Although we usually cover Nintendo-specific news and issues here at Nintendo Enthusiast, a story popped up yesterday that could endanger what all of us do in the game journalism industry. For those that are not up to date on the issue, Jim Sterling is getting sued. Jim Sterling, as many of our readers know, is a game critic and commentator that produces both written and video content related to video games. Sterling is a divisive figure: some gamers love to watch his angry rant videos, while others cannot stand him. No matter what your opinions are on Jim Sterling, however, this new lawsuit raised against him is not only ludicrous, but dangerous to our industry as a whole.
Here is a CliffsNotes version of what is going on. Digital Homicide, a small indie developer, is suing Jim Sterling for $10 million. Their lawsuit revolves around the idea of libel and copyright. They argue that Sterling went beyond a simple critique and analysis of their games and performed actions such as libel and unfair copyright use. Digital Homicide is asking for $10 million, “$2.26 million in direct product damage; $4.3 million in emotional, reputational, and financial distress; and $5 million in punitive damage requests,” according to Kotaku.
What’s the problem with the lawsuit? Well… there is no one problem with the lawsuit, there are quite many.
Let us first begin with the idea of fair use and copyright. By law, Sterling is not allowed to use images or video from Digital Homicide’s games unless it is used under fair use. Essentially, fair use is a loophole in the copyright law that allows you to use copyrighted content as long as it is used for certain purposes, such as educational or satirical ones.
At first glance, Sterling’s videos meet both of these qualifications. His videos are created to inform viewers about the quality of Digital Homicide’s games, and are also supposed to be be some sort of satire and funny for those that watch. However, there is a specific part of the fair use clause that does provide some pause.
Fair use only applies if the work does not decrease the value of the copyrighted work used. Essentially, Sterling not only has to prove that his work is educational and/or satirical. But, he also has to prove that his work did not do damage to the original copyright holder.
And that is where things get dicey.
Could someone reasonably argue that Jim Sterling’s videos lowered sales of Digital Homicide’s games, thus lowering the value of their copyrighted material? Probably. That reasoning really is not that much of a leap.
However, this is where the slippery slope comes in. Does my review of Animal Crossing: Amiibo Festival damage the value of the Animal Crossing brand? Who knows?! Will Nintendo be sending a $10 million lawsuit after me in the coming days? Gosh, I hope not.
Lawsuits such as these set a very dangerous precedent for the future. At what point do you draw the line? Will all scores under an 8/10 be banned for game reviews because they devalue the copyrighted work?
The other claim that this lawsuit makes is one of libel. Essentially, Digital Homicide is accusing Sterling of purposefully lying to damage the company’s reputation.
Once again… there is some grey area in this matter as well. If a journalist is reporting on a crime, for example, he or she can be sued for libel if they do not use the word “allegedly” to describe the person who did the crime.
“John Doe killed a man” – may have case.
“John Doe allegedly killed a man” – can’t sue.
There is a lot of certainty missing in the areas of fair use and libel, and both are hard to prove. Nevertheless, the issue of precedent and a slippery slope still stands.
If the lawsuit does not get thrown out and Sterling is actually prosecuted, where does that leave all of us journalists? Should we simply stop writing reviews and editorials entirely, out of fear that we will damage the work of a copyright holder?
Journalism is the only profession mentioned in the Constitution, right there in the first amendment.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
However, copyright also gets a line in the Constitution as well.
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
In this lawsuit, it seems like two sections of the Constitution will go head to head. However, for the sake of the freedom of speech, and our industry as a whole, I urge all of you to stand on the side of the first amendment.
There is also one other major concern over the lawsuit: the monetary amount of the case. Sterling is being sued for $10 million dollars. Do the developers seriously think that any sane judge will accept that Sterling did $10 million in total damages to Digital Homicide? I surely hope not.
In this legal battle, there are two clearly different sides: that of Jim Sterling and that of Digital Homicide. However, there is so much more at stake underneath than either of these two parties. Although it is ultimately up to you to choose which side you stand on, I truly fear for our industry if this lawsuit ends in Digital Homicide’s favor.