Big Streamer Unlawfully DMCA’d Small Indie Dev and Threatened to Sue, Good Samaritan Lawyer Sets Him Right Pro Bono

"Welcome to the Find Out timeline"

Brandon Ferrentino is developing Idle Streaming Bonanza. ‘Play as your favorite content creators like Mokipane, Asmondsilver, and CQX.’ It’s a streamer drama parody game where you match button prompts, watch the bits drop, and feed the brain rot. Each level is a time capsule of LiveStreamFail’s greatest hits. There’s Dr. Disrespect’s grooming allegations, Pokimane and her expensive cookies make a showing, and XQC being an odd dude as a reference to XQC being an odd dude. Ferrentino’s newest level referenced another big streamer named Pirate Software.

Idle Streaming Bonanza’s Steam page.

For context: Pirate Software is a developer/hacker gamer person who runs a ferret rescue, encourages people to get into game development, and boasts an impressive resume from working at Blizzard during its glory days to hacking for The United States Department of Energy. As far as nerds go, he’s seen as the cream of the crop, but some of that cream has dissolved due to…well it depends on who you ask I suppose. Some don’t like how he appeals to his own authority or misrepresents arguments when he’s in the wrong. Others don’t like how he doubles, triples, or even quadruples down when he’s in the wrong. And some don’t like the double standards he applies to himself and others when he’s in the wrong. It’s not the being in the wrong that people don’t seem to like, it’s how the how he mishandles it and how these events clash with his wizened role model persona people have come to know him for—that’s why I stress at every opportunity that I am a scumbag. It manages expectations.

Pirate Software wins Best Software and Game Development Streamer award 2023

The event Ferrentino chose to immortalize in his game referenced the Hardcore World of Warcraft raid drama where Pirate Software abandoned his team, referred to as ‘roaching out’, and was later removed for his behavior following the incident. The level is called ‘Irate Hardware,’ a wizard hatted cockroach squirms in a gaming chair, and a voice line from Pirate Software’s stream can be heard. “As much as you’re angry right now, of course I ran.”

Ferrentino then posted a clip of his game to the Live Stream Fails subreddit titled ‘He Put Pirate Software Drama in his indie game.’ In turn, Pirate Software issued a DMCA takedown notice to Valve. ‘This developer is using clips of my voice without my permission. As displayed on the developers[sic] livestream my voice is being used in this game. The developer does not have the right to use my voice.’ He included a link to the Twitch clip. The game was taken down.

Plot twist: the Steam version of the game didn’t actually have Pirate Software’s voice in it. The Twitch clip was of the developer’s personal build, not the marketplace build. Confident in this fact, Ferrentino filed a counter notice to get his game reinstated. He also sent a support ticket to Pirate Software and his team directly to tell them his voice was not in the game and he asked for the DMCA takedown notice to be withdrawn.

The Irate Hardware level from Idle Streaming Bonanza.

Mid-livestream, Pirate Software spoke about receiving the counter notice and expressed his intent to sue the developer. “Hey Khronos, we have to file a legal complaint against that dude earlier.” He mentions seeing the video on reddit. “...so I filed a DMCA claim and he has now filed a counterclaim against me. We’re gonna take you to court. You’re going to lose. You can not use somebody’s likeness or voice in any way inside of your games without their permission. So I’m going to send this over to Khronos now because he is a lawyer in copyright law. That is his job. Khronos, we have 14 days to respond to this (counter notice.) Forwarded. Welcome to the Finding Out timeline, bud.”

Brandon Ferrentino responded in a YouTube video and reiterated he did nothing unlawful on Steam. “I showed one video of a possible build or a concept and put it on reddit. What’s on my machine was not (on steam.) There’s no data in my game of him on steam. There’s no active build with him on it. So he’s chasing fucking ghosts.” “The only reason I’m fighting this is because he’s removing my game from steam when he’s not on it.” “He’s taking my game off steam when he…none of them (Pirate Software and staff) played the demo.”

Unfortunately for Pirate Software, it’s a case of being confidently wrong.

In America, we have very strong free speech laws. It’s the first amendment for God’s sake. This is not as cut and dry as “you can’t use someone’s likeness or voice without permission.”—although that does get spread around a lot, but you’d think people on the internet who use Twitch and YouTube would see Twitch and YouTube as enough evidence that there’s more nuance to the matter. You have to consider fair use defenses and good faith activities by alleged copyright infringers. This was upheld in the Lenz vs Universal Music Corp. trial in which a woman was hit with a DMCA takedown notice for using 29 seconds of bad audio from a Prince song in a baby video.

The final ruling on that matter: “Copyright holders cannot shirk their duty to consider — in good faith and prior to sending a takedown notification — whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law.”

Pirate Software did not consider fair use. He didn’t even play the demo. If he had he would’ve known his voice was not in the Steam marketplace version of the game. Therefore, he sent an unlawful DMCA takedown notice, and that opens him up to be sued.

I asked Mr. Ferrentino if he asked Pirate Software or Khronos if they played the game. He said they responded, “That’s neither here nor there.” It’s very much here and there because beyond the existence of a perceived infringement you have to consider: What is the nature of the work? Critique, review, education, etc. Is it transformative enough? How much was used? (41 seconds.) How important is what was used? Does it have an impact on original market value? Is it misappropriating his likeness for an advertisement? It’s not as plain cut as: You used my voice. I didn’t say you could. Now I can sue you.

Mario (bottom left) helped YouTuber g0at (top left) when he was sued for exposing a scam.

Now, I’m not a free speech defense lawyer out of Connecticut that steps in from time to time to help content creators pro bono when their freedom of speech is being impeded, but Mario Cerame is. And he says Pirate Software’s false DMCA takedown notice of Idle Streaming Bonanza was unlawful. Mario happened upon Ferrentino’s video talking about the false claim and did not like that someone with a large and impressionable audience was spreading free speech misinformation. He also did not appreciate the lawsuit bully tactics. I quote, “It pissed me right the fuck off.” So Mario reached out to Brandon Ferrentino and took him on as a client free of charge. He made a formal demand to Pirate Software’s team to withdraw the DMCA takedown notice within 24 hours, and it seems to have worked because the game is back on the Steam marketplace.

There is some charity that can be given to Pirate Software. He is a big streamer and big streamers rely on their mod team to keep things running smoothly, so it’s possible he relied on second hand information and thought his voice was actually in the game. I reached out to Pirate Software and Khronos for comment on January 24th and 25th respectively. I will update if and when either responds.

The only thing left currently is seeing if things end here between Pirate Software and the developer. There are consequences for false DMCA takedown notices, but Brandon Ferrentino and Mario Cerame would have to actively pursue it in court. Ultimately, in these cases the court fees tend to outweigh the damages, so who knows where this ends up. The two have said they will release a formal statement in about two weeks.