Free MP3s or Free Promotion? The Issue of Music Copyright in Community Rhythm Games

In this rapidly accelerating Internet era, the issue of online copyright has been one hell of a confusing ride, with claims, complaints, and accusations flying left and right, swarming platforms like YouTube and Twitch with legal drama over many content creators. We’ve seen debates over fair use, discussion over the efficacy of the Digital Millennium Copyright Act (DMCA), and content creators being demonetized for copyright claims, justified or not. Game development and digital music is of course no exception, and as someone who really enjoys rhythm games, I figured it would be a good idea to draw attention to some of the issues and events that make them a tricky realm for copyright.

Rhythm games are, of course, a genre built upon the foundation of music. In the beginning, they were generally developed solely for arcades or consoles. These games would be sold with a set song list, usually original compositions made specifically for the game (including most of KONAMI’s beatmania IIDX series), while others obtained licensing or permission for already-known tracks (the Guitar Hero and Just Dance series are some examples). The common theme is that the playable tracks that come with the game are set in stone from the beginning, with copyright issues settled by the publisher before the game’s release. The player need not worry.

A beatmania IIDX 27 HEROIC VERSE cabinet. Konami regularly releases new games with updated song lists.

However, as PC gaming started to become more popular, open source and community-driven rhythm games started to emerge. A notable early example is Lunatic Rave 2 (aka BMS), which was built to be a PC-based clone of beatmania IIDX. Uniquely, the game did not fall into much copyright drama, since the vast majority of its content is made specifically for BMS; nearly all notable songs are original compositions by producers who want to contribute to the BMS community. Copyright problems are extremely rare there. Another notable early open-source rhythm game was StepMania, which was a clone of Dance Dance Revolution that was playable on keyboard. While song packs for StepMania often had unlicensed songs, the game never grew to a scale in which it was ever targeted with any legal action regarding copyright.

Most of the examples I will be bringing up will be related to the open-source rhythm game osu!, a PC clone of Osu! Tatakae Ouendan for the Nintendo DS. Created in 2007 by Australian Dean Herbert (aka peppy), it has greatly grown in popularity since its creation, with millions of registered accounts and daily peaks of 50,000+ concurrent users.

Me playing osu! circa 2017. Yeah.

Of course, the game is nearly completely community driven; every new beatmap is created by a player, and for it to be considered “ranked” (gaining a leaderboard and rewarding Performance Points), each map goes through an approval process spearheaded by other members of the mapping community. There is a constant stream of new content with new songs being ranked every single day; however, the only requirement to map and submit a song is that the mapper has an MP3 file of the song. This has led to the majority of songs in osu! being used without permission, which has led to some drama and action regarding music copyright…

The Straight-Up Strike

On August 2014, a time when I was playing osu! very actively, Konami filed a DMCA claim against osu! for using various songs from their own series of arcade rhythm games. Each of the ranked beatmaps in question were subsequently removed from osu!’s download server; while they still have leaderboards, the only way to download those maps now are from osu! mirror sites (which are also in their own legal grey area, but that’s a whole other topic). This sparked some community outrage, as well as some possible fear, as some believed this was the beginning of a crisis for the game, as it was very possible that other companies or music agencies would follow suit, severely hampering the ability for the game to grow.

The banner of one of the beatmaps that was taken down. On the osu! website, searching for this map on the beatmap listing does not yield any results.

Thankfully, it didn’t seem as if that was the case. The cascade of DMCA claims that many predicted didn’t seem to come to fruition—as far as my knowledge, the only other notable claim made within that time period was from the independent artist a_hisa, which only brought down a couple dozen maps at most. The game has continued to grow (and use unlicensed songs); in fact, Konami’s claim was only to take down the maps that were submitted at the time, and didn’t prevent mappers from continuing to map and rank Konami-licensed songs from then onwards. They would have to continue to file claims or take legal action, and surprisingly enough, haven’t done so since then.

Was Konami justified in making this claim? It could be argued that the ability for players to gain access to songs exclusive to Konami’s games leeched away some of their markets, especially because having osu! beatmaps also gives players access to MP3 files of copyrighted material. That could be equated to music piracy, which obviously opens a legal discussion about whether the game is responsible for promoting or enabling it.

Content Creation: Replays and Streamers

Rhythm games, especially osu!, are best known for their flashiness. That’s pretty much the biggest reason anyone starts playing them—they are somehow exposed to a video or demonstration of a high-level player, and want to try their own hand(s) at showing off their skills. Out of all the media types on the internet, videos and livestreams are the single biggest ways to bring in new players to these rhythm game communities.

But many a time has a legendary replay been taken down because of copyright claims. This has happened to numerous players who have posted their replays, as well as to community channels such as Circle People who have previously had their channel taken down from YouTube, sparking a moderate heap of controversy and outrage among the community. Eventually they got their channel back, but as will be discussed later, there were community members claiming that the removal was justified because of prior warnings given to the channel and the obvious issue of music piracy promoted by the game.

Circle People’s screenshot with a timeline of their dealings with YouTube, posted on Twitter.

Livestreaming has also become problematic, with some rhythm game streamers gaining popularity to the point of treating it as a full-time job, making a living off donations and subscriptions. Some examples include BTMC, Acai, and Etienne (streaming and YouTube videos).  Especially in the wake of changing copyright policies on platforms such as Twitch and YouTube, it is becoming increasingly dicey for streamers to avoid any possible trouble for playing whatever song may prompt a strike and subsequently jeopardize the income that they depend on.

It is ridiculously surprising to see that BTMC now has nearly 260,000 followers on Twitch, far exceeding what most would consider enough for full-time streaming.

Monetization?

Here’s the thing though—it could very easily be argued that the removal of such content is justified because of monetization. It could be interpreted that osu! makes money off of unlicensed music indirectly by attracting players to buy subscription-based supporter tags that give them in-game perks. While replay channels and top players’ YouTube channels don’t directly monetize their videos, some of them have started selling merchandise, again straddling a shaky tightrope when it comes to profiting off of music. It could be argued that rhythm game streamers are even more egregious when it comes to this issue. Lastly, tournaments like the annual osu! World Cup that have prize pools would have to be extra careful in their song choices for mappools, and that would require extra negotiation and effort (take it from me, I’ve done a lot of tournament mappooling).

Your team could have won $2500 for winning OWC 2020… Not much for now, but as the game keeps growing, this number could get real big.

All these different issues intertwine to create a complex debate as to whether it is justified for copyright to get in the way of the growth of the community-driven rhythm game as a genre. As mentioned earlier, this boils down to music piracy and the question of using others’ intellectual property for profit. We all know what happened to Napster and Limewire; they were music piracy sites that ultimately got struck down by the long arm of the law. Are rhythm games allowing players to illegally download music just like those pirates of the early 2000s?

Of course, there are no easy answers. And continuing to argue about the morality and legal details of these problems would only divide and harm the communities at large. So instead, efforts should and have been made to create an alternate solution that solves the problem without disregarding community or the law.

Featured Artists: A Solution?

Here’s the problem. Stealing unlicensed music (especially for potential profit) is wrong, but is filing strikes and threatening legal action the best path for the artists and the game community?  I don’t think it benefits either. I would say that it’s a scummy practice to justify theft of intellectual property by claiming that you are “paying them in publicity”—but many acknowledge that that might just be the case for some rhythm games, especially osu! Many artists whose songs have been used for popular beatmaps in osu! have noticed that on music streaming services, those songs are consistently their most popular, experiencing a spike in popularity after the ranking of a map. Is this just a statistical non-issue (popular songs are more likely to be mapped), or has the game actually benefited the artist? Well, that is ameliorated by a system that transitions the rhythm game from a scrappy community project to a legitimate voice in the industry—just ask the artists to join you!

Officially starting with the signing of Norwegian complextro producer cYsmix in late 2015, the Featured Artist program allows musicians to contact the osu! team and officially sign a contract allowing some or all of their music to be mapped and ranked in osu! with no legal consequences, as well as to gain official promotion from the game. (Sources unavailable, but artists may also receive royalties for this.) This allows many artists to form a symbiotic relationship of sorts with the game and to clear up potential copyright problems. While it hasn’t yet solved the monetization problem with streamers and tournaments (there are still countless artists whose unlicensed music has continued to be mapped), it’s a step forward and a proactive way to legitimize the game and build a solid baseline, much like arcade rhythm games and the console games of old.

Of all the people… they’re here too.

Of course, even so, it’s not without its problems. As of yet there is only one song that has ever been specifically made for the game, and osu! has caught a lot of flak from people from other communities for stealing the shade. Think about all the “obnoxious fans” that think of a lot of the artists’ popular tracks as “osu! music” even though it’s clearly from a different source. Many artists such as Camellia have gotten some hate because of that, with people claiming that they’ve sold out or betrayed other communities. Once again, another barrier to true legitimacy as a game, and for good reason.

Another reason this option is taken by many artists is because of the publicity that the game has given some musicians in the past. Zekk, a Korean producer, created a (now deleted) Twitter thread speaking about how his perspective of osu! only changed because of the high level of popularity he gained from the single track “Trigger (Zekk Remix).” Even recently, in January 2021, he tweeted:

Clearly the job is far from done. It is truly difficult to regulate a game run almost entirely by the community.

Conclusion: Proactivity

Sitting around won’t do anything. osu! is only one of the first games whose community has experienced these kinds of growing pains, and I commend the team for actively developing a system that attempts to compromise and face the problems head-on. But what happens once all these other games explode in popularity, if they do? What about Beat Saber, or Clone Hero, or Quaver? While it’s been demonstrated that it is possible to survive through it all, it’s also an elephant in the room that every emerging rhythm game has to address some way or another. I’d like to see them take some steps a little earlier in their development than osu! did, to avoid repeating some of the same mistakes.

The same really goes for copyright law in general. Many would say that the copyright and DMCA law governing Internet property, especially that of YouTube videos, is horribly outdated and hardly serves content creators. It could be argued that many of the actions taken against rhythm game content is justified, but there are countless other that completely aren’t. Once again, proactivity is prevention—getting governing bodies to create a more transparent system to govern Internet intellectual property will spare us tons of strife going into the future. As well, there needs to either be a statement about either a strict regulation or a free use policy regarding music and livestream content; give them rules or give them freedom, but don’t make them paranoid all the time.

Either way—just let me click my circles in peace, dammit.

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