I've seen quite a few people asking whether this is DMCA abuse. They want to know if a company can use the DMCA takedown process in good faith to try and suppress pre-release spoilers.

The answer, at least in my opinion, is "probably yes." https://twitter.com/CyberpunkGame/status/1334199901593464832

Full disclosure: I'm speaking about streaming and copyright law on Monday at a University of Warsaw video game law event. The event is taking full advantage of the Cyberpunk release, and CD Projekt will have someone from legal participating.

But back to the question -

Although it's not clear in the statute itself and the case law is limited, it seems reasonably well accepted that a copyright owner must take fair use into consideration when issuing a DMCA notice.

So the question is really whether including the release date in that assessment is legitimate. It almost certainly is. Many of the individual fair use factors will shift a bit when the work is unpublished - when it's pre-release. https://twitter.com/RekietaMedia/status/1335000571145834497?s=20

Harper & Row v Nation Ents, 471 US 539 (1985) is on point here. That was a case where The Nation got Ford's memoirs before release and published some big scoops (particularly about the Nixon pardon). SCOTUS found that this wasn't fair use.

Does this mean that a pre-release stream that scoops the publisher isn't fair use? No. That would still be a case-by-case assessment, and there are still a lot of grey areas. Spoilers can easily be fair use and often are.

But the fact that these are spoilers is absolutely relevant to the fair use inquiry, and a company can easily form a good faith belief that something they'd otherwise consider to be fair use is infringing in the spoiler context.

So, yes, CDPR can absolutely use DMCA to take down pre-release streams. Even if it was DMCA abuse they'd probably be able to do so safely because §512(f) has no teeth. But it's probably not DMCA abuse. The spoiler issue is a legitimate part of the inquiry.

And all that assumes that CD Projekt thinks streaming is fair use and not something that would infringe their copyright, but they're OK with people doing at least for now.

The question of streaming and infringement is wide open as far as I can tell.

So, yeah, CD Projekt is on pretty firm ground here.

/fin

For clarity:
These aren't my views on how I want fair use and/or the DMCA to work. They are my views on how it does work now.