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So one of my younger friends has this Youtube channel (which luckily hasn't been deleted) where he has showcased this game that hasn't been commercially available for almost 12 years1. He is able to do this only because he has a device which still has this game after around a decade.[note 1]

Now, while there are only three videos of the game that he has uploaded, I wonder if there can still be a copyright infringement problem caused by these videos.

I feel like this would be a problem if the company that originally made the game brought up a lawsuit against my friend. This could probably happen because the game is not commercially available, so technically (although I don't really know) it could be illegal to own a copy of it.

So my question is: Is it illegal to make videos showcasing games that are no longer commercially available, or am I just overreacting?

Notes

[note 1]My friend originally got the game through legal methods in early 2012.

CrSb0001
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1 Answers1

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All game streaming without permission is problematic

All video games, whether current or obsolescent, are protected by copyright. By recording the playing of a video game, the player(s) are making a derivative work and that is prima facie copyright infringement.

In the United States, the player(s) might be successful in a fair use defence. This could very well be successful because watch-it-played videos are not direct competition for playing the game itself, and arguably promotes the game itself. It may also be that streaming an off-market game has a better fair use defence because there is no market for the game.

However, outside the US, this defence is not available.

Just because no game company has yet sued a streamer, doesn’t mean it wont happen tomorrow.

Dale M
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