Whether Posting Gameplay Videos Infringes Copyright Holder’s “Public Performance” Right​ Remains Unsettled

The magistrate judge granted plaintiffs leave to amend their complaint and/or file a new motion for default judgment because plaintiffs did not sufficiently allege that playing a video game and posting footage of that gameplay to YouTube constituted a “public performance” under 17 U.S.C. § 106(4). “⁠[Plaintiffs] cite[] only one case in [their] argument on this issue: Valve Corp. v. Sierra Entertainment Inc., 431 F. Supp. 2d 1091 (W.D. Wash. 2004). . . . Valve did address, in passing, the right to publicly perform video games. But its discourse on that subject only raises additional questions about [plaintiffs’] position. . . . Valve indicated that playing video games in public might constitute a public performance for purposes of Section 106. . . . [However,] [t]he concerns the [court in Allen v. Academic Games League of America, Inc., 89 F.3d 614 (9th Cir. 1996)] had about giving copyright owners too much control over when and where purchasers of their games can play them might logically apply to video games too. Are video games different? Given that this is a default-judgment motion where the court does not have the benefit of full briefing on both sides, the court declines to rule on whether posting a video on YouTube of gameplay from a video game does or does not infringe upon a copyright holder’s 17 U.S.C. § 106(4) rights. The court will just say this: if it does infringe, [plaintiffs have] not met [their] burden of demonstrating that to the court. [Plaintiffs’] lone citation to Valve does not get it there.”

Epic Games, Inc. et al v. Mendes et al, 3-17-cv-06223 (CAND 2018-06-12, Order) (Laurel Beeler)

2018-06-14T11:50:03+00:00 June 14th, 2018|Copyright, Docket Report|