Pure Opinion: Sony Needs to Rethink Its Takedown Policies

If the title wasn’t clear enough, this is an opinion piece. It does not necessarily reflect the views and opinions of PurePlayStation.com, its staff, or anyone related to the site. However, we all agree on the free expression of ideas, whether they be smart or otherwise. Our readers are sophisticated and intelligent enough to make up their own minds on which is which.

Recently, we posted an article about a leak for trophies for God of War. We did not originate the leak. It was on Reddit. We did not pull the information from a review copy of the game. We asked for one, but Sony did not respond. That’s fine. God of War is Sony’s baby. They are free to choose where it will go for review.

We didn’t think we were doing something edgy by the trophy article. Leaked info is common on the internet, especially as you creep closer to the release date. Secrets are difficult to keep, and the world is getting smaller all the time.

We certainly did not expect to receive a legal notice from Sony’s agents at Irdeto USA asking us to remove the article immediately under US Code 17 Section 512. (I will add a link to Cornell Law School’s Legal Information Institute with the full text of the law for you to review.) The accusation is copyright infringement, and you can read the editor’s description of the situation and his response here.

I am not a lawyer. I am not even close. If you are an actual attorney, please drop your thoughts and opinions in the comments. These are just my thoughts on why I think this is wrong, and I think Sony may want to talk to its representatives at Irdeto for the future.

First, to the best of my knowledge, Sony is the copyright holder for God of War. They own that intellectual property, and, unless there are fair use considerations or other legal factors, they can protect their interests. I personally support copyright protections. However, I don’t think we are harming the game or infringing on their copyright by posting an article about the leaked trophies, but they may not see it that way.

Have I said I am not a lawyer? Great. I really want you to know that I am not qualified to give a legal opinion. I did google some information, but that’s the extent of my professionalism. I will pretend to understand the law, and, although it ultimately doesn’t make a difference, I think there is something missing from the notice we received that makes it not fully enforceable.

When I was writing this on April 12th, the source was still active. Anyone can go pull this information without resorting to any nefarious means. Based on my non-lawyerly interpretation of the law, that is reason enough for us not to comply.

In US Code 17, Section 512, Subsection 2 E, we only need to remove the material if two conditions are met. First, the original source has been removed or a court has ordered it to be removed. The second condition is that the person with the takedown request would have to let us know that the original source has been taken down or that a court has ordered the same. To the best of my knowledge, that is not in the email.

I think part of that is because Irdeto is working for Sony, but, according to their website, they don’t initiate lawsuits. That is up to the copyright holder, and they notify the copyright holder when someone has or has not complied with the takedown notice.

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There are two other issues here that are more important to me than being Matlock, Jr. The first is that we are covering a leak. We didn’t make the leak. We didn’t authorize the leak. We cover it for news purposes. I don’t claim to be a journalist, but I do think this is pretty standard stuff for the industry.

The second is that US law is being invoked here, and unlike some parts of the world, we still have freedom of speech. Once again, it gets tricky. There have been cases in the past that don’t support freedom of speech over a copyright holder’s protection of their intellectual property, even though, from what I can tell, it is generally accepted that news reporting falls under fair use.

It’s a murky grey area of the law, but there are two parts out of a potential four qualifiers that would apply here. The first is related to the amount of the copyrighted material we are using. We are not posting the entire game or putting the software on the internet for piracy. We are using a miniscule portion of the actual product. Multiple articles have quoted Cory Barlog as saying the game could take as long as 30 hours to complete, so this tiny list is nothing compared to that content.

The second is the impact to the market for the game or value. Obviously, I would disagree that an article about trophies would harm the marketability of a product like God of War. It is going to sell like few games can. Even I, someone who normally waits for sales, have already bought it, so that it will be delivered on release day.

The final consideration here, and in my opinion, more important, is whether this is really Sony’s intent. I am not sure it is, and I think they may want to review the process. I also want to be clear that I don’t think Irdeto is a bad company or has bad people. I think they are doing what they believe they should do or what Sony has explicitly contracted with them to do.

Copyright protection is a good thing, but is there a strong need to punish sites for reporting on this news? Is there a benefit to keeping this information out of the hands of gamers to prevent some financial harm? If so, why?

I would argue that the only harm is to Sony itself. Even though the notice doesn’t come directly from Sony, it looks petty, and scary letters and emails to take down information that anyone can access doesn’t make sense or match your gamer friendly image.

If Sony ever sees this, I would ask you to reconsider this approach and look at the damage you may cause in trying to protect something that is ultimately insignificant. If we had used some illegal means to get this information, if it was protected under an embargo that was part of a willing agreement for a review copy, or even if we had dropped early videos of the game that showed important information, it might be different.

We are not the only site that has had to deal with this sort of thing. Going forward, developers and publishers, please reach out to us and at least give us an opportunity to work with you. We may still disagree for the reasons I mentioned or even better ones. In this case, releasing the legal hounds just seems like using a nuclear bomb to swat a fly.

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