[Update] Pirate Software Doubles Down on Unlawful DMCA. Discord chats and emails included.

Original story here

To make a long story short:
-Pirate Software publicly responded on twitter to assert his belief that the DMCA takedown notice wasn’t unlawful.

-Mario Cerame, the developer’s lawyer, replied:
“The DMCA you issued was unlawful. You should review the demand letter we sent with an actual, US attorney. Not a person from Britain who is not admitted to practice law.” [sic]

-Mario is referring to Pirate Software’s head mod Khronos, who Pirate Software described as a “lawyer in copyright law.” However, Khronos is a British lawyer, and not an attorney. From my understanding: In the US, the words “attorney” and “lawyer” are used interchangeably. In the UK, “lawyer” is a general term for someone who has completed law school, but may not necessarily be licensed to practice law. Worth noting, the US and the UK have different free speech laws. Khronos may not be qualified to represent Pirate Software or make assertions about US law.

What’s new?
-Expanding the timeline and adding more details
-Excerpts from discord dialogue between Pirate Software’s head mod Khronos and the developer
-Excerpts from discord dialogue between Pirate Software’s head mod Khronos and Mario Cerame
-The formal demand Mario Cerame sent to Pirate Software
-The follow up letter Mario Cerame sent to Pirate Software

To make a short story long:
Brandon Ferrentino posted clips of in-game Pirate Software references to reddit on January 17 and January 20. Two of the three posts used clips of Pirate Software’s voice from his stream. Ferrentino then received a DMCA takedown notice on January 21.

That same day, Ferrentino submitted a support ticket to Pirate Software and his team. “I received a DMCA on steam and my indie game was taken down there is no content even related to pirate software on my game that is uploaded to steam.” [sic]

Khronos, Pirate Software’s head mod who he described on stream as a “lawyer in copyright law,” responded. Ferrentino asserts Pirate Software’s voice is not in the Steam marketplace version. Khronos says they believe they are well within their rights to file a DMCA takedown notice based on use of voice clips shown in reddit posts. Ferrentino asks why they DMCA’d the steam game if it was the reddit post they had issue with. Khronos does not respond to that and instead states “Under Steam Terms of Service, we are able to file this DMCA for the game as it currently stands. Published builds display this content within the game. You chose to publish that clip.”

Ferrentino asks “is that a published build?” Khronos posts a link to another reddit thread Ferrentino posted on January 17 titled “Pirate Software is now playable in my game.” (Note: This is an odd thread for Khronos to cite because this one does not have Pirate Software’s voice. It’s just an image of the wizard roach and the level icon.) Ferrentino once again states the version of the game with Pirate Software’s voice was not published on Steam’s marketplace. Khronos responds, “You published a clip of the game to this website and clearly stated that Pirate Software was playable. You have published news about your game about a build. It is a build, about which you have published information, footage or other details.”

There’s more back and forth between the two, with Ferrentino repeatedly interjecting that the Steam marketplace build does not have Pirate Software’s voice in it and Khronos holding firm that a version exists with Pirate Software’s voice and that’s enough to justify the DMCA takedown notice.

Ferrentino incorrectly assumed he was speaking with PirateSoftware’s US attorney, took Khronos’ statements as lawful representation, and said he would remove the voice lines and use voice acting.

Mario sent a support ticket and spoke with Khronos on January 22 where Khronos elaborated that they were a UK lawyer. Mario, being a free speech defense lawyer in the US, believes Khronos’ interpretation of DMCA and fair use was false, so Ferrentino’s agreement was not valid. Furthermore, Mario believes Pirate Software sent a false DMCA takedown notice for not doing his due diligence in accordance with Lenz v. Universal and the DMCA which could put Pirate Software in a “512(f) problem.” Believing Pirate Software did not have an actual US attorney representing him, Mario redirected his communication to Pirate Software directly.

January 22, Mario sent a formal demand to Pirate Software to withdraw his takedown notice within 24 hours. In the letter, Mario states his belief that the takedown notice was unlawful due to his failure to “engage in a good faith analysis of whether fair use applies before issuing a DMCA takedown notice.” He informs Pirate Software of his right to send another takedown notice if he would like, provided that it is lawfully issued.

Mario also elaborates that using someone’s likeness can indeed get you sued for misappropriation of likeness, depending on the state that you’re in. He cites two cases where a celebrity sued and won against corporations using their likeness in advertisements. But the important thing he notes is that “a claim of misappropriation of likeness is not the same as a claim of copyright infringement. It is illegal to use the DMCA for anything other than copyright infringement. Such abuse can inure §512(f) liability.” The applicable precedent comes through Lenz v. Universal where good faith fair use analysis is the duty of a person before they file a DMCA takedown notice.

Furthermore, Mario elaborates his involvement was because he assumed Khronos was a US attorney acting unethically and bullying a small developer, Pirate Software was spreading free speech misinformation to thousands of people, intentional or not, and because the developer was considering going ahead with using voice clips or a voice actor for his game. Pirate Software did not respond, but the DMCA takedown was withdrawn.

Due to Pirate Software’s silence, Mario sent a follow up letter on January 30. Pirate Software is free to ignore the letters and free to pursue a lawsuit if he wishes, but the purpose of the follow up was to note that Mario and Ferrentino reached out in good faith to have a discussion about the use of Pirate Software’s likeness in Idle Streaming Bonanza in a good faith attempt to avoid possible litigation or future claims. Mario believes that Ferrentino’s limited usage of Pirate Software’s voice clips or voice impressions would fall under fair use. He cites a case in which free speech’s constitutional limits were extended to state torts, another case in which fair use is applied to misappropriation of likeness cases, and another in which fair use for misappropriation of physical and vocal likeness is in a video game’s context.

January 30, Pirate Software responded to my twitter post with his public tweet. “The DMCA was absolutely not unlawful. We filed a DMCA in response to the developer claiming that he put my voice in his videogame in a playable build and he showed evidence of this on video via a Reddit thread.” “He was told by many others that doing this was not legally advisable and decided to move forward anyway in another thread he made about this here.” “When we filed the DMCA he then went on to state that this was all ‘Bait’ in an effort to boost his game. You can see this on his YouTube video here.” “We took down the DMCA notice as he reached out and stated that he would be voice acting the lines instead. You're spreading misinformation in a biased form to generate views. We've handled this through the legal route as is appropriate.”

What strikes me as odd is that Pirate Software has a background in game development and asserts (or Khronos asserts for him) reddit posts from an indie developer are proof of the existence of a live Steam build. Game development is an iterative process, and it’s common to have multiple different versions of a game. Anecdotally, I speak with a lot of indie developers who show off their personal builds on reddit or twitter, but it doesn’t always make it to the live client. Personally, I take issue with Khronos’ interpretation that a screenshot or video of a personal build counts as a “published build” that can be hit with a DMCA takedown. This interpretation would put Pirate Software’s own game Heartbound at considerable risk for false advertising since he streams and publishes VoDs of himself fiddling with his personal build of the game. But neither Khronos nor I are US attorneys so what do we know?

If one is to consider misappropriation of likeness for advertising then that’s its own thing, but not specifically copyright infringement, so the DMCA takedown is still unlawful. If one is to consider “false advertising” then that’s a consumer problem settled by different means– Although, it would be interesting to see where a court draws a line between shitposting and advertising.

There were also multiple steps Pirate Software could’ve taken before hitting the nuke button. That’s the issue. There’s no such thing as a preemptive DMCA takedown notice on a work that doesn’t exist on the Steam marketplace.

There are cease and desist letters which warn someone that they may potentially be doing something illegal and that you’ll sue them if they go through with it. There’s also the option of personally reaching out to the creator. If the reddit posts were an issue then ask the moderators to take them down or send them DMCA takedown notices if you were so convinced– I reached out to the moderators of LiveStreamFails and the head moderator informed me that, as far as they were aware, they had “no direct contact with Pirate Software or any of his moderators on anything to do with this subreddit.” I did not hear back from the moderators of the indiegames subreddit where the other posts were made.

If one is to consider the trolling and baiting angle, it’s still an unlawful DMCA takedown because he didn’t do his due diligence under Lenz v. Universal. The point of the due diligence is so you don’t send false DMCAs. I personally have no taste for the game’s aesthetic and theme, but I believe in creators making whatever they want—within reason. Parody and criticism falls within my zone of reason. That’s my reason for investigating the matter, not to “spread misinformation in a biased form to generate views.”