What are the problems with video game streaming

Video game streaming: legal, but unregulated

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It is not uncommon for gamers to broadcast their game sessions on the Internet. Although this is permitted, the legal situation as a whole is still not satisfactory, shows Oliver Daum. Because nobody really knows what right is important.

Streaming is widespread in the gaming scene and especially in eSports. With this form of streaming, gamers and eSports professionals broadcast the game from their perspective live on the Internet. Via portals such as Twitch.tv, viewers can then follow the course of the game without access restrictions. The special thing about it: The players comment - more or less talented - on their own game.

Lots of people are streaming in the digital world. From the expert who earns his living with entertaining content or as an esports professional, to the beginner who initially starts broadcasts for a handful of viewers. Because in addition to reputation, the supposedly quick money also attracts.

In the legal world of rules and laws, however, "eStreaming" has not yet been dealt with. Streamers raise many legal questions in areas where clear answers are already rare. Germany's gaming scene is currently streaming without a legally secure point of view.

Who is actually streaming there?

For example, it has not been conclusively clarified whether streamers are subject to the imprint obligation in accordance with Section 5 of the Telemedia Act (TMG) and Section 55 (1) of the Interstate Broadcasting Treaty (RStV).

At the same time, it can currently be assumed that there is an imprint obligation for social media profiles, which includes the channels of the streamers on Twitch and Co. The prerequisite is that the profile is either permanent or serves other than private or family purposes (LG Trier, ruling of 01.08.2017, Az. 11 O 258/16).

Streamers must regularly provide the following information: name, address for service, email address and another option for electronic contact.

For streamers, however, it is unattractive to fill the limited space on the profile description - if this would be sufficient at all - with legal information. The so-called two-click solution of the Federal Court of Justice provides a remedy here (BGH, ruling of July 20, 2006, Az. I ZR 228/03). After that, a link to the imprint of your own website is sufficient if it can be reached with a maximum of two clicks and the imprint expressly extends to the social media profile.

The thing about the radio

The next crux: Whether streaming is license-free depends on whether it is to be categorized as telemedia or broadcast with restricted licenses. According to Section 2 Paragraph 1 Sentence 1 RStV, broadcasting is an information and communication service that is offered to a large number of recipients for simultaneous reception along a broadcast schedule.

On-demand videos are therefore not broadcast due to the lack of simultaneous reception. For streaming, which takes place in real time, however, the availability of a broadcast schedule is crucial. To put it simply, this is represented by the selection, compilation and timing of individual programs.

When interpreting this term, there are regular disputes between authorities and (mostly larger) streamers. The Commission for Licensing and Supervision (ZAK), which is responsible for the fee-based broadcasting licenses, showed its teeth when it made an example of PietSmietTV in March 2017. The streaming provider had streamed 24/7, which the ZAK had already assessed as the timing of a broadcast schedule - and required the acquisition of an expensive broadcast license.

However, this view of the ZAK is very controversial. If a streamer announces his planned streams for the week on social media, there is still no broadcast schedule available to the extent that it is set up for large TV stations, for example. Rather, it is about outward-looking information to get as many viewers as possible. In addition, a streamer regularly reserves the right to cancel a planned stream due to short-term prevention or illness. This flexibility also speaks against accepting a broadcast schedule for streamers.

In practice, there are probably better reasons to classify streaming as a license-free telemedia. Streamers who do not acquire a broadcast license, but still want to be on the safe side, can submit an application to the responsible state media authority for compliance with broadcasting law in accordance with Section 20 (2) sentence 3 RStV.

Does streaming violate copyright law?

Streamers are also largely on their own when it comes to copyright. What is certain is that PC games are protected as so-called complex works under the Copyright Act (UrhG) (BGH, ruling of October 6, 2016, Az. I ZR 25/15). Accordingly, PC games with images, music, program codes, etc. combine different works, each of which is worthy of protection.

However, it is unclear whether the previous - confusing - case law on the Copyright Act can be applied to the local streaming in real time. In case of doubt, this can be assumed, even if there are justified doubts: When a streamer uploads his gaming transmissions, unauthorized duplication according to § 16 Paragraph 1 or § 69c Paragraph 1 No. 1 UrhG is in the storage media of the Twitch Server in front (see BGH above). Whether the data uploaded in this way, however, assumes the required extent of a protected work, is a question of fact, especially with streaming, and therefore cannot be generalized.

Regardless of this, there is also a breach of the catch-all offense of the right of communication to the public in accordance with § 69c No. 4 Alt. 1 UrhG, according to which only the rights holder can allow the public communication of a computer program.

Possible justifications according to §§ 44a, 53 or 69d Paragraph 2 UrhG or a tacit consent to the use of the rights by their owner would only be considered - if at all - after considerable expenditure of justification.

The paradox: This legal situation is undesirable even for publishers and game developers as rights holders for their games. Because especially when larger streamers play their games, streaming is effective and target group-oriented advertising that is rarely found - and which the developers would not want to do without.

Therefore, some developers provide the streamers with declarations of tolerance in order to guarantee a minimum of security. Since these declarations of tolerance can be unilaterally revoked at any time, the streamers do not have a solid legal basis. A better legal solution is currently not in sight.

After all: advertising is allowed

However, streamers are not just promoting the PC game in question. Some influential streamers are also influencers and advertise products from companies in the gaming scene, for example special gaming hardware. This advertising or business activities with a commercial purpose, as it is legally called, are permitted when streaming. The underlying rules are even usefully clear for a change, so that streamers can draw legal certainty from them.

Among other things, the separation and labeling requirement in accordance with Section 6 (1) No. 1 TMG must be observed. This means that advertising must be clearly separated from the rest of the information and the advertising must be identified as such. Anyone who does not comply with this is violating the prohibition of surreptitious advertising regulated in Section 5a (6) of the Act against Unfair Competition.
Furthermore, the natural or legal person on whose behalf the advertising is carried out must be identifiable by name in accordance with Section 6 (1) No. 2 TMG. However, it is not necessary to provide all of the information to be disclosed in the imprint.

In order to fulfill these obligations in practice, it should be sufficient for the streamer to hold a cardboard sign with the words "Advertisement" and the name of the client visibly in the camera during the advertisement.

Ironically, this form of advertising is specifically prohibited on Twitch, which is currently the largest transmission platform: According to No. 8d of the Twitch Terms and Conditions, only advertising for competitions and raffles is allowed. Anyone who advertises keyboards or mice there is acting inappropriately.

All these subject areas mentioned here represent only a selection of the most prominent legal problems of streaming. In addition, protection of minors, data protection and general liability regulations are of particular practical importance. It is to be hoped that streaming will increasingly become the subject of legal discourse as soon as possible, especially in legal politics, so that the law can do justice to streamers.

The author Dr. Oliver Daum is a lawyer in Kiel and runs the website www.esportsrecht.com.