to improve one's combat ability, but sometimes the items merely serve a decorative
purpose and have nothing to do with the ability to participate in the video game.9

B. Live Game Streaming

There are two types of live game streaming. One is uploading live gameplay,
and the other is live broadcasting, also known as live streaming. Uploading live
gameplay allows the player to record his or her live gameplay and upload a video of
it to the Internet. Live streaming is streaming a player's gameplay simultaneously
with that play.

Some game players prefer uploading live gameplay. When one is playing a
game on a video gaming device or on a TV, his or her video game screen needs to
be captured by a capture board that is connected to a computer, in order to be
recorded on that computer. If one is playing a game on a computer, his or her video
game screen needs to be recorded using capture software. If one is playing a game
on an iPhone, his or her video game screen needs to be sent to a computer by using
the Airplay mirroring function and will be captured wirelessly by using
transmission software such as AirServer or Reflector to be recorded on that
computer. Voices can be added using a microphone, and players will often explain
or comment on the play while playing. Players can also add impressions or
suggestions for other players. They can also add music as a background for their
videos. Then, they can use video editing software to edit the gameplay. In order for
a player to upload the video to websites such as YouTube, he or she needs to edit
the video in order to convert it to the required file format. As there are time and size
limits on each video clip for YouTube, the player needs to cut down the video clip
to conform to these limits before he or she uploads it. When it has finished
uploading, the player needs to click the share button to make the video clip
available to other users.' 0

Some video gaming devices, such as PS4 and Xbox One, have the ability to
record gameplay and upload it directly to YouTube, which renders the complicated

time, http://www.statista.com/statistics/251222/most-played-pc-games/.
9 Nathan Gibson, 10 of the Most Expensive Virtual Items in Video Games, TheRichest (Nov. 15,
2014), http://www.therichest.com/rich-list/most-popular/10-of-the-most-expensive-virtual-items-
in-video-games/. For legal questions raised by the popularity of expensive virtual items, see Leah
Shen, Who Owns the Virtual Items?, 9 Duke L. & Tech. Rev. 1 (2010).
10 For details of the method of recording the gameplay and uploading the video on Nico Nico Douga,
see Niko Niko de game jikkyo [How to Upload Live Game Play on Nico Nico],
http://wwwl8.atwiki.jp/live2ch/pages/142.html.
2016] Does Live Game Streaming have to be Copyright? 219

paths described above irrelevant. Uploading live gameplay is much simpler on these
video gaming devices.

For those who prefer live broadcasting or live streaming rather than uploading,
they can capture the game screen of their video gaming device using capture
software and use transmission software to connect with open broadcasting platforms
such as Nico Nico Douga and broadcast their gameplay (Nico Nico live
broadcasting)." Players can use their PS4 or Xbox One to live broadcast their
gameplay as well. Some platforms will not keep a streaming video after it was
streamed, though others keep them for future access (video on demand).

In both instances, the uploaded video or live broadcasting can be viewed using
"streaming" technology. Streaming is a way to download a file from the Internet,
but unlike normal downloading, which opens or plays a file after the downloading is
completed, streaming allows the file to be played as it downloads. Generally,
streaming will not leave any files remaining after they are watched. However, some
platforms such as YouTube or Nico Nico Douga, two of the most popular game
streaming platforms, actually use progressive downloading instead of pure
streaming.12 Both forms of streaming allow playing while downloading, but
progressive downloading leaves the file formatted as a temporary file after it plays,
as distinguished from pure streaming. Most often players do not realize the
difference between two.

Uploading or live broadcasting can be done for all sorts of video games, not just
online video games. Indeed, these technologies are available for all kinds of content
as well. Online video games allow multiple players to participate in a battle at the
same time, and therefore give additional incentive for gamers to share their play. A
player can play a video game against other participants online, with some video
games allowing multiple players to share screens with each other and live stream
the gameplay online. Uploading and live broadcasting provide enjoyment beyond
just playing a video game: playing a game while sharing that play with other
players. Further, other players might develop interest in the game by watching
players actually play it. It is therefore expected that uploading or live broadcasting
will increase the number of players and promote the popularity of video games.

" For details of the method of live broadcasting of live gameplay on Nico Nico Douga, see Nico
Nico Nama hosou [Live Broadcasting on Nico Nico],
http://wwwl8.atwiki.jp/live2ch/pages/183.html.
12 For the difference between streaming and progressive downloading, see Dave Nelson, Windows
Media Server or Web Server?, Microsoft Windows Media (May 15, 2008),
http://www.iis.net/leam/media/windows-media-services/windows-media-server-or-web-server;
Doug Mow, Streaming vs. Progressive Download, Streammedia.com,
http://www.streamingmedia.com/Articles/Editorial/Featured-Articles/Streaming-vs.-Progressive-
Download-65076.aspx.
220 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL [Vol. 24:215

Moreover, there are national or regional tournaments that are held between
multiple participants of the same online game. 13 Often, these tournaments are live
broadcast so that everyone can watch the video gameplay at the same time. Live
broadcasting is thus likely to promote national tournaments and increase the number
of participants, thereby also increasing the number of players and promoting the
popularity of the broadcasted video games.

However, there is just one major problem in the law for such conduct:
copyright.

IH. Live Game Streaming and Copyright

A. Copyright

The Japanese Copyright Act1 4 grants the author of a work certain exclusive
rights as copyright." Included within copyright are the rights of reproduction1 6 and
public transmission.17 Therefore, when someone other than the copyright holder
makes a copy of the work, it is a copyright infringement. The right of public
transmission includes wireless broadcasting and cable transmission, as well as
transmission on the Internet and automatic transmission triggered upon the request
of individual users.18 The right of public transmission also includes the right to
make the work transmittable.' 9 Therefore, merely uploading the copyrighted work
onto the Internet, making it transmittable upon clicking, is a copyright infringement
if it is done by anyone other than the copyright holder.2 0

13 See Richard Nieva, Video Gaming on the Pro Tour, ForGlory but Little Gold, N.Y. TIMES, Nov.
28, 2012, http://www.nytimes.com/2012/11/29/technology/personaltech/video-gaming-on-the-pro-
tour-for-glory-but-little-gold.html (discussing growth and operations of video game tournaments).
14 Chosakukenh6 [Copyright Act], Law No. 48 of 1970 (Japan), translated in Copyright Law of
Japan, Copyright Research and Information Institute (Oct. 2015), available at
http://www.cric.or.jp/english/clj/doc/20151001_October,2015_CopyrightLaw-ofJapan.pdf
(hereinafter cited as Chosakukenho [Copyright Act]).
15 Id. at art. 17, and arts. 21-28.
1 Id. at art. 21.
17 Id. at art. 23.
18 Id. at art. 2, no. 9-4.
19 Id. at art. 2, no. 9-5.
20 The copyright holder also has a right of screen presentation and
this right is infringed, for example,
when someone presents a movie to the public without authorization. Id. at art. 22-2. The copyright
holder also has a right of public presentation upon receiving public transmission using reception
devices. Id. at art. 23, para. 2. Broadcasting companies also have a neighboring right of public
presentation upon receiving broadcasting of television programs. Id. at art. 100. However, when a
barber shop owner allows its customers to watch regular television programs while waiting using a
regular television reception set, display of the television program does not significantly contribute
to the profit of the owner and such owners are exempted from the public presentation right
infringement. Id. at art. 38, para. 1. It is also legal to present television program using "ordinary
television reception device for family" even if the purpose is to promote economic interest. Id. art.
38, para. 3. However, the sports bar, using very big screen and presenting sports programs, maybe
different.
2016] Does Live Game Streaming have to be Copyright? 221

The Japanese Copyright Act also grants certain moral rights to copyright
holders.2 1 Included in the moral rights is the right to integrity of the work.22 When
someone other than the copyright holder changes or modifies the work without
approval, the change or modification is an infringement of the right to integrity.
Such changes or modifications are likely to infringe the adaptation right of the
copyright holder as well.23

There is no doubt that video games are protected by copyright, but how they
should be protected was not clear at the beginning. Video games could be protected
as regular literary works, or as cinematographic works. After copyright on computer
programs was explicitly added to the Copyright Act, it became apparent that video
game software would be protected as a program work.24 Nevertheless, this issue
remains important because of two critical differences between regular literary work
and cinematographic work. First, the copyright protection period is significantly
different. A much longer copyright protection period is possible for a
cinematographic work: for regular literary works, the period is fifty years after the
death of the author for regular literary work, 25 while it is seventy years after the
publication for cinematographic work.26 Second, the right of distribution is granted
only to cinematographic work.27 This right of distribution was granted to the
copyright holder of a cinematographic work (that is to say, a movie) in an effort to
control the distribution of movies shown in theaters, and also to reserve the right to
sell, resell, or rent the movie. As a result, the first sale doctrine, usually applicable
to sales of copyrighted materials such as books, is not applicable to movies.

The Supreme Court of Japan has affirmed that video games should be protected
as cinematographic works. 28 However, that Court distinguished regular movies to be
shown in movie theaters from home video games which are sold as a package, and
stated that the first sale doctrine should be applied to home video game software
even though it is protected as a cinematographic work. 29 As a result, whether game
software is protected as regular literary work, program work, or cinematographic
work does not matter except in connection with the duration of the copyright
period.30

21 Id. at art. 18-20.

22 Id. at art. 20, para. 1.
23 Id. at art. 27.
24 Id. at art. 10, para. 1, no. 9.
25 Id. at art. 51, 54.
26 Id. at art. 54.
27 Id at art. 26. On the other hand, copyright holders of cinematographic work do not have a right to
provide the work to the public by selling its reproduction. Id at art. 26-2.
28 Saik6 Saibansho [Sup. Ct.], Jul. 1, 1997, 3r petty bench, 51 Saik6 Saibansho Minji Hanreishu
[Minshu] 2295 (Japan); Saik6 Saibansho [Sup.Ct.], Apr. 25, 2002, 1st petty bench, 55 Saik6
Saibansho Minji Hanreishu [Minshu] 87 (Japan).
29 Saik6 Saibansho [Sup. Ct.], Jul. 1, 1997, 3 rd petty bench, 51 Saik6 Saibansho Minji Hanreishu
[Minshu] 2295 (Japan).
30 Based on the Trans Pacific Partnership (TPP) Agreement, the Japanese government submitted
a
222 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL [Vol. 24:215

B. Game Players

Since video games are protected as cinematographic work, recording video

gameplay and uploading videos of gameplay are actions considered copyright
infringement. When someone other than the copyright holder captures an image of a
game using a capture board into a computer screen, he or she is creating a
reproduction. If a person then records that image on the computer hard-drive, that is
also a reproduction. When a person edits the video and converts it for uploading,
that could also be an infringement of the right to integrity. Finally, uploading the
video to the Internet is also an infringement of the right of reproduction and the
right of public transmission, which include the right to make the work transmittable.

Again, when someone other than the copyright holder captures a video game
screen through a capturing device, for the purpose of live broadcasting or live
streaming, that person is creating a reproduction and infringing the right of
reproduction held by the copyright holder. Finally, live broadcasting and live
streaming both infringe the right of public transmission, including the right to make
the work transmittable.31

Even when there has been a copyright infringement, a user may invoke legal
excuses to avoid liability. Unlike in the United States, where a comprehensive fair
use exemption is incorporated into the Copyright Act,3 2 the Japanese Copyright Act
presumes that copyright infringement is illegal unless explicitly authorized by
specific provisions in the Japanese Copyright Act 3 3 Therefore, in Japan, it is
important to find express provisions in order to claim a defense against copyright
infringement.

bill to amend various statutes in order to conform to the requirements adopted in the agreement.
Kan taiheiy6 partnership kyotei no teiketsu ni tomonau kankeih6ritsu no seibi ni kansuru horitsuan
[Act concerning Necessary Amendments to Relevant Statutes in Light of the Trans Pacific
Partnership Agreement Bill], Shugiin [House of Representatives], 190th Diet, Cabinet bill No. 47,
http://www.shugiin.go.jp/internet/itdbgian.nsf/html/gian/honbun/houan/gl9005047.htm (TPP
Agreement bill). One of the amendments included is an amendment to the Copyright Act to
extend the copyright protection period for all literary works to 70 years after the death of the
author. Id. at art. 8, amending art. 51 of the Copyright Act. If this bill is passed and if this
amendment takes effect when the Trans Pacific Partnership Agreement takes effect with respect to
Japan, then there would be not much difference with respect to copyright protection period
between literary works and cinematographic works.
31 If the organizer of a game tournament hooks up the video game display to a big monitor display in
the tournament forum and shows the game screen to the audience, it could be an infringement of
the right of screen presentation. If the organizer sets up a big monitor screen in the game
tournament forum to show a video game fight upon receiving public transmission from the
Internet, it could be an infringement of the right of public presentation. See supra note 20.
32 Copyright Act, 17 U.S.C § 107 (1992).
3 See generally Tokyo K6ta Saibansho [Tokyo High Ct.], Oct. 27, 1994, 1524 Hanrei jih6 118
(Japan)(holding that there is no general fair use defense available in Japan).
.
2016] Does Live Game Streaming have to be Copyright? 223

One of the most important defenses is the exemption for reproduction for
personal use.34 Players can record their live video gameplay for their own
enjoyment so long as the reproduction is limited to personal use. But when the
purpose of reproduction is for uploading, it is beyond the scope of personal use and
no exemption is applicable. Capturing a video screen, recording it, and uploading it
cannot be excused as reproduction for personal use. Moreover, pubic transmission,
including making the work transmittable, is not excused by the personal
reproduction exemption. There is no defense available for public transmission.
Therefore, recording live gameplay for the purpose of uploading it on the Internet
and uploading it on the Internet clearly constitutes copyright infringement. There is
also no available defense for live streaming either, so that activity is also a
copyright infringement.

Because both types of live game streaming are illegal copyright infringements,
the copyright holder is allowed to seek a damage award3 as well as an injunction
against copyright infringement.3 6 The copyright holder may also file a criminal
complaint to the police to prompt a police investigation, and prosecutors can charge
a person with criminal copyright infringement as well. Possible punishment for
copyright infringement is quite severe and includes imprisonment for not more than
ten years. 37 Moreover, unlike in the United States, 38 there is no threshold
requirement for criminal punishment: theoretically, the court can convict a
defendant for copyright infringement for just a single instance of infringement, even
if the damage to the copyright holder is merely one cent. As long as the defendant
infringed a copyright without an exemption, there is no way to avoid conviction.
Unlike in the United States, criminal enforcement of copyright is quite active in
Japan: many ordinary users are convicted for copyright infringement for sharing
copyrighted work through file sharing software.39

C. Internet Service Provider or Platform

The copyright holder can also seek civil remedies against the Internet service
providers or platforms or website managers such as YouTube or Nico Nico Douga,
which allow users to upload videos of live gameplay or to live broadcast or stream
it. In Japan, even when the user uploads a copyrighted materials on the website
managed by the Internet service provider or website manager, the courts will decide

34 Chosakukenho [Copyright Act], art. 30, para. 1.

35 Minp6 [Civ. C.], art. 709 (Japan).
36 Chosakukenho [Copyright Act], art. 102.
3 Id. at art. 119, para. 1.
38 Copyright Act, 17 U.S.C. § 506 (2008).
3 Salil K. Mehra, Software as Crime: Japan, the United States and Contributory Copyright
Infringement, 79 Tul. L. Rev. 265 (2004) (discussing criminal enforcement of copyright
infringement in the United States); Salil K. Mehra, Keep America Exceptional!Against Japanese
and European-Style Criminalizationof Contributory Copyright Infringement, 13 Vand. J. Ent.
&

Tech. L. 811 (2011) (discussing criminal enforcement against contributor copyright infringement
in connection with file sharing in Japan).
224 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL [Vol. 24:215

who infringed the copyright by considering what is the nature of the copyright
infringement, who actual controls the infringement and who will benefit by the
infringement.40 If the Internet service provider or website manager actively solicits
the infringement or if the Internet service provider or website manager fails to take
down copyright infringing materials after noticing their existence, then that Internet
service provider or website manager could be viewed as transmitting copyrighted
materials to the public. Therefore, the Internet service provider or website manager
could be held liable for direct copyright infringement. 4 1 Even when it were difficult
to find direct infringement, the Internet service provider or website manager could
be held liable for its indirect contribution to the copyright infringement.4 2

Under the Japanese Provider Liability Limitation Act, 4 3 however, when an

Internet service provider or website manager provides an opportunity for users to
upload right-infringing information on the server, except when the Internet service
provider or website manager is a sender of that information, the Internet service
provider or website manager can be held liable only when two conditions are met:
first, when it was possible for the Internet service provider or website manager to
block or remove the right-infringing information, and second, when the Internet
service provider or website manager knows that the right-infringing information
was stored or should have known that the right-infringing information was stored."

The Provider Liability Limitation Act also allows the Internet service provider
or website manager to take down uploaded information when it believes the
information is inappropriate, without incurring any liability to the uploader. 4 5 It
also allows the Internet service provider or website manager to remove the right-
infringing information when the victimized copyright holder sends a notice to the
Internet service provider or website manager, the Internet service provider or

4 Saik6 Saibansho [Sup.Ct.], Jan. 18, 2011, 3 rd petty bench, 65 Saik6 Saibansho Minji Hanreishu
[Minshu] 121 (Japan).
41 Chosakukenh6 [Copyright Act], art. 112, para. 1.
42 Whether the Internet service provider of website manager is liable for direct infringement or
indirect contribution might matter because art. 112 of the Copyright Act has been construed to
allow injunction only against direct infringement. As a result, it is necessary to view the Internet
service provider or website manager as directly infringing copyright in order to issue injunction
against it. However, if art. 112 could be construed to allow injunction also against indirect
contribution, the difference might not matter much. Katsumi Yoshida, Chosakuken no kansetsu
shingai to sashitome seikyu [Indirect Copyright Infringement and Injunction], 14 Chitekizaisan
houseisakugaku kenkyu 143 (2007).
43 Tokutei denki tsushin ekimu teikyousha no songaibaishou sekinin no seigen oyobi hasshinsha
jouhou no kaiji nikansuru h6ritsu [Act on Limitation of Damage Liability of Specified
Telecommunication Service Providers and on Disclosure of Sender Information], Law No. 137 of
2001(Japan)(cited as Provider Liability Limitation Act).
4 Id. at art. 3, para. 1. The Provider Liability Limitation Act grants this immunity to "specified
telecommunication service provider," which would include the Internet service provider or website
manager. Id. at art. 2, no.3. But since the immunity is not granted when the service provider was a
sender of the information at issue, the immunity is not granted to content provider.
45 Id. at art. 3, para. 2, no. 1.
2016] Does Live Game Streaming have to be Copyright? 225

website manager sends that notice to the person who uploaded the information
seeking consent for removal, and when the person does not refuse to grant consent
within seven days.4 6 Therefore, the copyright holder can send a notice to the
Internet service provider or website manager to take infringing material down and
file a suit asking for damages if the Internet service provider or website manager
fails to take it down after seven days.

Platforms such as YouTube or Nico Nico Douga can block or delete copyright-
infringing information, and the first requirement for establishing website manager's
liability would thus be satisfied. The copyright holder can simply send a notice to
the platform regarding the copyright-infringing information. If the platform does not
remove the copyright infringing information from its server after seven days, the
copyright holder can seek a damage award from the platform. Moreover, there may
be no need to send a notice when it is apparent that a platform by allowing
uploading of copyright infringing information to the platform should have known
that it is hosting copyright infringing information. In that case, a copyright holder
can seek a damage award even without any notice to take down the information.

Furthermore, since the limitation of liability in the Provider Liability Limitation

Act is not applicable when the provider is a sender of the information, many courts
hold that Internet service provider or website manager who actively solicited
uploading illegal information should be regarded as sender and not merely as
storage manager.4 7 As a result, when platforms actively solicit copyright
infringement, they may lose protection under the Provider Liability Limitation
8
Act. 4

Although platforms such as YouTube and Nico Nico Douga warn about
possible copyright infringement, it could be argued that they are actively soliciting
the uploading of illegal game videos or illegal live streaming and are profiting from
this conduct. Therefore, it could also be argued that they are senders, who are not
entitled to enjoy the limitation of liability. There is a very good possibility that
copyright holders could seek damage awards against these platforms in Japan.49

46 Id. at art. 3, para, 2, no. 2.

47 Tokyo Chih6 Saibansho [Tokyo Dist. Ct.], Nov. 13, 2009, 2076 Hanrei Jih6 93 (Japan)(TV Break
Case); Chitekizaisan K6t6 Saibansho [Intellectual Property High Ct.], Sept. 8, 2010, 2115 Hanrei
Jih6 102 (Japan)(appeal).
48 Yoshiyuki Tamura, Nihon no chosakukenha no reform ron-Digital ka Jidai/Internetjidai no
kouzoutekikadai no kokuhuku numukete [Reform Proposals of Japanese Copyright Act: Toward
the Solution of the Structural Problems in the Digitalized Age based on the Internet], 44
Chitekizaisan hoseisakugaku kenkyu 25, 83 (2014) (Japan).
49 Nico Nico Douga has a license to use music works from major music copyright management
organizations and to allow users to include music from these organizations in uploaded videos and
live broadcasting. Nico Nico Douga, Ongakuchosakubutsu oyobi ongakugenban no riyou
nikansuru guideline [Guideline for Using Copyrighted Music Works and Music Original Sources],
http://ex.nicovideo.jp/base/licenseguideline (last visited Jan. 13, 2016). However, the use of
unauthorized music is still illegal.
226 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL [Vol. 24:215

Moreover, the Provider Liability Limitation Act only limits liability for
damages for the Internet service provider or website manager.50 Copyright holders
can still seek injunctions against these platforms and the Provider Liability
Limitation Act will not prevent the court from issuing an injunction against them.5

'
Furthermore, there are some decisions that hold the Internet service provider or
website manager criminally liable for actively soliciting the uploading of illegal
obscene pictures to the web.52 Since copyright infringement is a crime in Japan, the
platforms that actively solicit the uploading of illegal copyright infringing videos of
live play or live streaming could be held criminally liable as well.

D. Viewers

It is not only those who upload videos of live gameplay or live broadcast or
stream gameplay who might be held liable, but those who watch and download
them might be liable as well. When a viewer plays the uploaded video on the web,
the content will be read into the random access memory (RAM) of the computer,
creating a temporary reproduction. Initially, it was unclear whether creating such a
temporary reproduction for the purpose of watching the video is an infringement of
the right of reproduction. The 2009 amendment to the Copyright Act clarified that a
reproduction made during the course of computer information processing is
permissible, when receiving information by wireless transmission or cable
telecommunication,5 or when using telecommunication technology,5 4 in order to
provide information smoothly and efficiently. It is, however, illegal to make a
reproduction even for the purpose of personal use if the user records digital audio or
visual content from the Internet,5 5 and therefore making a reproduction for
downloading audio or visual content from the Internet is illegal.

It is illegal for viewers to download and save the videos from the Internet onto
their hard drives. But is simply watching uploaded video or live broadcast or
streaming also illegal? The generally accepted view is that streaming will not
produce a recording or reproduction during the course of streaming and so is not
illegal, since it will leave no data after viewing.' 6 However, if you watch a video on
YouTube, progressive download technology is used and the files will be
downloaded into a temporary file after watching. Therefore, it is difficult to say that

SO Provider Liability Limitation Act, art. 1.

5 Tamura, supra note 48, at 83.
52 Kyoto Chih6 Saibansho [Kyoto Dist. Ct.], Sept. 24, 1997, 1638 Hanrei Jih6 160 (Japan)
(holding
website manager liable for actively soliciting uploading of obscene pictures); Osaka K6t6
Saibansho [Osaka High Ct.], Aug. 26, 1999, 1064 Hanrei Times 239 (Japan) (same).
53 Chosakukenh6 [Copyright Act], art. 47-8.
' Id. at art. 47-9.
s5 Id. at art. 30, para. 1, no. 3.
56 Bunkach6 [Agency for Cultural Affairs], Ihou download no keijibatsuka nitsuiteno Q&A [Q&A on
Criminalization of Illegal Downloading] (Jul. 24, 2012),
http://www.bunka.go.jp/seisakulchosakuken/hokaisei/downloadqalpdf/dlqaver2.pdf.
2016] Does Live Game Streaming have to be Copyright? 227

this form of viewing does not create a recording. The Agency for Cultural Affairs
now insists that such recording is exempted by immunity for temporary recording
during the course of computer information processing, in order to provide
information smoothly and efficiently, and is legal. It is possible that a viewer who
simply watches live gameplay uploaded or a live broadcast or streaming thus may
not be held liable, but this has not yet been settled by the courts. The courts may not
agree with the Agency for Cultural Affairs and might hold viewers liable for
copyright infringement. If it is illegal, the viewer could face not only civil liability
but also criminal punishment for recording audio or visual content from the
Internet.

II. Tolerated Infringement

A. Almost No One Complains

Despite its clear illegality, large numbers of game players upload live gameplay
or streaming it on YouTube or Nico Nico Douga in Japan. With respect to Nico
Nico Douga, for instance, the number of videos uploaded with the tag "live
gameplay" amounts to 740,000 and comprises 13% of all uploaded videos. 5 9 Nico
Nico Douga has a special comer for live gameplay uploads. Nico Nico Douga also
features live broadcasting and many game players live stream their gameplays.
Although Nico Nico Douga warns about possible copyright infringement, game
players are not apparently intimidated by the warning and it also appears that Nico
Nico Douga is not concerned about allowing illegal uploading or live streaming.

This apathy by platforms is evidently a result of the attitude of major game

software companies; they have not filed any complaint or civil action against
gainers or against platforms, which carry uploaded live gameplay videos or allow
live streaming online. They also have not sent any notices of take-down to these
platforms, nor have they filed criminal complaints to trigger criminal punishment
for copyright infringement.

There was, however, one instance of trouble. The adult game maker, Aile,
strongly protested to the uploading of live gameplay on Nico Nico Douga in 2011,
but it appears as though the issue was resolved between the parties by a monetary
settlement. 60 Details of the deal were not disclosed and we do not know the terms or
amount of the settlement. It appears that the president of the game company was

5 Id. (citing Chosakukenh6 [Copyright Act], art. 47-8).

58 Chosakukenh6 [Copyright Act], art. 119, para. 3.
59 Niconico Pedia, http://dic.nicovideo.jp/a/ 0Cfi'(lii(last visited Jan. 12, 2016).
6o Nico Nico Douga ni Game Jikkyou play wo up shiteita user, maker ni jidankinwo shiharaukotoni
[User Who Uploaded the Live Video Game Play on Nico Nico Douga Agrees to Pay Settlement
Money to Video Game Maker], DIGITAL MAGAZINE, Nov. 30, 2011,
http://digimaga.net/20 11/1 1/nicovideo-game-live-player-pay-a-settlement.
228 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL [Vol. 24:215

very upset and would not allow such blatant copyright infingement.6 1 He also
claimed that uploading such live gameplay was an insult to other players.62

However, the Aile situation was exceptional. Indeed, an increasing number of

games, such as Final Fantasy XIV, produced by S uare Enix, now explicitly allow
the uploading of live gameplay or live streaming. Most game companies do not
allow users to receive any profit by uploading live gameplay or live streaming.
However, Nintendo decided to allow the uploading of live gameplay on YouTube
and to share profit obtained by ads between the user, Google and Nintendo. 4

If asked about their passivity, video game companies might reply that they
would reserve the right to enforce their copyright. However, it is quite unlikely that
they would exercise their copyrights to stop these activities. They have never
revealed why they have not protested the widespread uploading of live video
gameplay or live streaming, but it is not difficult to understand the reason.
Obviously, they know that such live streaming is a very useful method of
advertising. They introduce additional appeal to video games: watching other
players play. While the main objective of video games is of course to play video
games, live video gameplay or live streaming increases the number of fans by
allowing people to watch other players playing the video games. This would also
offer people further incentive to play games: it is much more fun to play with a
large audience that cheers. Live video gameplay or live broadcasting will likely
facilitate gameplay and increase the number of gainers.

Indeed, it is very hard to image any actual harm or damage occurring to the
copyright holder of games from live streaming so long as the player does not
receive any economic profit. Since the main appeal of gaming lies in playing a
game, watching others players play online would be unlikely to decrease the
number of players. Live streaming is quite unlikely to inflict any economic damage
on the copyright holder. If the game is not stimulating or entertaining enough, then

61 Netolab, Aile wa naze play dougani gekido shitanoka? Tetteikousen ni nfimu game
maker no ikari
[Why Aile Was so Upset by the Live Video Game Play?:Anger of the Video Game-Maker Insisting
on Total War] (June 10, 2011), http://nlab.itmedia.co.jp/nl/articles/1106/10/news014.html.
62 Id
63 Final Fantasy XIV chosakubutsu riyou kyodaku jouken [Final Fantasy XIV Terms and Conditions
for Using Copyrighted Materials], http://support.jp.square-
enix.com/rule.php?id=538 1 &1a=0&tag-authc. Square Enix generally prohibits commercial use or
use for profit but grants an exemption for use through YouTube, Ustream and other video sharing
sites.
6 Cnet, Nintendo, game no koukokushunyuuwo user ni kangen: YouTube de affiliate sei dounyu e
[Nintendo Will IntroduceIncentive for User to Upload Game Video by Paying Some Profits from
Ads] (May 28, 2014), http://japan.cnet.com/news/service/35048572/. Nintendo also allowed the
uploading of live game videos on Nico Nico Douga and even mods with respect to some of its
games. Cnet, Nintendo, nicodo no jikyou play wo kounin: Game bunka no shiyawo hirogeru tame
[Nintendo Officially Authorized Live Video Game Play on Nico Nico Douga: For the Purpose of
Expanding the Horizon of Gaming Culture, Explains President Iwata] (Nov. 18, 2014),
http://japan.cnet.com/news/business/35056701/.
2016] Does Live Game Streaming have to be Copyright? 229

potential players watching other players play online might be disinclined to play,
causing economic damages. However, that situation obtains because the game is not
stimulating or entertaining enough. The copyright holder should not be allowed to
claim any damage because of the poor quality of the game. Live streaming might
also reveal how to play a game, leading other players to be successful in winning
the battles or advancing to the next stage. This may be viewed as "cheating." But
there are also many guidebooks on games, explaining techniques and providing tips
for success. If these books do not infringe copyright, 5 then there is nothing new in
revealing the technique and strategies to be successful. Besides, the copyright is
meant to protect the expression and not the idea behind the game. Some might also
argue that the live streaming might reveal the stories of a game, thus reducing the
appeal of playing. But again, the copyright is meant to protect the expression and
not the story.

Therefore, aside from the copyright holder of musical work, which might be
added to the recorded upload or stream of the live play, probably no copyright
holder of a game or music used in a game would be hurt. At the least, the potential
benefit for allowing live game streaming would outweigh the potential cost. This
benefit is one reason why almost no one complains against live game streaming.

Acquiescence by the video game copyright holders to the rampant live game
66
streaming is a case of "tolerated use," as Professor Tim Wu pointed out. The
conduct is technically and theoretically copyright infringement, and illegal, but it is
tolerated by the copyright holder and accepted in society as permissible. 67 This is
the result of the very structure of the copyright protection regime. Copyright statutes
tend to grant the broadest and most comprehensive exclusive rights to copyright
8
holders as copyright and allow only limited exceptional exemptions for users. 6 As a
result, inevitably a case will arise where there is technically or theoretically a
copyright infringement but the infringement is tolerated by the copyright holder. I
suggest labeling such cases "tolerated infringement" because they are copyright
"infringements" but are nevertheless tolerated by the copyright holders.

Moreover, such infringements are "illegal" because there is no specific

provision available to justify such use, even though they are mostly tolerated. Since
in Japan each exemption needs to be spelled out explicitly in the Copyright Act and

65 If the guidebook contains a screenshot of the video screen, then it is a reproduction and could raise
a copyright infringement issue. Live game streaming might raise the same kind of copyright
infringement issue. However, any use of screenshot in the guidebook is unlikely to lead to a
reduction of the game sales and is unlikely to inflict any harm on the copyright holder. It is thus
questionable whether such use should be regarded as illegal copyright infringement.
6 Wu, supra note 4.
67 Id. at 617.
68 Tamura, supra note 48, at 31. Professor Tamura also points out that the recent expansion of
copyright protection is facilitated by strong lobbying activities of big multinational corporations
and it is generally only those who are pushing for stronger copyright protections that are
institutionally involved in the governmental policymaking process on copyright. Id. at 32-33.
 230 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL [Vol. 24:215

each exemption is likely to be invoked by specific users whose arguments are

unlikely to attract wide support, it is natural that the call for the introduction of
specific exemptions is one not shared by a wide range of people. On the other hand,
copyright organizations and their supporters usually call for more comprehensive
and broader copyright protection. There is definitely an imbalance of power
between these two groups: the very structure of the Japanese Copyright Act makes
it even more difficult to address the existence of massive tolerated infringement.

Live game streaming, either by recording live gameplay and uploading it or by

live streaming gameplay, is 'illegal" copyright "infringement," even though it is
mostly tolerated by the copyright holder.

B. Comparison with the United States

The legal situation of live game streaming is roughly the same in the United
States as in Japan: somewhat unclear.

There is no question that video games are protected by the Copyright Act.70
Their reproduction,n as well as public transmission,72 without authorization is
copyright infringement. In the case of uploading gameplay, when the game player
records that player's play onto the computer and uploads it to the web, there is no
question that the game player is reproducing the game. Uploading on the web is also
a public transmission. Moreover, when a game player is live streaming that person's
gameplay, that person is engaged in public transmission. In both cases, therefore,
the game player is infringing copyright. The copyright holders of the game can
unquestionably seek damage awards and injunctions against game players for
uploading and live streaming.

The fair use exemption 74 might be invoked in some cases as a defense.

However, whether the fair use defense could be invoked to justify the live game
streaming is totally unclear. In order to decide whether the live streaming is a fair
use, it is necessary to consider four factors: (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.

69 Id. at 30.
70 Copyright Act, 17 U.S.C. § 102 (2011).
7 Copyright Act, 17 U.S.C. § 106(1) (2002) (right to reproduce the copyrighted work in copies).
72 Copyright Act, 17 U.S.C. § 106(4) (2002) (right to transmit or otherwise
communicate a
performance of the copyrighted work to the public).
7 Copyright Remedies: Hearing Before the Subcomm. on Courts, Intellectual Prop., & the Internet
ofthe H. Comm. on the Judiciary, 113th Cong. (2014) (statement of Rep. Jerrold Nadler).
74 Copyright Act, 17 U.S.C. § 107 (2011).
2016]1 Does Live Game Streaming have to be Copyright? 231

The first factor, the purpose and character of the use of live streaming, is for
personal enjoyment and is not likely to be highly regarded as an educational use.
Since the player is merely playing the game, it is questionable whether it could be
characterized as transformative. If the game player is playing the game while
commenting or reviewing it, then the use may be classified as transformative. But in
most cases, such comments or reviews are likely to be secondary and may not be
regarded as sufficiently transformative.

The second factor, the nature of infringed copyrighted materials, is the

commercial game. The game is produced by spending an enormous investment and
the game world is totally fictional, created by the game developers. There appears to
be no indication of any public interest in justifying reproduction and public
transmission.

The third factor, the amount and substantiality of the infringement, is variable
depending on certain circumstances. If only one game player is playing the game,
that person will be simply following the one of the many paths available during the
game. But when that person streams through until the finishing of one stage, it
might be argued that a substantial part of the game was reproduced.

Moreover, even if a single player is reproducing and publicly transmitting only

a part of the game, if one adds up all the games available on the web, then it might
be argued that the infringement is quite substantial.

The final factor, the effect of infringement upon the market value of the
copyrighted materials, is difficult to determine. Although it would be hard to say
exactly how much the copyright holder lost as a result of an infringement and
although it is more likely that the live streaming actually boosts the game's
subscription or sale, the copyright holder could argue that the infringement might
deprive the holder of some sort of potential profit. Moreover, even if a single live
streaming might have only a minimal effect, the cumulative effect of allowing all
game players to live stream their plays might be serious.

Therefore, although some may indeed argue that the live game streaming should
be protected as fair use, the opposite argument is also possible and might carry the
day before a court. It is perfectly possible that the copyright holder of the games can
argue that the live game streaming cannot be justified by the fair use defense and
should be illegal.

With respect to platforms such as YouTube, which allow the uploading of live
play or live streaming, the Telecommunications Act of 1996 granted immunity to a
provider or user of an interactive computer service who is storing copyright-
infringing information provided by another information content provider, though

7 Telecommunications Act, 47 U.S.C. § 230(c) (1996). There is no definition of "interactive

 232 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL [Vol. 24:215

there is an explicit exclusion with respect to intellectual property cases.76 As such,

these platforms may be held liable for copyright infringement as well. Further, the
Digital Millennium Copyright Act (DMCA) granted partial immunity to an online
service provider for information residing on systems at the direction of users when
the provider does not have actual knowledge of the infringement, is not aware of
facts or circumstances from which infringing activity is apparent, or upon gaining
such knowledge or awareness, responds expeditiously to take the material down or
block access to it. n It also allowed copyright holders to demand take-downs and to
file damage suits if the website operators fail to take down the infringing content
promptly.78 Therefore, these platforms may be liable for allowing game players to
upload live gameplay, or to live stream it with awareness that these activities are
illegal, or for failing to block or remove it after receiving take-down notices.

Viewers might also be held liable for watching streamed video or live streaming
since streaming will create a reproduction in the RAM and progressive downloading
will make a temporary reproduction. Whether the fair use defense would confer
immunity on such reproduction is still unclear.

Therefore, it may be illegal for game players to record their live gameplays and
upload it on the web or live stream their gameplay online. The platforms could also
be held liable for allowing users to upload their gameplay or live streaming it.
Viewers might even be held liable for watching these streams online in the United
States. Theoretically, there is also a possibility of using criminal punishment to
protect copyright against individual players who upload live gameplay or live

computer service," but the platform, website manager, which allows the individual users to upload
copyright infringing information, would qualify as an "provider or user of an interactive computer
service." However, this provision removed liability for "any information provided by another
information content provider." Therefore, as in Japan, in the United States there is also a
theoretical possibility that a court might hold that the information was not provided by another
information content provider, since the streaming platforms solicited the uploading and streaming
of game play.
7 47 U.S.C. § 230(e)(2) (1998).
7 DMCA, 17 U.S.C. §512(c)(1) (1998).
78 Id.
7 A number of the lower courts found the RAM copy and temporary copy during the buffering a
reproduction in violation of the Copyright Act. MAI Sys. Corp. v. Peak Comput., Inc., 991 F.2d
511 (9th Cir. 1993); Twentieth Century Fox Film Corp. v. Cablevision Sys. Corp. (Cablevision I),
478 F. Supp. 2d 607 (S.D.N.Y. 2007) rev'd in part, vacated in partsub nom., Cartoon Network,
L.P. v. CSC Holdings, Inc. (Cablevision II), 536 F.3d 121 (2d Cir. 2008). Although the Second
Circuit held the opposite, see Cartoon Network L.P. v. CSC Holdings, Inc. (Cablevision II), 536
F.3d 121, 140 (2d Cir. 2008), cert. denied, Cable News Network, Inc. v. CSC Holdings, Inc.
(Cablevision III) 557 S. Ct. 946 (2009), the issue is still not settled. The DMCA grants immunity
for transitory communications and for system caching for online service providers. DMCA, 17
U.S.C. § 512(a) (1998). However, the liability of viewers is not clarified. The European Court of
Justice has held that viewing copyrighted work by streaming is not a copyright infringement. Case
C-360/13, Pub. Relations Consultants Ass'n v. Newspaper Licensing Agency Ltd. & Others, 2014
E.C.R., availableat http://www.bailii.org/eu/cases/EUECJ/2014/C36013.html.
2016] Does Live Game Streaming have to be Copyright? 233

stream it,8 0 and against platforms that allow them to upload live gameplay or live
stream it."

Questions of platform liability have often been raised with respect to Twitch, an
online video game streaming website.82 Twitch.tv is a spin-off of the now closed
Justin.tv, which was launched in 2007 by Justin Kan and Emmett Shear and
centered on video gaming content. Twitch quickly developed into a huge success,
attracting more than 45 million viewers monthly.83 It has two video game contents:
the first is live streaming, and the second is video on demand (VOD) of past
streaming.

Nevertheless, video gaming companies simply went along with the

development of streaming. They have not filed suit against streaming game players,
demanded platforms such as Twitch to be taken down, or filed suit against the
platforms or viewers. There have been no criminal punishments of individual
gainers who uploaded live gameplay or streamed it on the platforms, which allow

8 Copyright Act, 17 U.S.C. § 506(a) (2008).

81 See Telecommunications Act, 47 U.S.C. § 230(e)(1) (limiting liability does not affect federal
criminal statutes). Indeed, Kim Dotcom, the founder of notorious Megaupload.com, illegal music
storage site, was arrested in New Zealand with other leaders for conspiracy to commit copyright
infringement. Wendy Li, Megaupload Crackdown: Why Was Kim Dotcom Arrested?, Int'l Bus.
Times, Jan. 22, 2012, available at: http://www.ibtimes.com/megaupload-crackdown-why-was-
kim-dotcom-arrested-398922. A computer programmer who was involved was extradited to the
United States, pleaded guilty and was convicted and sent to jail for one year and a day. Grant
Gross, Megaupload ProgrammerPleads Guilty to Copyright Infringement, PCWorld (Feb. 13,
2015, 2:00 PM), http://www.pcworld.com/article/2884472/megaupload-programmer-pleads-guilty-
to-copyright-infringement.html. Megaupload.com has been seized. MegauploadFile-Sharing Site
6 6 2 3 69
Shut Down, BBC, Mar. 8, 2012, available at http://www.bbc.com/news/technology-1 4
.

82 Twitch, http://www.twitch.tv (last visited Dec. 10, 2015). YouTube has a "Let's Play" channel.
This channel carries many videos, which show game players playing a game. Unlike live game
play, which shows the game screen played by the player, many of these Let's Play videos used to
be videos, mostly focusing on players, which incidentally include the game screen together with
the audio. There have been discussions over whether these videos infringe on copyrights in the
United States as well as in the United Kingdom. See, e.g., Craig Drachtman, Do "Let's Play"
Videos Constitute Fair Use?, Intellectual Prop. Law Soc'y: Rutgers Univ. Sch. of Law - Newark
(Jan. 26, 2014), https://iplsrutgers.wordpress.com/2014/01/26/do-lets-play-videos-constitute-fair-
use/; Phillippa Warr, Player-GeneratedGaming Videos Run into Copyright Wall, Internet Policy
Review (June 11, 2014), http://policyreview.info/articles/news/player-generated-gaming-videos-
run-copyright-wall/298. In August 2015, YouTube also started YouTube Gaming, a special
website and app focusing exclusively on gaming. Chris Foxx, YouTube Gaming4 Launch Poses
6 00
Challenge to Twitch, BBC, Aug. 26, 2015, http://www.bbc.com/news/technology-3 015
.

8 Mike Williams, Twitch Viewers More Than Double to 45 Million in 2013, USgamer (Jan. 16,
2014), http://www.usgamer.net/articles/twitch-viewers-more-than-double-to-45-million-in-2013.
In August 2014, Amazon purchased Twitch, despite the rumors that YouTube, a part of Google,
was negotiating with Twitch to purchase it. Kim Gittleson, Amazon Buys Video-Game Streaming
93
Site Twitch, BBC (Aug. 25, 2014), http://www.bbc.com/news/technology-28 0781. It looks,
however, like Twitch policy remains the same. Emmett Shear, A Letter from the CEO-August 25,
2014, Twitch: The Official Blog (Aug. 25, 2014), http://blog.twitch.tv/2014/08/a-letter-from-the-
ceo-august-25-2014/ ("We're keeping most everything the same: our office, our employees, our
brand, and most importantly our independence.").
 234 TEXAS INTELLECTUAL PROPERTY LAw JouRNAL [Vol. 24:215

the gamers to upload live gameplay or stream it. It appears that the video game
industry quickly understood the importance of streaming as a potential path for
future development. Just as in Japan, copyright holders tolerate live-game
streaming-however, technically and theoretically, it could be a copyright
"infringement" and therefore possibly "illegal." 84 Even so, some video games, such
as League of Legends, even explicitly allow streaming.

In contrast, the music industry was concerned over the use of music as
background in live streaming. They came to demand more stringent copyright
protection measures against Twitch. In response, Twitch decided to automatically
mute copyrighted music in games using copyright detection software called
AudibleMagic. 85 This is quite an understandable decision, yet it is questionable
whether this was the most appropriate solution. The journalist, Paul Tassi, argues
that the music industry needs to learn a lesson from the gaming industry:

The video game companies themselves have already figured this out, and they did so very
quickly. Technically, all the game footage that Twitch broadcasts is also copyrighted, just like
music, only the difference is that the gaming industry as a whole has embraced the idea of
streaming and gameplay sharing as a very, very obvious means of free advertising.

The music industry is taking decades to catch up to decisions the video game industry made
almost instantaneously with the emergence of this new technology. Sharing your content is good.
Punishing those who enjoy it is not.86

84 Hector Postigo also raised interesting questions in an article, which states:

In Twitch Plays Pokemon, a user has modified the chat interface to work with his inputs of his
Pokemon game. Viewers on his Twitch channel can control the gameplay via chat. What has
emerged is a massively played, live webcast of, at times, 50 thousand or so viewers playing the
game through chat commands.
I think the questions in the Pokemon example that get to the copyright problem are: 1. Did that
streamer on twitch circumvent access or copy protection encryption algorithms to afford the chat
mediated play? 2. Does a modification to browser chat and input/output interfaces on the game or
game console or PC constitute circumvention? 3. Is the stream of an unauthorized public
performance an infringing broadcast? 4. Could a reasonable argument be made that 50 thousand
people playing the game is transformative, making public performance and derivative works
claims weak?
Hector Postigo, Twitch Plays Pokemon: Questioning Intellectual Property, Creativity and the
Public Performance of Play, Culture Digitally (Mar. 17, 2014),
http://culturedigitally.org/201 4 /0 3 /twitch-plays-pokemon-questioning-intellectual-property-
creativity-and-the-public-performance-of-play/; See generally Taylor Casti, 90,000 People Are
Playing Pokemon Together, And It's Beautiful, The Huffington Post (Feb. 18, 2014),
http://www.huffingtonpost.com/2014/02/18/twitch-plays-pokemon-livestream-
game n 4810998.html (explaining how viewers control game commands in Twitch Plays
Pokemon).
85 Eric Johnson, After Twitch's Music Copyright Crackdown, What About Games
Themselves?,
CNBC (Aug. 11, 2014, 11:24 AM), http://www.cnbc.com/id/101910664.
86 Paul Tassi, Twitch Muting Further Demonstrates Copyright Law Needs To Relax For Its Own
Good, Forbes (Aug. 8, 2014), http://www.forbes.com/sites/insertcoin/2014/08/08/twitch-muting-
further-demonstrates-copyright-law-needs-to-relax-for-its-own-good/.
2016] Does Live Game Streaming have to be Copyright? 235

This comment is perfectly understandable. But the response of the music industry is
also fully legal and quite understandable because they are the copyright holders.
Legally speaking, game players do not have a legal excuse87 and Twitch needs to do
something to avoid the risk of litigation for copyright infringement. 8

Twitch does not intend to introduce this automatic music muting mechanism
with respect to live streaming, and some legal arguments can be made for this
distinction.89 It is still unclear whether the courts will accept this distinction and
give immunity to Twitch for live streaming. 90

In any case, although live game streaming could technically and theoretically be
copyright infringement and could be illegal, copyright holders in the United States,
except for those in the music industry, tolerate it.

IV. Legalizing Tolerated Infringement

A. Is This an Appropriate Solution?

Is the current state of affairs an appropriate solution to the problem of live game
streaming? Does such streaming have to be tolerated infringement? Does it have to
be illegal? This type of gap between what is written in the text of the statute and
what is actually enforced occurs frequently. It is inevitable in law. So long as there
is no one who complains about tolerated infringement, perhaps there is no need to
alter the current situation.

In Japan, there are many cases of tolerated infringement in copyright law.

Professor Tamura points out, for instance, that many companies make copies of
newspaper clippings or download research materials for internal discussion and
meetings, make copies of pages of books they bought for business presentations or
meetings, create pdf files and send them to employees, and ask employees to
translate foreign language articles for workplace superiors.9 1 These practices could
be considered copyright infringement, and it is unlikely that the various exemptions

87 Twitch can use the safe harbor provision of the DMCA and wait for take-down notice with
a
specification of illegal content. DMCA, 17 U.S.C. § 512(c)(c) (2010); See generally Viacom Int'l,
Inc. v. YouTube, Inc. 940 F. Supp. 2d 110 (S.D.N.Y. 2013) (holding that a service provider was
protected by the safe harbor). But Twitch decided to adopt preventive measures to hedge risk.
88 Twitch started the Twitch Music Library, a collection of music works that can be used in live

streaming and VOD. Twitch Brings Music to Broadcasters, Twitch: The Official Blog (Jan. 15,
2015), http://blog.twitch.tv/2015/01/twitch-brings-music-to-broadcasters/.
89 Bryce Blum & Michael J. Schwartz, Streaming and Copyright Law: A Fast-DevelopingArea of the
Law (Aug. 2014), http://www.foster.com/documents/streamingandcopyrightlaw afast-
developingareaofthe.aspx (noting that VOD allows downloading while streaming does not allow
downloading).
9 Id
91 Tamura, supra note 48, at 27, 35.
236 TEXAS INTELLECTUAL PROPERTY LAw JOURNAL [Vol. 24:215

stipulated in the Copyright Act would be available to justify them. However,

nothing has been done to stop this kind of practice.92

Moreover, the semi-annual comic market, dubbed "Comike," is a very good

example. This comic market is for comic lovers and allows amateur comic writers
to show and sell their products. Most of the products are modifications and new
developments of preexisting famous comics or animation. These products are likely
an infringement of the right of reproduction and could be an infringement of the
right to integrity and the right of adaptation. Therefore, producing such works and
selling them are copyright infringements. However, it is very rare that the copyright
holder complains or files a civil suit or criminal complaint against these amateur
comic writers. 9 3 Indeed, this semi-annual comic market attracts more than 500,000
participants each time, and some of these comic works are also available through
the Internet. Some of the comic publishers and video game companies even have
their own booths inside the Comike comic market.

The trouble is that if there are so many cases of tolerated infringement, the
public will lose confidence in the legal system. How can we teach our children not
to infringe copyright, while at the same time telling them that, in reality, many of
the infringements are tolerated? It is unhealthy to condemn these activities as illegal
copyright infringement, while at the same time tolerating them as acceptable.

Of course, since a copyright holder may enforce that person's right against
infringement, that person can also simply refrain from exercising that person's right.
Tolerated infringement could be explained as merely a result of the reluctance or
failure of copyright holders to exercise their copyrights. The trouble is that these
copyright holders do not officially approve such activities or authorize them. They
simply refrain from exercising their enforcement right, while reserving their rights
against infringement.

As a result, whether a particular use will be tolerated or not depends wholly

upon the mercy and whim of the copyright holder. No one is sure whether a
particular infringement will be tolerated or not. Even if a type of infringement is
widely accepted and tolerated, there is no guarantee that a particular copyright
holder will tolerate a particular infringement.

In other words, there is always a risk that the copyright holder might file a civil
suit seeking a large amount of damages, or file a criminal complaint to trigger
criminal punishment. Fearing such risk, many large corporations in Japan might be
prevented from engaging in such tolerated infringement. 94 Moreover, damage

92 Id. at 77. Professor Tamura is concerned with the possibility that the Japanese economy might be
crippled if such conduct is actually prohibited as copyright infringement. Id. at 76-77.
93 Id. at 78; Salil Mehra, Copyright and Comics in Japan:Does Law Explain Why all the Cartoons
My Kid Watches Are JapaneseImports?, 55 Rutgers L. Rev. 155, 180-81 (2002).
94 Tamura, supra note 48, at 80.
2016] Does Live Game Streaming have to be Copyright? 237

awards might be sought against platforms that allow such tolerated infringement.
There is always a risk that the platforms might be sued for a large amount of
damages or prosecuted criminally. As a result, service providers might also be
prevented from offering an opportunity for Internet users to engage in such tolerated
infringement.9 5 This will seriously hurt the development of innovative new
platforms.

Furthermore, criminal punishment is currently only possible when the copyright

holder files a criminal complaint.9 6 In other words, a copyright will not be
criminally enforced against tolerated infringement unless the copyright holder files
a criminal complaint. However, there is growing pressure on the Japanese
government to remove this criminal complaint requirement.97 Based upon the Trans
Pacific Partnership Agreement, the Japanese government finally submitted a bill to
amend the Copyright Act to remove this criminal complaint requirement for
prosecution for copyright infringement.98 Even now, the police sometimes prompt
the copyright holder to file a criminal complaint to start a criminal investigation.
But if the requirement of a criminal complaint were removed, criminal punishment
would be possible regardless of the copyright holder's intent regarding criminal
enforcement." Since the available punishments for copyright infringement include

9 Id.
96 Chosakukenh6 [Copyright Act], art. 123, para. 1.
9 Trans Pacific PartnershipAgreement, article 18.77, https://ustr.gov/sites/defualt/files/TPP-Final-
Text-Intellectual-Property-pdf (mandating each party state to make sure that its judicial authorities
may act upon their own initiative to initiate legal action without the need for a formal complaint by
a right holder.Updated Secret Trans-PacificPartnershipAgreement (TPP) - IP Chapter (second
publication)
98 TPP Agreement bill, supra note 30, art. 8, adding new paragraph 2 to art. 123 of the Copyright
Act, removing the criminal complaint requirement for the following art. 119, para. 1, violations
with the purpose of obtaining property interest as an exchange for these conducts or with the
purpose of obtaining gain to be expected from distribution or presentation of copyrighted materials
which are available for sale:
transferring a reproduction of the copyrighted materials which are available for sale, reproduced
just as the same as original or publicly transmitting it (including making it public transmittable as
well ... ) just as the same as original (only when the distribution or presentation of the copyrighted
materials which are available for sale could unduly impair the benefit to be gained from the
distribution or presentation in light of the nature and usage of the copyrighted materials, the
number of transfer, the manner of transfer or public transmission and other factors), or reproducing
the copyrighted materials which are available for sale in order to transfer the reproduction
reproduced just as same as original or publicly transmitting it just as the same as the original (only
when the only when the distribution or presentation of the copyrighted materials which are
available for sale could unduly impair the benefit to be gained from the distribution or presentation
in light of the nature and usage of the copyrighted materials, the number of transfer, the manner of
transfer or public transmission and other factors).
99 Tamura, supra note 48, at 96-97. The amendment is intended to preserve the complaint
requirement for amateur comic magazines sold at Komike. Naikaku kanbo [Cabinet Secretariat],
Kan taiheiy6 partnership kyotei no teiketsu ni tomonau kankeih6ritsu no seibi ni kansuru horitsuan
no gaiy6 [Summary of the Act concerning Necessary Amendments to Relevant Statutes in Light of
the Trans Pacific Partnership Agreement Bill] (Mar. 2016),
http://www.cas.go.jp/jp/houan/160308/siryoul.pdf, at 3. It is unclear how these exceptions will be
238 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL [Vol. 24:215

imprisonment for not more than ten years, perhaps the harshest in the world, and
because criminal punishment can be imposed even for a minor violation, the
chilling effect of removing the criminal complaint requirement would be quite
strong.

There must be some measures to assure that such uses will not be regarded as
infringement, or that such infringement will be excused as lawful. In other words,
such uses should not be merely "tolerated infringement," but should be regarded as
non-infringement or at least as lawful use.

B. Introduction of the General Fair Use Defense

One of the solutions to live game streaming challenge might be found in the
introduction of the general fair use defense. Unlike in the United States, there is no
general fair use exemption in the Japanese Copyright Act. If the Japanese Copyright
Act had a general fair use provision, it might be used to give immunity to some uses
of copyrighted work and prevent tolerated infringement. As a result, one solution
might be to introduce a "fair use defense in the Japanese style."100

Although the commentators and the Agency for Cultural Affairs have opposed
the introduction of the fair use provision, the Intellectual Property Strategy
Headquarters of the Cabinet Office once proposed its introduction in 2009, in light
of the development of the Internet.10 1 The proposal expressed serious concern that
the traditional approach would be insufficient to grant the necessary protection to
some legitimate uses of copyrighted work in cyberspace; thus, it attempted to
address this issue by introducing a general fair use defense. 10 2

However, the Agency for Cultural Affairs was not willing to accept the fair use
clause. In preparing a 2012 amendment to the Copyright Act, the Agency for
Cultural Affairs considered this proposal but ended up adopting four additional
individual exemption provisions instead of a general fair use provision.1 0 3 This
result clearly showed the hostility of the Agency for Cultural Affairs toward the

interpreted with respect to live game streaming when the amendment takes effect. The video game
is surely a copyrighted material which is available for sale. The live game play or live streaming is
a game play played by a user but the play is one of the possible operations of the game and it could
be said that it is a reproduction and public transmission just as the same as original. It is unclear,
however, whether the reproduction or public transmission could unduly impair the benefit to be
gained from the reproduction or public transmission. As a result, depending upon the interpretation
of this unduly impairment requirement, the complaint may not be required for criminal punishment
for uploading live gameplay or live streaming of gameplay.
100 Tamura, supra note 48, at 106.
101 Chitekizaisan suishin keikaku 2009 [Promotion Plan for Intellectual Property 2009], Chitekizaisan
senryaku honbu [Intellectual Prop. Strategy Headquarters] (2009),
http://www.kantei.go.jp/jp/singi/titeki2/090624/2009keikaku.pdf.
102 id.
103 Tamura, supra note 48, at 29, 34.
2016] Does Live Game Streaming have to be Copyright? 239

introduction of a general fair use defense. In light of this unwillingness of the

Agency for Cultural Affairs to accept general fair use defense, it is highly unlikely
that the general fair use defense would be introduced in near future.

It is questionable, however, whether the introduction of a fair use defense would

be helpful for the large number of game players who want to upload live play or
live stream it in Japan. Although the general fair use defense can be invoked in the
United States, its scope is unclear and so it may not be helpful for game players.
Their streaming may simply be tolerated despite its illegality. It is likely that the
mere introduction of a general fair use defense would not lead to the legalization of
uploading and live streaming. At the least, there is a need to interpret the fair use
defense, or to reformulate it liberally, to justify much broader use of copyrighted
materials. '0

Moreover, the fair use defense is a defense. It could be invoked to justify

copyright infringement, but the fact still remains that the use is a copyright
infringement. The copyright holder can claim that the use was an illegal copyright
infringement and the user would need to invoke fair use as a defense. Furthermore,
one of problems of the fair use defense is unpredictability: users could not know for
sure whether that person's use could be justified until after the court balances
competing interests under the fair use defense. Therefore, some kind of solution
needs to be found to make live game streaming not a "copyright infringement" or at
least not an "illegal" copyright infringement.

C. Alternative Solutions

Professor Wu offers several alternative solutions. First "is the creation of 'opt-
in' copyright enforcement systems that require the owner to provide notice before
the usage of a work begins to infringe."os The copyright system he was envisioning
had ". . .'notice based' property rights-whereby an intrusion only becomes
[illegal] if some action is undertaken by the owner. Notice based rights can be of
two types. The first type comes in the form of advance notice rights, where, for
example, a 'no trespassing' sign is required to convert an intrusion into a
trespass." 06 A second type is "the ex post notice right, or the 'opt-in,' where use of
the property is 'safe,' or not illegal, until the owner takes some action-typically,
complaining or issuing notice."'0 7 Only after "that point, does continued use become
illegal."'0o

10 See Pamela Samuelson, Possible Futures of Fair Use, 90 Wash. L. Rev. 815, 840-53 (June 2013)
available at http://papers.ssrn.com/sol3/papers.cfin?abstractid=2584180 (responding to critics
who think that the fair use defense provides too much protection for inappropriate use).
105 Wu, supra note 4, at 620.
'" Id. at 621.
107 Id.

1os Id. at 620-21.

240 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL [Vol. 24:215

The third type would give immunity to the use, viewing it as a complement, and
not a substitute for the original work.'" Alternatively, he proposes to view
"complements as generally falling under the heading of fair use."' 10 The fourth type
is a copyright no-action policy. 111 Here, the "owners of copyrighted works, to the
degree that they accept and want to encourage limited usage of their works, can
declare so to the world. This would allow them to focus on only the most
economically significant infringements while increasing the certainty of those who
might want to use the works."' 1 2 They do so by "using "a 'no action policy," which
describes "those uses of the works that the owner will not enforce." 1 3

Of course, Professor Wu was not thinking about uploading live gameplay or

live streaming of gameplay when he offered these proposals. If we apply the first
opt-in enforcement system, the copyright holder needs to post notice of enforcement
in advance, such as "no live streaming, please." The second alternative type, of an
ex post notice enforcement system, will demand the copyright holder to send a
notice before enforcement. The third alternative will relieve complement use from
any liability. The fourth alternative will allow the copyright holder to post a no-
action policy to assure users that they may engage in uploading live gameplay and
live streaming.

Professor Wu's proposal found some support among other commentators,

including Professor Tamura, who calls for a radical reform of the Japanese
Copyright Act and argues for a change of default rules: adoption of opt-in rules. 1 14
Surely, the first and second alternatives Professor Wu pointed out would preclude
the enforcement of copyright infringement without prior advance notice. But the
problem with the opt-in approach is that these infringements will still be regarded as
illegal if advance notice was given. Both alternatives would allow the copyright
holder to post notice or send notice to enforce the copyright as they desire. It is
questionable whether these uses should be regarded as illegal infringement if the
copyright holders decide to protect their copyrights.

The fourth alternative also grants assurance to users that they can use the
copyrighted work. But again, this alternative also allows the copyright holder to
refuse the no-action policy. The copyright holders might want to refrain from
issuing a no-action policy and reserve their right of enforcement.

The third alternative can give immunity to some uses that are not expected to
reduce the commercial value of the work. This is probably the best available
alternative. However, there are ambiguities in the relationship between this defense

'" Id. at 631.

110 Id. at 632.
...Id. at 633.
112 id.
113 Id.
114 Tamura, supra note 48, at 134-35.
2016] Does Live Game Streaming have to be Copyright? 241

and a fair use defense. Professor Wu was not clear about a specific formulation of
this defense. But again, this is merely a defense, and the copyright holder can claim
copyright infringement while users would need to invoke the defense to justify their
uses.

Altogether, the alternatives that professor Wu suggested would leave tolerated

infringement as tolerated infringement. Some of them would give some assurance to
current infringers, and some would provide additional defenses. These alternatives
are surely better than the current situation yet overall, they would not prevent such
use from remaining illegal copyright infringement. We need to find a way to make
this kind of use non-infringement or else to legalize it.

D. Toward an Alternative Copyright Regime

In retrospect, as we already saw, uploading live video gameplay or live

streaming of video gameplay is unlikely to cause any damage to video game
companies so long as it is carried out without receiving any profit. Although video
games are characterized as cinematographic works, there are some critical
differences between movies and video games. The most significant element of a
movie is watching it, while the most significant element of a video game is playing
it. Watching other players play video games online would likely not lead to
declining sales of the video games. It is more likely that such live gameplay or live
streaming will increase the popularity of the video games, thus increasing the
number of players and promoting sales. Live gameplay and live streaming are the
best advertisements, and they are free. It is questionable whether such use should be
regarded as copyright infringement in the first place.

In order to deny copyright infringement, some radical changes may need to be

implemented.' 15 No one doubts that copyright deserves to be protected, and that
copyright protection is important for the promotion of science and culture. But how
copyright should be protected is a difficult question.

Perhaps reversing the order of copyright protection is the best way to protect
copyright, while protecting legitimate use as widely as possible. The Copyright Act
needs to start from the declaration that everyone is free to use works created by
others. Instead of creating comprehensive and broad copyright protections first and
then listing defenses, the Copyright Act should list specific bans against
misappropriating the innovative and creative expression of others and ensure that
copyright is consistent with the right to enjoy specific benefits listed in the statute. It
should be only when the uses fall into specifically listed prohibited conduct that

115 See Pamela Samuelson et al., The Copyright PrinciplesProject: Directionsfor Reform, 25 Berkley
Tech. L.J. 1175 (2010) [hereinafter Samuelson, Directions] (various reform proposals); Pamela
Samuelson, Is Copyright Reform Possible?, 126 Harv. L. Rev. 740 (2013) (reviewing Jason
Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (2011) and William Patry,
How to Fix Copyright (2012)) (various reform proposals).
242 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL [Vol. 24:215

those uses should be regarded as copyright infringement and illegal. Otherwise,

everyone should be free to use works created by others.

Under this approach, a particular use that was not specifically prohibited might
come to be regarded as inappropriate. Then, the statute must be revised to
specifically prohibit that particular inappropriate use. It may take some time before
the specific ban could be introduced. But this is a sacrifice we need to make in order
to prevent unnecessary prohibitions on legitimate use. This process might look
inconvenient and cumbersome, but that is exactly the essence of this alternative
approach. In order to revise the statute and introduce additional copyright
protections, the legislature needs to go through this inconvenient and cumbersome
procedure. This would guarantee the broadest possible uses, as it should.

Even under this approach, some of the uses ostensibly covered by specific
copyright prohibitions might need to be granted protection. The general fair use
provision might thus be useful and necessary. Additionally, the fair use defense
would need to be formulated liberally and flexibly enough to justify all of the non-
exploitive uses of the materials.

This alternative approach might not only be more appropriate, but also
constitutionally required. Since copyright protection necessarily implicates freedom
of expression,1 16 the restriction imposed by the Copyright Act must be viewed as a
restriction on freedom of expression. Thus, it is imperative that the restriction on
freedom of expression, even for the purpose of protecting copyright, be as limited as
possible. If the restriction is overbroad, then the restriction should be invalid. The
current situation, which produces so many instances of tolerated infringement, is
overly protective of copyright and is an overbroad restriction on freedom of
expression.' 17

116 Nihonkoku Kenp6 [Kenp6] [Constitution], art. 21; (Japan); U.S. Const. amend. I.
117 The Supreme Court of Japan has never been faced with a constitutional challenge against the
Copyright Act under the right to freedom of expression. However, the United States Supreme
Court, when faced with a constitutional challenge based on the First Amendment against the
Copyright Act, has shown reluctance to acknowledge that the Copyright Act restricts freedom of
expression. Instead, the Court has intimated that the Copyright Clause of the United States
Constitution (Article I, Section 8, Clause 8) and the First Amendment were adopted roughly at the
same time and, therefore, that both were supposed to coexist. It refused to apply First Amendment
scrutiny, pointing out that the Copyright Act has built-in safeguards for freedom of expression,
such as a distinction between "idea" and "expression" and the fair use defense. So long as this
distinction was not modified, there would be no need to apply First Amendment scrutiny. Eldred v.
Ashcroft, 537 U.S. 186 (2003); Golan v. Holder, 132 S.Ct. 873 (2012). This stance may be
questioned. However, even under the holdings of the United States Supreme Court, the fair use
defense needs to be sufficiently broad enough to accommodate freedom of expression with the
need for copyright protection. See Neil Weistock Netanel, First Amendment Constraints on
Copyright after Golan v. Holder, 60 UCLA L. Rev. 1082, 1086 (2013) (arguing that to survive
First Amendment scrutiny, the fair use defense needs to accommodate freedom of expression with
the need for protection of copyright).
2016] Does Live Game Streaming have to be Copyright? 243

I know that this alternative regime is unrealistic and will face tremendous
resistance from copyright holders and copyright management organizations. It will
be also very difficult to implement since copyright protection is now an
international obligation that is compelled and promoted by international treaties.
Nevertheless, it may be worthwhile to take this alternative regime seriously.

Even if the current regime were to be maintained, some kind of built-in

limitation must be introduced to make sure that tolerated infringement is not
regarded as illegal infringement in the first place. The first strategy, while keeping
the current definition of copyright, requires copyright holders to prove that the use
is a commercial exploitation of the work, or that they suffered serious economic
8
loss before the use can be regarded as copyright infringement.' It is imperative
that all infringement of copyright not be viewed as illegal. The infringement must
be viewed as illegal only when additional requirements are satisfied. By excluding
non-exploitive use from illegal infringement, as suggested by Professor Wu, many
tolerated infringements would not be regarded as illegal.

The second possible strategy is to require the copyright holder to prove that the
use was not a fair use. This leaves the possibility for users to rebut these allegations.
In other words, a fair use defense should be converted into an element of copyright
infringement rather than considered a defense. Then, the infringement would
presumably be illegal only when the copyright holder can prove that the use was not
19
a fair use, rather than forcing the user to prove that the use was a fair use.1
Moreover, fair use needs to be construed more liberally to exclude non-exploitive
use from copyright infringement.

Under either alternative regime, uploading or live broadcasting video gameplay

would be legal and copyright holders would not have any claims against game
players or streaming platforms. This may be the only way that live game streaming
will be legally permissible without worrying about copyright infringement. It is
undeniable that both reforms need much detailed examination and elaboration.
However, there is at least a need to discuss these possibilities.

11 Jessica Litman, Real Copyright Reform, 96 Iowa L. Rev. 1, 43 (2010) (recommending limiting
copyright to the right to control commercial exploitation); Samuelson, Directions, supra note 115
at 1209 (recommending that "commercial effect should be given weight in assessing whether an
exclusive right has been infringed.").
"9 The adoption of these reforms to existing copyright would not violate the Takings Clause. Note,
Copyright Reform and the Takings Clause, 128 Harv. L. Rev. 973, 993-94 (2015). Similarly, it
would not violate the Japanese Takings Clause. Nihonkoku Kenp6 [Kenp6] [Constitution], art. 29,
para. 3. (Japan).
244 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL [Vol. 24:215

V. Conclusion

Uploading live gameplay or live broadcasting or streaming of gameplay has

become very popular in Japan as well as in the United States. It is agreed in Japan
that such conduct is illegal, as it constitutes copyright infringement. Nevertheless, a
large number of gamers upload live gameplay on the Internet or live broadcast or
stream their gameplay. Moreover, platforms dedicated to such uploading or live
broadcasting are well developed and attract many viewers. Video game companies,
the copyright holders, generally do not complain, file civil suits seeking damages or
injunctions, or initiate criminal proceedings to seek punishment. Uploading,
streaming, or broadcasting live gameplay is currently "tolerated infringement."

There is something grossly wrong with this situation. So long as the copyright
holders do not complain, there may not be a problem. But the current situation
depends completely upon the mercy and whims of the copyright holder. Therefore,
some kind of assurance needs to be provided to game players who upload live video
game plays or live broadcast or stream their video gameplays. It is doubtful whether
the current copyright regime can provide such assurance. It might be a good time to
reconsider the entire copyright protection regime and start over again.