Dote Night: SpectateFaker And Riot’s Jibber Jabber


Screengrab via SpectateFaker stream

Evening all! This edition of Dote Night is about the current content rights argument going on in League of Legends. It revolves around SpectateFaker a Twitch channel set up to stream games featuring the professional player Faker. The channel has been subject to a DMCA takedown order from rival streaming service Azubu and the ensuing argument taps into how streamers can use intellectual property. Here’s a summary of what’s going on and why it’s important.

Riot has a Legal Jibber Jabber page – a set of guidelines online where it lays out what fans can and can’t do with its League of Legends intellectual property. A lot of companies have this kind of legal information available so they can let fans know what they can stream or upload and how they’re allowed to use the characters in fan projects.

There’s a lot of information on the page but the golden rule, as Riot puts it, is that “you can use League of Legends IP as the basis for a fan project that you’re giving away for free or that’s only generating ad revenue”. That covers activity like Twitch streaming and YouTube videos. For anything where you’re asking people to pay and it’s not via advertising you need to get Riot’s permission. The other important point is that Riot can deny the use of their IP at any time and for any reason.

Azubu is a video game streaming platform which specialises in eSports. Anyone can watch but, unlike with Twitch, only top players and teams are allowed broadcasting rights. Essentially it’s been setting itself up as a premium content platform. Back in September, 2014, Azubu announced an exclusivity deal with the Korean eSports Association where all players on KeSPA teams would stream on Azubu.

As Azubu’s director of content, Matthew Gunnin said at the time: “These organizations have never streamed before and have chosen to work exclusively with Azubu to showcase their players and teams in the highest quality possible.”

That exclusivity covers a team called SK Telecom T1 and its players including Lee ‘Faker’ Sang-hyeok – SKT T1’s mid-laner. Viewers queried what would happen with unofficial streams during an AMA with Azubu over on the League of Legends subreddit. One question didn’t get an answer but summed up something which would become an issue for Azubu:

“There are multiple channels on Twitch streaming Korean pro players. Will you be sending a cease and desist notification to Twitch. Also, note since these channels are making money off of these streams. Will you be filing for financial losses and damages? [sic]”

Another question on similar lines did receive a response. The user asked “There are streams right now that streams Korean pro players like faker on twitch, will you take action to shut down streams like this since they are gaining money from someone’s work and not having permission? [sic]”

Gunnin responded “We are working closely with Riot and KeSPA regarding these streams.”

Just over a week ago SpectateFaker was hit with a DMCA takedown notice. The person running the stream set up the stream to broadcast games Faker was queuing for and playing solo (i.e. without a pre-made group). Azubu’s assertion was that it owned the content SpectateFaker was streaming and that under the Digital Millennium Copyright Act it must be taken down. Twitch complied, removed the relevant content from the account and issued a 24 hour restriction from broadcasting.

The problem here is that the SpectateFaker account wasn’t using any content garnered from Faker’s own streams or which featured content Azubu would own the rights to (overlays, commentary provided by Faker, music and so on). As the channel owner explained on Reddit, he used a spectator service called OP.GG to access the live spectator view of the games and broadcasted that so as I understand it the content would fall under Riot’s ownership and be governed by those rules I mentioned at the start, unless Riot had somehow granted those rights to Azubu.

In the following period there has been a lot of talk. onGamers’ Travis Gafford discussed why the takedown is a concern; then Daily Dot had Bryce Blum, a lawyer who specialises in eSports, look at the issues and offer analysis of the situation; there was also a confused response from Riot.

According to the SpectateFaker channel owner, an email from the company on the subject noted:

“If you are going to stream another player’s games, it makes sense to reach out to that player first (in this case Faker) and get their permission. It’s simply the right thing to do. Raising the visibility of a person’s match without their knowledge is questionable because they may be assuming that they are just casually playing a game with friends when in reality they are being broadcast to a larger audience.”

To me that feels like a good-faith attempt to answer a thorny question but it doesn’t hold up to scrutiny. After all, if you’re expected to gain permission from others before streaming a match in which they feature I’d need to speak to every ally and enemy in my games to check they were okay with being streamed, as would the professional players, as would people spectating friends’ matches and so on. It flies in the face of the simple rules laid out by Riot, too.

Riot’s president, Marc Merrill added a response on Saturday 21 February on Reddit which reiterated the point about wanting to encourage fan-created content and added that Riot is working with its partners to ensure they understand that stance:

“As I think you guys all know, we love the stuff that the community creates and it’s important that players feel protected when they put time and effort into creating content for the League community, and as such our legal jibber jabber has always granted players the ability to create content and monetize it on platforms like twitch or YouTube.

“This new issue of rebroadcasting spectator mode streams of a specific player’s game is something that only recently became possible and we have to consider very carefully how we address it because this issue involves a bunch of parties. As it relates to addressing the specific issue where third parties use copyright claims against Riot owned content, we are committed to working with our partners to ensure that they understand our stance on player creative content and act accordingly.”

Reading through the thread the idea seems to be that Riot wants to stick with its general stance on content creation and is working to ensure their partners understand how that works. But for me it’s an awkwardly worded statement. Reading a couple of follow up questions or comments it sounded to me like he was saying that content like the SpectateFaker stream was okay. In light of later comments it sounds like perhaps it was intended as more favourable towards Faker.

For example, a while later he posted to say:

“The more I think about this, the more I’m convinced this is simple exploitation of a loophole that sets a precedent that enables people to stalk / damage players.

“It feels like automated paparazzi. If a player wants to opt-out from automated & TARGETED re-broadcasting, why should we not honor their request?”

But as far as I understand it the channel uses data Riot makes available so would an opt-out option not be something they could add to the game from their end for use in particular situations? It also sounds like it would be worth updating the terms and conditions for broadcasting to take account of those situations if those are Riot’s concerns.

He then weighed in with another comment on a Reddit thread by the SpectateFaker channel owner saying that the channel was singling out a player against their will and “reeks of harassment and bullying”. He went on to say:

“If you can’t see how this potentially harms Faker and/or anyone else in this situation, then that is more reinforcement that we need to take the appropriate action to protect players from this type of unique situation.

“As to the comments about our API, of course we want 3rd party devs to do cool things with spectator. But when people utilize one of its components to harm / harass an individual, then we need to potentially re-evaluate our rules.”

I would assume that reading of the situation is related to Faker himself being unhappy with the situation and stating as much to Riot.

As the comments seem contradictory – the first one relatively open and positive and the others are negative and shift in their focus towards issues like harassment and stalking. I’ve dropped Riot an email to ask whether there’s an official position on the matter yet and will update if I hear back.

SpectateFaker holding page inbetween streams

The SpectateFaker channel admin initially responded to the takedown situation by setting up a channel called SpectateKorea which streamed high Elo games from Korea instead of specifically looking at a single player. They have now resurrected SpectateFaker stating:

“Faker does not have any rights over the game assets. I am streaming game assets – the spectator client, not anything Faker or Azubu owns. It’s really that simple.

“I know some people will disagree with this and bring up ethics, but I think this whole issue is about a lot more than Faker. It’s about Riot not enforcing their own legal terms of service. It’s about a co-owner of Riot Games being completely out of touch with esports and the spectator mode. It’s about a company (Azubu) issuing a false DMCA claim for content they didn’t even own. These are issues that will affect the future of the game and the spectator mode. All of this needs to be debated for the future of League of Legends and esports.”

At present (unless there are rights deals which have hitherto remained private) it seems that the only people who have the right to issue a takedown notice would be Riot themselves. Whether it ends up treated as a harassment issue rather than a content rights issue, the resolution of the SpectateFaker situation (as well as any related change in Riot’s approach to who is allowed to use its content) has the power to affect business partnerships, player livelihood streams and the fan community.

32 Comments

  1. lupinewolf says:

    As a Dota player I had no idea this was happening, but it affects all E-Sports. It’ll be interesting to see how this story ends, since it will be the precedent to resolve all future similar issues.

  2. Rence says:

    A related issue is what if someone else streaming bumps into him? Unless I understand it wrong he is just playing random teams so it’s not unlikely he could bump into another player streaming, I wouldn’t put it past Azubu (given many other such types of companies are rather aggressive in such takedowns) to start putting Such random claims if it’s found they had a player bump into him.

    • Xocrates says:

      This is not even an uncommon event. Many of the top players stream, and due to the rather small player pool at the highest level of play they come across one another frequently.

      Granted, assuming they were both pros playing in Korea, Azubu would likely have the rights to both, but it’s not far fetched.

  3. Neurotic says:

    Bloody MOBAs, the new home of PvP poison. Blech, throw the whole lot in the bloody bin. :P

  4. MacTheGeek says:

    Soooo… why not add an opt-out function to the matchmaking system? If you want the visibility, you’ll only join matches where spectating is permitted. If you’d rather avoid the public eye, choose non-streaming matches.

    • April March says:

      Yeah, that’s the simplest solution, and it’s on Riot to add this. It’s their game. No one should be issuing DMCA takedowns except them.

    • MaXimillion says:

      A match has ten players, disabling spectating just because one of them opts out would hardly be ideal.

      A better solution might be allowing you to opt out of being identifiable through the replay system. Anyone opting out would have their name hidden, making it far more difficult to track them automatically. Of course, implementing that might not be easy depending on how their system works, so it may not be a viable short-term solution.

      • Keymonk says:

        The issue with that, currently, is that all ranked games are publicly visible through the Riot API – so no matter what, you could always find a player and then see their games from sites like OP.GG – which is what’s been happening now. Opting out of having your ranked games visible may be a solution, but I don’t think Riot wants to do that, nor do I think it’d be very useful – since there’s ladders, you’d need ranked stats to be visible etc, since ladders are publicly shown.

        That’s a bit of a jumble, but I hope I got the message across. :D

        • Thepixellated says:

          They can try to implement a system similar to Blizzard’s Starcraft, where you can change your name a few times (or like Dota, whenever you want). Many high-level korean players use this to hide their builds from other players they might come in contact with so they won’t know what to expect when competing in tournaments- – they appear as IllllIIIIIIlllIIIIIllll, a mix of lower-case L-s and upper case I-s – so-called “bar-coders”.
          (Korean GM ladder link to kr.battle.net)

          Downside is, though, “barcodes” everywhere.

          • Graerth says:

            One instant problem with that is that a lot of pros who might be affected by this also want to stream their own games themselves.
            This shows their new name on screen, thus almost instantly letting the services target them again.

    • Koinzellgaming says:

      It’s a possibility, but again, giving that option also brings up a lot more problems and contradictions in the system itself. Because the only person, if he turns on the option of not being spectated, who will be able to capture the content, will be the person who streams himself. Faker is actually also using content which other players on his teams produce as well (And somewhat the enemies as well.) so even IF they have the option on, for unknown reasons, they can still be streamed by their teamm8s which invalidates the option itself imho.
      It would get rid of the chance that his game would be spectated through the client, yes, but that’s only part of the problem if they indeed take the position of “If people don’t want to be streamed you shouldn’t stream them” then that would make things almost impossible to make work properly because it’s a 5v5 multiplayer game and if anyone doesn’t want you to stream, then you’re effed and you won’t be able to stream your games.

    • Continuity says:

      There is all sorts of problems with this, the way you suggest doing it would slip the community creating effectively two different ladders, anything that splits the community is bad and would reduce the effectiveness of the ELO system.
      On the other hand if you do it on an individual basis you’re going to get a proportion of players in many if not most matches who have steaming disabled, meaning that effective spectating of these games would be impaired.

      There is no simple clean solution that doesn’t have wider ramifications.

      • Continuity says:

        Although I suppose just allowing people to opt out of the API data would be a reasonable solution, as you could still spectate the game if you could find it but it would make automated stalking impossible.

  5. vlonk says:

    So Riot made a deal with Azubu and gains money from this. Azubu is angry because their financial investment is not paying off. Riots agenda funnily enough protects the Twitch-Streamer, even against the streamed person.

    I guess the best solution would be a client/server software update that allows players to be taken out of the spectator API. This allows Riot to fulfill their contractual obligations to Azubu by empowering those players and teams to honor exclusivity deals. Also gives some opt-out privacy to players which seems like a really good idea.
    Radically changing their legal jibber jabber would most likely create huge grey areas which will in turn hinder fan projects.
    Rebroadcasting the most talented Korean Pro who exudes excellence to a positive audience of fans (who do not want to dish out money to azubu) is not stalking, especially when you broadcast his every game through your ingame client anyway to thousands of people randomly… Letting Marc Merrill speak is most often a bad idea. Have they not learned from their live Broadcasts how tragically this ends?
    I guess hire the Techies, hold on the legal team and fire the guy who let Merrill make statements.

  6. Stevostin says:

    ““Faker does not have any rights over the game assets. I am streaming game assets – the spectator client, not anything Faker or Azubu owns. It’s really that simple.”

    Hmm he should talk to a lawyer. He won’t make a yard in a court with such logic. If you tape Magic Johnson wearing nike shoes, nike isn’t the only person you need an agreement from. Pretty much the opposite actually.

    • vlonk says:

      German law perspective (not high court ruling yet) says that everything produced by playing a game is copyrighted to the creator of the game because he intended all possible permutations of the game (including glitches).

      This means that a) german judges don’t know or understand computergames and b) in Germany the streamer would win in court regarding the intellectual property law because of the legal jibber-jabber blanket allowance from Riot. I repeat: Not copyright for Faker playing the game is created by german jurisdiction right now. I assume this will be overruled in the future though.

      Now when we come to the personality/privacy rights of the person Faker himself this might go against the Restreamer BUT it can be argued that faker is voiding his right to privacy by agreeing to the Terms of service from Riot that allow a rebroadcast of his gamesclient with the spectate feature. That argument is pretty strong and hinges on the point if this rebroadcast is violating the TOS in some other way or is a unintended loophole.

      • April March says:

        I don’t think it’d be as clear cut as you are making it out to be. If a game is property of its creator, then DOTA is Riot’s. If Riot’s terms of use give Azubu rights to stream Faker, it also gives SpectateFaker the same rights.

        • vlonk says:

          Intellectual property rights give the Restreamer the right to restream. The DMCA that Azubu sent against the Streamer is not correct because Riot gave the streaming rights to the community (and at the same time exclusive rights) to Azubu. So Riot made a mistake, they handed out the commodity to two sides, while promising one side exclusivity without binding the other side to this restriction.
          BUT there is more to this case because Faker has personality rights. This is where the Paparazzi argument comes in. Don’t forget: the Restreamer does not show the player himself, only ingame footage, no camera picture. So is playing a game an expression of your personality worth protecting? Is it a public showing, private or intimate? I would say it is public because the spectate function is on by default. Therefore the rights of the individual player are rather small. If I participate in a public soccer league match of course spectators can film me playing soccer. If I want my privacy I should not play in a public league game… So you see, all arguments forbidding the Restream hinge on the point if this intense scrutiny (player has no choice to be restreamed) is hurting the players rights to privacy.

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      Maltose says:

      Speaking as a not-lawyer who spent 5 minutes googling this:
      Actually, it depends. In the US, if you’re photographing something on public property, then the photographer generally has the copyright ownership and the subject has no rights to the photograph. If Magic Johnson was walking on a public street, you could take as many pictures of him as you want and God himself would no be able to legally stop you.

      • jrodman says:

        However, there are different tests applied when you use those images in commerce, especially if you are suggesting an association or endorsement with a commercial enterprise.

        I’m not sure exactly how “SpectateFaker” relates to that, but it’s certainly using his game identity in the promotional naming.

    • solidsquid says:

      Putting asside the harassment thing Riot suggested (since this was a copyright claim, not a harassment one), I don’t know if that’s actually the case.

      There’s a couple of important points to this. Firstly, only the owner of the copyright can make a claim under the DMCA. Since this stream only included assets released publically by Riot it’s unlikely that SpectateFaker infringes on it. If they’d been re-streaming the Azubu stream it’d be another matter, the overlays and such would definitely be owned by Azubu and could constitute a claim

      Secondly, and relating to the possibility that Faker’s playing itself is copyright, anything Faker produces using the game is a derivative work of Riot’s. As such, any statement regarding copyright would be preceeded by those made by Riot. Since Riot has a fairly permissive copyright policy regarding their games which SpectateFaker doesn’t seem to breach, it’s unlikely copyright could be argued in this case

      Lastly, this is all publically streamed data. If SpectateFaker were to simply put out an audio stream and provide the location of the game for people to spectate themselves, would that be a violation of Azubu’s copyright? What if the person he was playing against decided to stream it? Azubu would still own any copyright in these cases which apply in the case of SpectateFaker, but it seems unlikely that they would have a valid claim against either.

      Basically Riot’s copyright stance regarding their property pretty heavily undermines any copyright claims Azubu can make regarding game content itself, either because Azubu don’t own the game assets or because the playing of the game is a derivative work and so copyright of it is at the discretion of the original owner (Riot). So unless Riot updates their policy to reflect this or provides a way for people to join non-spectate streams I’d think SpectateFaker is right that this was an invalid use of the DMCA by Azubu

  7. Premium User Badge

    teije says:

    Interesting to see the new issues thrown up by the intersection of esports and technology, touching on IP, rights and privacy. We’re going to see many more of these in the coming months and years.

    • vlonk says:

      Since all companies default into voiding all your privacy rights in the beginning to maximize the power of their software and considering that worldwide live distribution of close ups of your face become the norm… problems will most likely arise as “single person against whole humanity” =/

    • J Arcane says:

      The Riot chap’s replies I suspect are a bit of post-hoc justification on his part, but the argument to me is very sound (and I’m not at all surprised to see an eSport community responding to them in exactly the matter they have).

      If Faker doesn’t want it, regardless of the legal considerations, that should be the first concern frankly. This *is* papparazzi behavior, and knowing the proclivities of the online gaming community, it is easy to see it escalating to far worse things than that when the subject isn’t just a particularly popular player.

      I’m dangerously close to a slipper slope argument there, I’ll admit, but in a gaming world with swatting, where spoiled white kids treat anyone who isn’t them as an open target, it really seems like an opt-out is the least Riot could do before it escalates. Hell, now that this has exploded into legal threat, I wouldn’t even be surprised if the Faker case in particular escalated in some fashion.

      • jrodman says:

        Eh, I don’t think paparrazi limit themselves to displaying people engaging in only the activity that they are specifically famous for. If reporters ONLY ever interviewed or photographed movie stars specifically in the context of making movies I think we wouldn’t have this special word for them.

        Obviously casual gaming is not quite the same thing as the competitive matches, but it’s not *too* dissimilar of taking photos of a pro sports player at practice. Which is *normal*.

        There’s certainly room for the game players being able to say “no thank you” to being tracked though. DOTA has this already.

  8. Moraven says:

    The problem with an opt-out option is there might be a way for someone to still figure out a way to find his current way through other means and still stream it. There is 9 other players in those game and they might be opted out.

    • Moraven says:

      *Might not be opted out

      (edit not showing up)

      • hotmaildidntwork says:

        Such an individual would be limited to streaming from another player’s perspective though, and proper obfuscation would make it unlikely that an opt out player could be found by anything but blind luck.

        It’s sort of just the modern version of the same problem humanity has had for ages, one person’s right to perceive the world around them versus another person’s right to be unnoticed. The friction tends to start generating sparks at about the same time that you get someone following another person around for their own benefit without the subject’s permission.

    • jrodman says:

      That would be a good deal more of an ethical bright line though. Player X sets their profile to private, and you make a stream to follow them anyway via various means to dodge their choice. That’s a different situation.

      Raising the bar to being able to follow someone who does not want to be is worthwhile, and would have some effect in reducing them being followed.

  9. Premium User Badge

    Maltose says:

    Riot seems to forget that paprazzi, while often undesirable, are usually legal.

    • Continuity says:

      Legal but ethically contentious.

      • vlonk says:

        Some paparazzi go far beyond what is legal. Cameras with zoom optics filming into private estates and such =/
        Riot is in the unique position to actually do something about it (technical opt-out). Question is: will the company restrict their own power and reach by giving choices to reduce social features to every player? Cue highlight reel of allergic reactions from Zuckerberg and Co. to those pesky “privacy features”…
        As the saying goes: “Rito, pls.”