Recent events forced the shutdown of a legal stream on Twitch and a public response from Riot’s co-founder, Marc Merrill. On a surface level it looks like all is settled with SpectateFaker and we can put the debate to rest. But scrape off the political language and we find yet another emotional appeal to cover up a legal case. So let’s tackle the issues of recent weeks that neither Riot nor Merrill will.
Table of Contents
- A quick recap of events
- Breakdown of issues discussed
- Analyzing Riot’s great big non-response
- Why an apology was vital & why it’s missing
- Azubu – an entity for money laundering
- Riot’s defense of Azubu contracts is absurd
- Legal background for Azubu’s false claim
- False DMCA claims are a HUGE issue
- Will no one go after KeSPA and Azubu?
SpectateFaker was a Twitch-hosted stream that would automatically broadcast games played by Sanghyuk ‘Faker’ Lee, using the Spectator Mode perspective. The service was enabled by Riot’s official streaming API and was non-profit. Last week, Azubu (streaming platform), who in September last year signed an exclusive contract with Faker, issued a Digital Millenium Copyright Act (DMCA) takedown on the stream. The claim was deemed illegal, since neither Azubu nor Faker own the rights to the streamed gameplay.
Under the alias StarLordLucian, the person running SpectateFaker rejected Azubu’s notice and said he would turn the stream off if Faker personally requested it. Marc Merrill, co-founder of Riot, reacted by shaming StarLordLucian on Twitter for being a harasser and ‘e-stalking’ Faker. StarLordLucian then retracted the offer and stated he’ll wait for a legal takedown from Riot Games.
SKT, the organization that Faker is signed under, issued a public statement that Faker didn’t want his name and gameplay broadcast on other platforms. SKT also confirmed the stream had a negative impact on Faker’s contract with Azubu.
Following the incident, Riot posted an official response to the situation yesterday. They’ve since taken down SpectateFaker’s stream.
Let’s establish what the pressing concerns here are.
- First, the elephant in the room – Azubu issued an illegal copyright claim and got away with it. This should have been the focus of debate from the start; had it not been for Azubu’s takedown notice, the case could had been solved through mere discussion between SKT and StarLordLucian.
- On a micro level, you have Merrill bullying a member of the community and never apologizing to that member personally.
- Moving on, there’s the fact that Faker is under an exclusive contract and his gameplay is being streamed on a competing platform.
- Then there’s the issue of a legal use of Riot’s API being labeled as ‘harmful’ and, subsequently, taken down. This expands into a question of what Riot consider ‘fair use’ of their property, whose interests they are servicing and what Merrill’s official update proposes as changes going forward.
- Why the false DMCA claim is relevant for us as either consumers of media or creators of that media.
I’ll address the official response first before I dive into Azubu’s claim.
Merrill’s update on the case is a vacuous ‘sorry you were offended’ PR statement and the only information one could take away from it is that Riot is shutting down SpectateFaker because they deemed it ‘harmful’. For a post that was supposed to address Azubu’s illegal claim, what use of the API Riot considers harmful and how streaming and spectator mode would be handled from now on, it does an appalling job explaining any of these issues. In fact, there is zero evidence here to suggest that anything will change.
The reason I’ve dubbed the post a ‘non-response’ is because it’s littered with buzzwords like ‘fair use’, ‘harmful’, ‘feedback’, ‘perceive’ and so on. It’s not an accident that many of the concepts Merrill entertains in his post are never elaborated upon – this leaves them free for Riot to interpret in the future. What is Riot’s definition of ‘fair use’ of one’s gameplay? Is it fair to stream your own gameplay that inevitably includes other people’s gameplay? And if other players perceive that as unfair, would Riot listen to their demands? What’s the legal justification for taking down a stream that targets an individual, but allowing streams that don’t target anyone, yet still show individuals playing? If the player argues he/she is being harassed, what would that entail? How does Riot perceive harassment? And how would a player even opt out of being spectated? These and many more relevant questions are yet to be answered.
We will intervene and shut down streams where we perceive that it’s causing harm to individual players. This will usually result from the individual player requesting the takedown (although it isn’t always dependent on it), so we’ll also make it easy for streamers to contact us with those kind of requests and look into them on a case by case basis.
The above quote contains that magical word Merrill uses on a whim to justify his take on the manner – ‘perceive’. It shouldn’t have to be stated that different people have different perceptions, yet both Riot and its co-founder are intent on giving the word some greater meaning beyond ‘personal bias’. For Merrill, making perception synonymous with truth would sugarcoat his blatant bullying of another person and make it look like a misguided campaign against moral injustice. “I was wrong, but I had good intentions” is an ironic excuse to make when you’re the co-founder of a company that wants to lead by example.
Time to open the can of worms that is Riot’s definition of ‘harmful’. Let’s say a popular streamer or Youtuber shows footage of him/her repeatedly killing another player. This was streamed/uploaded without asking for the player’s consent and resulted in commenters making fun of or harassing that player for his or her poor plays. Can the player in question request a takedown on the grounds of harassment? According to Riot’s vague policies – yes, but the outcome is entirely dependent on how they perceive the issue. This is a terrible way to handle requests; it actively encourages individual bias and ill-intentioned claims. It’s not a wild stretch to suggest that popular, established content creators will get better treatment in this than newcomers.
Because Riot are free to apply their own perception to each case, your legitimate complaint against a big name on Twitch can be met with “this is technically not harming you”. If you are stepping over the toes of a contracted player or an otherwise profitable figure, you may face a vastly different definition of ‘harassment’ than if you had a complaint against someone who’s just picking up streaming or making Youtube videos. On the other hand, an influential figure can put the weight of sponsors behind his or her claim, turning a policy to ‘protect players’ into a game of who has the means to force Riot’s hand on an issue.
Double standards inevitably lead to malicious acts and a likely outcome of Riot’s non-response is that people will start abusing takedown requests for personal interests. Let’s look at a hypothetical scenario with a figure that the community has split opinions on like, say, Nightblu3. Someone caught on stream or a highlight who doesn’t like Nighblu3 can stretch the definition of ‘harm’ to where it seems OK to file for takedown, putting pressure on the streamer to dispute a needless claim. This, combined with my previous paragraph, is a projection of the issues Riot will run into when they treat a very sensitive topic like what constitutes harm as if it were a philosophy class for delinquents.
Merrill’s loose language lets Riot act as moral police in private, where the community won’t be allowed to scrutinize their decision. Of course, the narrative suggests it’s all done in the ‘interests of players’ but the fact they’re left out of the debate directly contradicts that. It’s then much more realistic to expect that decisions will be swayed by the more influential party, be it a big streamer, a contractor, a sponsor and so on. A glaring example of that is the fact Azubu acted unlawfully, got what they wanted and weren’t even made to apologize to their action.
Such consequences occur when a company is free to interpret its policies however it sees fit. Take a morally neutral company, give it full control over the narrative and you will see bias on a regular basis – it’s inevitable. Given Riot’s expertise in PR language of zero substance, that bias might never become apparent unless exposed. The SpectateFaker fiasco is a template for dealing with future cases like this – turn a legal issue into an emotional appeal, sprinkle ideology on top and conclude that ‘lessons were learned’. Rinse and repeat.
Merrill’s response is part of a continuing trend with Riot that the decisions they make always set some moral standard that people should agree with. It’s a subtle way of discouraging criticism; Merrill’s framing of the issue makes it so if you oppose Riot’s decision-making, you are against community and player interests. These interests don’t have to mirror a particular player’s, but merely support what Riot believe is right. Regardless, you wouldn’t want to be on the ‘wrong side’, even if the concept is arbitrary.
I’ll give you an example with the official poaching rules in the LCS that state players from different teams can’t approach each other on the topic of leaving one team and joining the other until the contracts with their respective teams have expired. This rule puts players in ridiculous scenarios where they have to rely on managers tossing their offers to another team or look for opportunities after Worlds for a period that only lasts a few months. Players whose contracts are running out risk being unemployed for a full year; often they’re forced into using linguistic trickery in the hopes someone understands they want to jump ship.
These rules were put there and are enforced by Riot to retain the value of contracts and keep managers and sponsors happy. There are no player unions to discuss terms, nor are the actual players thrilled to be restricted in such ways. Yet Riot, instead of acknowledging the reality that they’re a business and are clearly acting to protect their financial interests, maintain the idea that this is beneficial for the players. Their stated reasoning is that the poaching rules “promote team continuity, prevent last-minute roster changes which damage team identity and cohesion, protect LCS tournament integrity and enhance fan enjoyment of LCS tournament play.” The fact is, many players are against these rules and want at least a 1 month grace period.
To put it in very simple terms – Riot do not and will not care about individual complaints if those complaints threaten a contract or a popular figure. Azubu felt their exclusive contact with Faker was threatened and that’s the whole reason this issue was escalated. These financial interests were shipped in polite packaging and stamped with Riot’s player-friendly manifesto.
The bottom line is that Riot will continue to do what they wish. Nothing was really learned from the SpectateFaker debate; it merely led to a regurgitation of old slogans that seem to apply less and less to Riot as their control over the eSports industry grows. They’ve shown they want to test how far players will let them overreach, as was the case with the Season 4 LCS contracts that forbid players from streaming or advertising competing games. And they’re getting more competent at framing their decisions in a way that lets them act selfishly with minimum backlash.
StarLordLucian is far from the inconsiderate jerk Merrill would have you believe he is. The ‘conversation’ between him and Azubu began with Azubu filing a false DMCA claim. He refused to take the stream down, as there were no legal reasons for him to do. He further added he would agree to do it at Faker’s personal request. At this point, the whole issue could’d been resolved if Merrill had reached out to Faker personally, sent StarLordLucian the response and then discussed a punishment for Azubu internally at Riot.
The next part is a spectacle of abusive language and an example of how low someone can sink to remain morally righteous in his own eyes. Instead of doing the above, Merrill accused StarLordLucian of ‘harassing’ and ‘e-stalking’ Faker, brought up several fallacies to guilt him further and ended on the now-familiar ‘we care about the players’ tune of complete hypocrisy. His uninformed rant was addressed in detail by both Richard and Thorin.
StarLordLucian retracted his offer to Faker and said he’d wait for a legal DMCA takedown from Riot. In doing so, he was accused of changing his position on the case, which was a reaction to the way he was being portrayed in the issue. Mind you, at no point did he refuse reasonable debate. He used free and legal means to host a stream through Riot’s API and agreed to cooperate with Faker on the issue; for his efforts, he received an avalanche of vitriol and bully tactics. And he’s the bad guy? If one side spends most of its time badmouthing the other, there can be no discussion.
If Merrill had apologized to StarLordLucian (which he didn’t and still hasn’t) it would had confirmed that the guy was mistreated and bullied by both Riot and Azubu into folding and taking down the SpectateFaker stream. It would had taken away the emotional angle Merrill still tries to pitch, along with Riot’s ‘community friendly’ facade that the co-founder has repeatedly referenced.
On a more personal level, it would had shown that people who throw unfounded claims around don’t get to walk away without retracting them and issuing a public or private apology to the target of their claims. Merrill’s position in Riot doesn’t mean he can bully someone and then apologize for it to the ‘community’. An apology to the masses is a PR maneuver to preserve a brand’s image; an apology to the individual shows common human respect. If Merrill lacks it, he should acknowledge that he has his company’s interests in mind and not some ‘holier-than-thou’ concern about online harassment.
This next topic will never be discussed transparently by Riot. How Azubu managed to claim copyrights on game assets and get away with it is an issue we ourselves have to bring relevance to, as responsible consumers of media. But before that, let’s examine the nature of the beast we’re dealing with.
What is Azubu? The answer is, surprisingly, almost impossible to find. Few can say what the company is supposed to be. Azubu has no real profit source and yet managed to receive obscene amounts of investment to the tune of $35 million with which to fund the streaming platform Azubu.tv. The company is a registered business entity; its trademark is owned by a company called SYSK Limited. However, there is no evidence of Azubu’s existence or the products it claims to sell.
Two years ago Korean media launched an investigation on the company and the facts they collected unanimously point to Azubu being a criminal enterprise used for money laundering. Azubu is, on paper, a German company with a main office situated in Berlin and a game studio in South Korea. But reporters on the spots found that neither the office nor the game studio exist. In fact, it was found out that Azubu’s main office was in South Korea.
Azubu’s claimed CEO is Lars Windhorst who co-owns the company with Dr. Seok Ki Kim. Both figures have extensive criminal records.
Windhorst moved to the shadow banking world of London after facing two bankruptcies in Germany. In December 2009 he stood on trial for 35 fraud charges of fraud, breach of trust and embezzlement. In 2010, he faced a civil suit for manipulating the share prices of a U.S. company called Remote DX.
Kim’s past is difficult to trace. He’s currently wanted by the Korean government for stock market manipulations he conducted in the 90s. He was also planning stock fraud in Luxembourg. Kim is the ex-husband of the vice-president of CJ Group, a conglomerate headquartered in Seoul. In September 2013 Azubu sold its League players to CJ. An investigation into CJ Group being involved in tax evasion launched about the same time as it did for Azubu. In September 2014 the company’s chairman was sentenced to 3 years in prison over claims of tax evasion worth over $150 million.
News outlets reported that Kim owns a paper company called Multi-Luck Investment Limited on the British Virgin Island. The company was set up for tax evasion; it is the only shareholder of SYSK (company who owns the Azubu trademark).
Translations of Korean articles have elaborated on Kim’s plans for Azubu; the goal is to have Azubu gather enough reputation through sponsoring teams and tournaments so it can be put on the stock market. To iterate, KeSPA signing its players on exclusive Azubu contracts is a way to give the company legitimacy for future investors and stockholders. This is now impossible in Korea, since the media there have repeatedly exposed the shenanigans happening behind closed doors. Legal actions against Kim have been reported by reputable newspapers in Korea, such as Jo!ns and dongA.
There are other, even more obscure figures at play here. One of Azubu’s former CEOs is Ilir Kusari. Following the trend of Azubu being run by criminals, Kusari was arrested in February 2014 for fraud and theft of huge sums.
Azubu’s past is so shady that the company’s listed field of operation miraculously transformed from publishing computer games (no games have ever been published by Azubu) to selling wholesale and tobacco. Even without this evidence it’s clear that Azubu is not an actual business company.
Of course, money laundering isn’t mentioned in Azubu’s audit reports. These reports provide a reasonable, not factual assurance that Azubu isn’t involved in fraud, which is why the company hasn’t faced federal court yet. All facts point to this: Azubu exists to attract investors through contracts and sponsor deals. The money it needs to sign these is obtained fraudulently and is subsequently laundered using the Azubu business entity.
KeSPA’s exclusive partnership with Azubu pays players a fixed salary, irrespective of the actual revenue they get from viewers. For Faker personally, whether he gets 4,000 or 40,000 viewers is irrelevant. It matters to his contractors and so their interests become Riot’s interests.
The reality is that neither Azubu nor KeSPA work to benefit players here. Riot are aware that Faker is being royally ripped off from being signed on with Azubu, yet continue to claim they’re defending his interests. If that weren’t enough, there is a plethora of Chinese streams that specifically target Faker and they’re not being shut down. In the context of this information, Merrill’s quest to prevent material harm to Faker is, really, a joke.
Let’s assume, for a moment, that Azubu pays fairly. It is not provable that SpectateFaker caused a financial impact on the company. One argument would be that shutting down StarLordLucian’s stream would case all those viewers to switch to Azubu. This runs into the common ‘piracy fallacy’ that music labels and movie houses have refused to grasp over the years: it’s not guaranteed that if people were denied free access to your content they’d buy it. Similarly, if people who’d chosen to watch Faker on Twitch were forced to watch him on Azubu, there’s no evidence to suggest they would do so.
Let’s make another assumption then, for the sake of exhausting arguments. Let’s say SpectateFaker was causing financial harm to Azubu. The stream existed as a legal competitor: it showed a different perspective of Faker on a different platform. The fact that all entertainment value – webcam, clicks, responses and so on – safe for Faker’s raw gameplay was stripped from StarLordLucian’s stream points to an issue with Azubu itself. If it couldn’t provide a service that would compete with an automated broadcast of Spectator Mode, then how could its monopoly be beneficial for consumers in any way?
My argument here is a simple defense of free markets. Azubu’s contract is meant to choke competition and SpectateFaker challenged that. It wasn’t a popular service but a few hundred players found it preferable to Azubu. SpectateFaker also provided links to Faker’s Azubu stream. In a proper market, the scenario would had led to Azubu improving their stream to attract these players. Instead, one side received a DMCA takedown.
Speaking of which, let’s finally tackle Azubu’s illegal claim which started the whole fiasco.
Of all the parties involved, the only one who can issue a legitimate takedown here is Riot. They own every asset of the game and, as a result, can choose to take down any stream of League. Players sign away ownership of their gameplay to Riot in accordance with the official Terms of Service. Riot have more control over their IP than regular video game publishers; their blanket policy claims ownership over all content, be it gameplay assets, audio, logos, streamed footage and so on. This is done to protect their IP. So why did Azubu, a company with no rights to any of League’s assets, file a claim against SpectateFaker, knowing their action is illegal? Because they’re a sponsor of KeSPA, a business partner of Riot’s, and so they know they can get away with it. It’s really that simple.
I’ll make a point here before I give my understanding on why the claim was issued – from the very beginning, Riot, Azubu and KeSPA were all aware that the DMCA claim was unlawful. They ignored the topic not because they didn’t understand it or because there was some debate over ownership, they did so because they all saw it was a cheap, zero-risk way to bully StarLordLucian into shutting the stream down without Riot ever involving themselves in the case.
I can only speculate here, since there hasn’t been an official explanation from Azubu (and there never will be one), but the DMCA claim was likely suggested by KeSPA and purposefully ignored by Riot. Had it not been for Travis exposing the issue initially, the community would had never caught on and Riot would had kept quiet.
As many have pointed out – and as we’ve given feedback to Azubu directly – their DMCA action wasn’t based on a valid legal claim of ownership.
This quote suggests that Azubu’s legal department was so incompetent that Riot had to explain to them they had no rights over Faker’s gameplay. Don’t be fooled; all the people running this show had knowledge of Riot’s Terms of Service and were fully aware of their action. They knew that StarLordLucian couldn’t bring Azubu to court as the legal expenses would be too great for him to cover. They also knew (or had an agreement) that Riot wouldn’t pursue legal action in the case that StarLordLucian rejected the claim or made it public.
Let’s establish the legal framework first. Faker has a streaming contract with Azubu. This means that Azubu have acquired the rights to have Faker perform his work exclusively on their platform. Faker’s stream is derivative content, i.e it uses the original (Riot’s game assets) to create something new (his own unique gameplay). That gameplay still belongs to Riot, as does any League player’s gameplay.
If we assume that Azubu owns the ‘Faker’ brand, they could techcnically file for trademark infringement. This would entail that StarLordLucian’s stream was causing confusion between the two services for consumers (viewers). However, SpectateFaker showed a different perspective of Faker’s matches and on a different platform, so there’s no room to apply a Lahman Act claim. Besides, Azubu sent a DMCA claim, which doesn’t concern itself with trademarks.
If Faker’s work was transformative, i.e it used the original as a reference to inform like a review, critique, opinion, etc. would, and StarLordLucian was streaming that, then and only then could he or Azubu claim legal ownership.
In fact, the only content Azubu can argue they own is the version of Faker’s matches that’s shown on their streams, with his webcamera footage, his mouse clicks, etc. When you consider that even that ownership is highly debatable and that SpectateFaker didn’t infringe on it, there really aren’t any grounds left for Azubu to claim copyrights.
Twitch, in this case, is protected by the safe harbor provision which shields service providers from the actions of users that lead to copyright infringement. The law, when applied to this case, states that if Twitch didn’t know about SpectateFaker, they weren’t responsible for any subsequent consequences. Upon finding out, Twitch is legally obligated to remove such streams but since Azubu’s claim was unfounded there was no pressure on Twitch to take action.
To sum up, Azubu had no legal grounds to file for either copyright abuse or trademark infringement. Twitch also had no responsibility to take down SpectateFaker so the only party that could legally act was Riot. The legality of the case should had been the main priority for Merrill to explain in his official response. As it stands, we’ve no evidence that Azubu will ever be held liable by Riot.
Video games have been a massive industry for years now, but the laws protecting people’s creative work with them didn’t get with the times. Content creators on Youtube struggle with DMCA claims: they can have their videos taken down because a portion of the audio matches licensed music, even though that audio runs as background to their original content. Twitch ran into this a year ago when they decided to mute VODs for fear of copyright claims on tracks used. Companies can file for copyright abuse almost unimpeded and they rarely face repercussions; they can issue takedowns, have them rejected and lose nothing in the process. A content creator, however, gets a strike and after three strikes it’s lights out.
In extreme cases, publishers can issue DMCA claims against criticism, trampling over First Amendment Rights with frightening ease. Even big names like TotalBiscuit are not safe from the abuse of copyright law.
The line in the sand with regards to DMCA claims is already moving with fast pace towards an ocean. If Riot continue to ignore what KeSPA and Azubu did wrong, then they are empowering the scum of tomorrow to do what they did. And it’s content creators and their fans that will reap the consequences of Riot’s inaction.
Why is it important that we don’t let Azubu and KeSPA get away with law abuse? From a legal standpoint, the DMCA establishes civil liability for knowingly making a false claim. But there’s a greater looming concern here. If Azubu’s ‘punishment’ for copyright law abuse was a slap on the wrist, what’s stopping other sponsors or companies from repeating their strategy? Azubu and KeSPA acted unlawfully, got what they wanted and Riot’s response to it was they ‘gave them feedback’. Not only that, but the co-founder of Riot ran to their defense, demonized a community member in the process and managed to excuse himself from ever apologizing. The decision to make an example out of StarLordLucian and let the real crooks flee the scene is, to put it purely and simply, disgusting, and it should weigh on both Merrill and Riot.
I’ve laid a groundwork of evidence and arguments here for a case that I believe still needs settling. But my words shouldn’t be the sole voice of your opinion. I encourage you to critique me where you find it necessary and get as many sources on the case as you can. I only hope is that this article will spark a conversation between players and Riot and we get right people to own up and take responsibility for their actions.
If you have any questions, feel free to ask me at @NoL_Chefo or e-mail me at firstname.lastname@example.org.