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So let's say I am a game developer, and somehow the game I was working on was leaked on the internet. Since nobody can legally obtain a copy of my game, can all the review of the leaked material be taken down and prosecuted, or is it defended by fair use?

Furthermore, does it matter how much my material spread for it to be enforced by fair use?

This article makes it seem like an unapproved source is enough to disqualify fair use: https://smallbusiness.chron.com/copyright-laws-30-seconds-music-61149.html

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  • This question focuses on the narrow application of fair use, but there might be other areas of law applicable to the scenario discussed you might address in follow-up questions. Even if the review itself contains only fair-use copies of the copyrighted material, the reviewer clearly made an unauthorized copy of the full game for his personal use. Since having this copy enabled him to publish an arguably damaging review, I would ask the question if someone who has made such a copy can be held liable for such damages.
    – Will
    Dec 1 '20 at 12:40
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Probably not

I think this question represents a misunderstanding of the linked article, and in any case of the specifically US doctrine of fair use.

Fair use is always based on a part of a copyrighted work copied without authorization. If there was authorization, there would be no need to resort to the defense of fair use.

The article discusses the commercial use of short sections of musical works used for commercial purposes. It points out that the idea that any use of an excerpt of less than 30 seconds is permitted is a myth. In this it is correct. While the amount of a copyrighted work used is one of the four factors to be considered in deciding wither a use is a fair use, it is not the only one, and no specific amount is always permitted. In Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) The US Supreme Court held that quotes amounting to about 3-400 words from a 500-page book were an infringement, and were not a fair use, because they were the "heart of the book".

The linked article says that one should ask "Was the work obtained from a legal source, in a lawful manner?" and asserts that "taking a copy from an unapproved source invalidates fair use." Nothing in 17 USC 107 says this, and I don't know of any authoritative source for such a statement. The article also says that "Commercial, for-profit use is not fair use, while commentary or criticism may be." This is simply incorrect. While a commercial purpose tends to weigh against fair use, it does not preclude it, and commercial use has been held to be fair use in some cases. Even in the case of Harper & Row v. Nation Enterprises linked above, fair use was seriously considered, and was not denied simply because the use was commercial. No one o0f the four fair use factors is final taken alone. I do not think the linked article is a reliable guide to US copyright law.

In the case described by the question, an unreleased game has been distributed without authorization over the internet, and reviews written based on that unauthorized copy. Whoever copied the game committed copyright infringement, but a suit might not provide substantial damages unless actual economic harm could be demonstrated. (And, of course, the identity of the infringer would need to be proved.) But a review based on such a leaked copy would not necessarily be an infringement. If the review described the game, but did not quote any of its dialog or other text, and did not reproduce any sounds or images from the game, there would be no infringement. If the review did quote from the unauthorized copy, the usual fair use analysis would apply. The fact that the copy had been unauthorized would not determine the outcome.

Fair use is defined by 17 USC 107. This provides:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Note that criticism is one of the specified purposes for which fair use is designed, and an unpublished work is still subject to fair use. If the review quoted so much of the game that the potential market for it was harmed, that would weigh against fair use, but it is hard for me to see how a mere review could do that to an interactive game.

(17 USC 107(4)) is normally applied when an infringing copy serves as a replacement for the authorized version, and sales are lost as a result. I suppose it might be argued that a bad review that was a direct result of an infringement came under this provision, but it is a strech at best, and US First Amendment considerations would tend to prevent such a ruling.

In short, it seems unlikely that any normal review would be an infringement, and that the game was leaked would not make it one.

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  • Ah, I only linked the article because at one point it says that the source has to be authorized for fair use to be a viable defense.
    – Sir Jobo
    Nov 29 '20 at 17:25
  • @Sir J I have edited my answer to more directly address this contention and other comments in the linked article. I disagree with the article on that point. Nov 29 '20 at 18:10
  • Complicating things, one might argue that a (negative) review of an as-yet-unreleased game is harmful to future sales... though if you were going to chase that, you might have better luck under libel laws.
    – Matthew
    Nov 30 '20 at 16:15
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    @Matthew Libel might be a possibility in such a case, but to win the plaintiff would need to prove that false statements of fact were made, not just negative opinions. That might be hard to do. Nov 30 '20 at 16:23
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    @DavidSiegel: Indeed, applying (4) in cases of criticism, review, parody, etc. would eviscerate the entire doctrine, as those cases are the whole point of even having a fair use exception in the first place.
    – Kevin
    Nov 30 '20 at 17:59
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It would not be "fair use" to illegally appropriate and use the entirety of a software package, even for the purpose of making a commentary. Publishing a review of some IP is not itself infringement: but, it provides evidence that a copy was illegally made. It is therefore possible that you could succeed on an infringement suit, arguing that you have direct evidence of copying. Installing and using pirated software is itself infringement, so the question is whether you can prove that defendant did copy (install) without permission.

The reviews play little role in this process: you can't prosecute a review and you can't get the review taken down, because the review itself does not infringe. They are only evidence that there was infringement, so the matter reduces to how persuasively you can show that the reviewer did infringe.

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  • 1
    But what about this scenario: the game that got leaked was really buggy because it wasn't finished, so it had a lot of defects, and now that people will review it badly based on the buggy leaked material (which is NOT the finished product), it will have a detrimental effect to the sales of the finished product, since the people will likely remember the low scores from the review of the buggy leaked game. So wouldn't they, in this case, directly affect your sales and the market for your game?
    – Sir Jobo
    Nov 29 '20 at 17:23
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    This answer seems to assume that the reviewer is the person who made an unauthorized copy of the game and installed it without permission. But if a third person made the copy and showed it to the reviewer, that person, and not the reviewer, would have committed infringement. In any case the issue of economic harm would need to be addressed in any such suit. Note that statutory damages for unregistered works are limited by 17 USC 412. Nov 29 '20 at 18:25
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    It doesn't assume it, it opened the door to that possibility. It's up to the plaintiff to prove that the author actually installed and played the game, that it was unauthorized, and so on. The question is extremely open-ended as far as the facts are concerned (what the heck does it mean to "leak" software?).
    – user6726
    Nov 29 '20 at 18:52
  • I suppose that by "leak" was meant "to transmit a copy without authorization, probably over the internet". I take your point about possibility vs assumption. Nov 29 '20 at 19:13
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    @user6726 usually "leaking" software is when an unauthorised copy is produced. In the context of game development, an employee might get a copy of the software and distribute it before it's complete or without any official plans for such thing. The employee might be acting maliciously or negligently here. The same could also happen if an unauthorised party gains access to the facilities. It's usually not a reverse engineered code or data mined information but actually giving away the actual data.
    – VLAZ
    Nov 30 '20 at 12:44
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Reviews themselves are not a derived work. You have no right to prevent people from merely talking about your work.

What you do have rights in is the artwork itself, and this is where the fair use argument has been kicked back and forth; you may be able to get screenshots and background music removed by a DMCA takedown.

Note that actual litigation is expensive and time-consuming; several prominent cases (Oracle vs. Microsoft on Java, the SCO Linux case) consumed years and outlived the original companies responsible.

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  • I'm ignoring the unauthorized copying for the moment. I believe that a lot of reviews (which contain footage, descriptions of the game, pictures, etc) are derived works, but the protections around reviews (commentary and criticism) are so strong that this is almost always fair-use. It probably is possible to make a review that's not a derived work, but generally people want screenshots, detailed information about the game, and similar things.
    – Patrick M
    Dec 2 '20 at 2:25

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