[UPDATE] ESL DOTA abuses DMCA features to strike down commentators

[ItsMitch]

ESL is starting to piss off a lot of DOTA fans, myself included but I'll try and remain neutral in this post. 

 

A few days ago ESL streaming rights had been purchased by Facebook instead of Twitch, and that kind of pissed of a LOT of people but that's not the thing that pissed the DOTA fans of the most.

 

Several community casters in the DOTA scene have begun streaming DOTA 2 from the client itself and began to commentate. But this somehow enraged ESL and they began to submit DMCA strikes against channels (might I add that's illegal but I'll get into that later) and from now, 4 channels have been taken down. ESL tried to go to Reddit to stop the fire from burning them even more but it made the situation even worse.

 

ESL Statement

Quote

 

Hey,

a lot of you have questions about alternative streams. Heres what I can say on that for today and the following days:

Anyone can stream Dota, as Valve stated after TI7, as long as they are community streamers free of commercial interest:

http://blog.dota2.com/2017/10/broadcasting-dota-2

Keeping with these guidelines, and the agreement we have to broadcast ESL One, we are not going to allow any streams that are competing with our main language streams and we cant let streams that monetize content from this tournament stay up.

Best regards,

Jonas "bsl" Vikan, ESL Tournament Director

 

ESL try and argue that they're "competing" with ESL's main language streams, however, some of the casters was Portuguese (ESL don't have Portuguese casters) and yet that ESL is in direct violation of the DOTA 2 broadcasting agreement, as seen at the bottom of VALVE'S statement

Quote

To that end, in addition to the official, fully-produced streams from the tournament organizer itself, we believe that anyone should be able to broadcast a match from DotaTV for their audience. However, we don’t think they should do so in a commercial manner or in a way that directly competes with the tournament organizer’s stream. This means no advertising/branding overlays, and no sponsorships. It also means not using any of the official broadcast’s content such as caster audio, camerawork, overlays, interstitial content, and so on. Finally, this is not permission for studios to broadcast each other’s events. In general, everyone should play nice together, and we think the boundaries should be pretty clear.

1

None of the casters was taking any kind of advertising nor displaying any kind of overlays that will benefit them mutually and they were using the dotaTV features which weren't the official broadcaster's content. ESL doesn't own DOTA so they don't have any kind of legal right to issue legal claims against content they don't own. My thoughts on this are very clear. ESL issued illegal DMCA strikes against community casters who was doing nothing wrong. ESL picked Facebook over twitch for an obscured amount of money and the community backlashed. Total Biscuit took to Twitter to vent his frustration

 

Sources:

https://www.reddit.com/r/DotA2/comments/7slmq1/bananaslamjamma_banned_on_twitch_esl_this_is/

 

https://www.reddit.com/r/DotA2/comments/7skt8e/did_mlpdota_just_got_shutdown/

https://www.reddit.com/r/DotA2/comments/7sksg8/brazilian_bts_got_banned_on_twitch_by_streaming/

https://www.reddit.com/r/DotA2/

UPDATE

ESL has issued a statement but no apology for the streamers they took down:

Quote

 

Hey Dota2-fans,

there has been a very strong community reaction to how we handled non-ESL streams from our Genting event. Earlier today we tweeted something that was meant to clarify how we see it going forward over the next days. A lot of you have wanted further clarification on this tweet:

"ESLOne Genting update & clarification: there will be no actions or takedowns from ESL for unmonetized/non-commercial ESL One Genting streams."

Here are some points that should address most questions:

1) Streamers sitting at home without sponsorships or advertising are completely fine to stream and comment on the games from Genting.

2) Streams that get revenue from community donations or subscriptions will not get taken down

3) When we said “unmonetized streams” we mean streams that do not play ads of their own sponsors as part of their content. This is to ensure that companies that are not sponsors of ESL One Genting are not directly associated with the tournament here

Best regards,

Jonas "bsl" Vikan, ESL Tournament Director

 

Valve has since issued a statement clarifying the use of DMCA strikes and the use of Dota TV.

 

Valve gave a statement out, pretty much telling ESL to go fuck itself when it comes to DMCA strikes

Quote

 

We’ve been seeing a bunch of discussion regarding DotaTV and want to expand on what we’ve said before.

 

The first issue we’ve been seeing discussed is regarding DMCA notices. This one is very simple: No one besides Valve is allowed to send DMCA notices for games streamed off of DotaTV that aren’t using the broadcasters’ unique content (camera movements, voice, etc).

 

The second issue is regarding who is permitted to cast off of DotaTV. We designed the DotaTV guidelines to be flexible in order to allow for up and coming casters, or community figures like BSJ or Bulldog that occasionally watch tournament games on their channel, to be able to stream off of DotaTV. It is not to allow commercial organizations like BTS to compete with the primary stream. It’ll be our judgment alone on who violates this guideline and not any other third party’s.

 

 

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http://blog.dota2.com/2018/01/dotatv-streaming/

[Master Disaster]

This isn't news, it's a rant because you're personal preference hasn't been met.

 

A load of gamers being pissed that Facebook got the rights to their game isn't tech news. Heck it's barely news at all, it's just the internet being the internet.

[ItsMitch]

1 minute ago, Master Disaster said:

A load of gamers being pissed that Facebook got the rights to their game isn't tech news

Wasn't even the topic of this story? Did you even read it? 

[Master Disaster]

4 minutes ago, SC2Mitch said:

Wasn't even the topic of this story? Did you even read it? 

Yes I read it, Facebook got the rights to stream ESL dota matches, gamers got pissed, ESL DMCA'd a twitch streamer and Reddit got more pissed.

 

What part of that qualifies as tech news? Also FTR ESL has the rights to take down restreams or non permissive streams as they see fit. Sky UK don't own football but they still take down footy restreams. That's why there is a broadcasting license.

 

[ItsMitch]

1 minute ago, Master Disaster said:

Yes I read it, Facebook got the rights to stream ESL dota matches, gamers got pissed, ESL DMCA'd a twitch streamer and Reddit got more pissed.

 

What part of that qualifies as tech news?

 

ESL doesn't have the legal right to DMCA streamers just because they feel like it. It's abuse of the system and against the law. What's so hard to see. It's not about the fact ESL got rights to facebook to stream. I could give two fucks about that. It's the fact they're DMCAing streamers when the shouldn't be. 

[Master Disaster]

Just now, SC2Mitch said:

ESL doesn't have the legal right to DMCA streamers just because they feel like it. It's abuse of the system and against the law. What's so hard to see. It's not about the fact ESL got rights to facebook to stream. I could give two fucks about that. It's the fact they're DMCAing streamers when the shouldn't be. 

ESL have a broadcasting license in place with Facebook, of course they can take down ESL content that non permissive.

 

Now one thing that's not entirely clear is if the DMCA'd stream was streaming ESL content or not.

[leadeater]

 

Pitchfork sales have been extremely good in the last few months.

[divito]

Just to ask for clarification, these DMCA notices were only given to people using DotaTV, with no ads, etc? None of them were on Twitch?

Ultimately, I'd have to see proof that they weren't using ESL's content, and that they weren't streaming to Twitch, which is a commercial platform. If they were legitimately only using the in-game streaming, then this is shady, but if they were broadcasting to Twitch, or using some aspect of ESL's stream, then doesn't look like there is a problem with it.
 

[ItsMitch]

Just now, divito said:

Just to ask for clarification, these DMCA notices were only given to people using DotaTV, with no ads, etc? None of them were on Twitch?

Yeah, from what I'm seeing they was all using DotaTV with no kind of product placement or ads. 

[PopReference]

Looks like ESL really messed up but its a guessing game when Valve makes a comment.

 

Interesting that the some of top DOA streams on twitch are ESL games, guess people wanna be there when they get banned.

[JaegerB]

10 minutes ago, leadeater said:

 

Pitchfork sales have been extremely good in the last few months.

So have tiki torches.

 

 

I hear lemon scent is a favourite.

[jagdtigger]

31 minutes ago, Master Disaster said:

ESL have a broadcasting license in place with Facebook, of course they can take down ESL content that non permissive.

 

Now one thing that's not entirely clear is if the DMCA'd stream was streaming ESL content or not.

Thats the problem Einstein, those streamers captured their own instance of the game, not commented over ESL's official video...

[bakidota]

The main problem is that Dota2 twitch audience (especially tournament Dota2 audience) is quite toxic. They are always racist (every tournament), the say hateful things and they LUL entire day. Now the problem is facebook doesn't have twitch emotes and they cannot meme and be toxic, and from this the problem is created and twitch audience is out raged.

[ItsMitch]

5 minutes ago, bakidota said:

They are always racist (every tournament), the say hateful things and they LUL entire day

That's not even remotely true, a lot of LULs sure but racist? Don't think so. 

[Taf the Ghost]

33 minutes ago, bakidota said:

The main problem is that Dota2 twitch audience (especially tournament Dota2 audience) is quite toxic. They are always racist (every tournament), the say hateful things and they LUL entire day. Now the problem is facebook doesn't have twitch emotes and they cannot meme and be toxic, and from this the problem is created and twitch audience is out raged.

You're either being daft or stupid with comments like that. Unless you're calling all of the Chinese DOTA supporters a massive group of racists, but if you're doing that, you might have other issues to deal with.

 

For anyone that doesn't know, the Dota2 client allows you to watch professional games that are being played as part of a tournament "ticket". Depending on the tournament and it's setup, you can also follow along with the audio commentary and camera actions of casted streams. There was a bit of a dust up with the Broadcast Rights issue going into the season, but this is the first time it's gone really sideways. Day 1 on Facebook was apparently really bad, which is the reason why community streams on Twitch popped up.

 

I can appreciate ESL's position, but they've clearly violated the usage of the DMCA in taking down the streams that were playing original Dota2 content. They are now, themselves, liable under the abusive use provisions of the DMCA, if anyone wanted to make a case against them. However, seeing as Valve's rules for non-monetization seems to have been abided by, no one actually lost any money. I think ESL will get by without any legal ramifications, but the community will definitely not be happy.

[The Benjamins]

1 hour ago, Master Disaster said:

ESL have a broadcasting license in place with Facebook, of course they can take down ESL content that non permissive.

 

Now one thing that's not entirely clear is if the DMCA'd stream was streaming ESL content or not.

 

its clearly stated that the DMCA'd streams were NOT streaming ESL content, but the in client spectating feature.

[wanderingfool2]

2 hours ago, The Benjamins said:

 

its clearly stated that the DMCA'd streams were NOT streaming ESL content, but the in client spectating feature.

 

So, I do not really know enough about ESL or DOTA for that matter to say my comment will be entirely valid...but it seems to me that ESL may still have a valid claim, even if it is an unpopular move.

 

Lets go to the football analogy, at a football game it is against copyright to re-air the game.  It is also against copyright to film the game on your phone, and redistribute it.  The reason is ESL may not own DOTA, but if they are paying to create the event and players then they very much do own the copyrighted "performance" of the players (that includes if the players stream it via different method).

 

Hope that makes sense

[The Benjamins]

4 minutes ago, wanderingfool2 said:

 

So, I do not really know enough about ESL or DOTA for that matter to say my comment will be entirely valid...but it seems to me that ESL may still have a valid claim, even if it is an unpopular move.

 

Lets go to the football analogy, at a football game it is against copyright to re-air the game.  It is also against copyright to film the game on your phone, and redistribute it.  The reason is ESL may not own DOTA, but if they are paying to create the event and players then they very much do own the copyrighted "performance" of the players (that includes if the players stream it via different method).

 

Hope that makes sense

The difference is that ESL does not own the game, and the game owns allow spectating and streaming the game and its features.

 

so the argument becomes does the ESL own the game play actions?

just the same as does PUBG own the rights to the replay actions of PUBG replays?

Can any game developer or tournament organised own the right to actions in a game to the point can they take down videos of said gameplay?

[Energycore]

3 hours ago, SC2Mitch said:

That's not even remotely true, a lot of LULs sure but racist? Don't think so. 

Nah dude, as a Dota guy, Twitch chat during tournaments is every -ist you can conceive of¹. I for one click popout player every time I'm watching a Dota Tournament because i'd rather not participate in the puddle of diarrhea that is chat.

 

¹ Ok, not every ist. I doubt they're all violinists

[Energycore]

@topic I hope ESL gets what's coming for them and is removed from the DPC Tournament Organizer list. Not for streaming on Facebook, who cares about that, but for actively and shadily squelching the competition - anyone who tried to stream and commentate the matches anywhere other than ESL's stream. These kinds of additional commentary have been common since forever, not just in Dota but in a lot of other sports. Remember when US people had to use korean streams to get Brood War matches and commentate them? How is that different to this?

[ItsMitch]

3 hours ago, Taf the Ghost said:

I can appreciate ESL's position, but they've clearly violated the usage of the DMCA in taking down the streams that were playing original Dota2 content. They are now, themselves, liable under the abusive use provisions of the DMCA, if anyone wanted to make a case against them. However, seeing as Valve's rules for non-monetization seems to have been abided by, no one actually lost any money. I think ESL will get by without any legal ramifications, but the community will definitely not be happy.

Streamer could argue that ESL violated the terms (and the law) of a DMCA strike against their channel and effectively made them lose out on streaming ad revenue, subs and other partnership agreements. I don't know, I'm not a lawyer. 

[samcool55]

1 hour ago, wanderingfool2 said:

 

So, I do not really know enough about ESL or DOTA for that matter to say my comment will be entirely valid...but it seems to me that ESL may still have a valid claim, even if it is an unpopular move.

 

Lets go to the football analogy, at a football game it is against copyright to re-air the game.  It is also against copyright to film the game on your phone, and redistribute it.  The reason is ESL may not own DOTA, but if they are paying to create the event and players then they very much do own the copyrighted "performance" of the players (that includes if the players stream it via different method).

 

Hope that makes sense

Well the analogy isn't completely correct.

The football game is organized by company A (Valve), they also own the essential assets of the game and stuff to support the assets to make sure it's all fine (football, goals, air pumps, goal nets, this is the equivalent of DOTA2 itself and the server infrastructure). There is also a camera owned by company A that films the game/playing field, only the game/playing field, nothing else.

 

Company A allows people to re-stream the footage of the camera they own. (the spectator camera). so technically it is allowed to re-air/re-stream the football game if you use the right camera.

 

Thing is, company B (ESL) organized an area where people can spectate the game in real-life and also made sure the teams are there that play against each other, they also provide gear for the players themselves (stadium, clothes, food, stuff like that) and they also record the whole thing, and they also use the camera from company A to record, stream and spectate on the game.

 

Thing is, company B are now DCMA'ing the people that used footage of the camera from company A and ONLY that camera, not the footage from any camera from company B, i think you can figure out by now that something doesn't add up.

 

Note: even tho company B does own the stadium, they don't own the actual playing field or the necessary assets to play the game that are from the game itself.

[Evanair]

Here's the thing. Until you see the actual contract between Valve and ESL, this could be 100% legal. If Valve gave exclusive broadcast rights to them, then they can Sue or deny rebroadcast rights to anyone, for any reason. 

 

It doesn't have to just be what they record, setup, stream, etc... again this is all based on a contract none of us will ever see.

[ItsMitch]

7 minutes ago, Evanair said:

Here's the thing. Until you see the actual contract between Valve and ESL, this could be 100% legal. If Valve gave exclusive broadcast rights to them, then they can Sue or deny rebroadcast rights to anyone, for any reason. 

 

I doubt Valve would give ESL full green light to use a legal action (DMCA) against streamers to strike down completely fair community commentary which  doesn't use any kind of ESL assets

[AGrider]

From google Im to understand that ESL is English as a Second Language?  Or is there another acronym whose definition has been left out of the article?