Nintendo Hijacks Ad Revenue From Fan-Created YouTube Playthroughs

mcleland writes "The BBC reports that Nintendo is now using the content ID match feature in YouTube to identify screencap videos of people playing their games. They then take over the advertising that appears with the video, and thus the ad revenue. Nintendo gets it all, and the creators of these videos (which are like extended fan-made commercials for the games) get nothing. Corporate gibberish to justify this: 'In a statement, the firm said the move was part of an "on-going push to ensure Nintendo content is shared across social media."'"

Comments

Not going to help them

[Anonymous Coward]

Now we can safely say no one will ever post a video with a Nintendo game in it again.

Re:Not going to help them

[flyneye]

Or how about a class action lawsuit? Do clothing designers take Hollywood profits because their clothes are on actors?
I think in fact not only should Nintendo not get ANY money, because they already did when they sold the movie making tool to the customer, but they should have to pay for product placement. Stick that in your court and litigate it. Remember Hollywood will be watching that one closely, and could even donate some shysters to the cause.

Re:Not going to help them

[Anonymous Coward]

Do clothing designers take Hollywood profits because their clothes are on actors?

They usually pay Hollywood to put those clothes on their actors because they know they'll make money that way.

Nintendo are apparently trying to lose money by discouraging people from uploading videos that promote their games.

Re:Not going to help them

[Anonymous Coward]

Or... Look Nintendo, I can do that too! I'll take your game, make a copy of it, sell it and keep all the profits! Thank you for helping out with the business plan!

Re:Not going to help them

[RyoShin]

Nintendo are apparently trying to lose money by discouraging people from uploading videos that promote their games.

While I'm sure that people liked the ad revenue that they got from their video being viewed (anyone have any idea how much they get?), my understanding of LPs is that they are almost always a labor of love, not of cash. So Nintendo taking away the ad revenue might discourage some that were using it as a business (though if your business relied entirely on one company's completed product, protected under copyright, you need to rethink your business plan), but the majority will probably continue doing what they do.

In fact, this might even increase LPs: while I don't imagine it was a huge group, there might be some worried about a lawsuit for using Nintendo's IPs. By Nintendo taking the ad revenue, this is explicit permission to use video of their properties, which may bring more people to the table who just wanted to share but were concerned over copyright.

On the face of this, I'm of two minds: on the one hand, the videos don't exist without the users who spent their time to edit and upload them, and they do act as free advertising (or the opposite, if the game turns out to be bad and the videos show that off). On the other, the user would have nothing to upload if not for Nintendo's product, and they do properly own the copyright on those games. Personally, I think it should be split (50/50 sounds good, though I'm sure both sides would prefer a larger slice,) but the power is all with Nintendo here (the big company, the copyright holder, etc.), so that's not going to happen.

Full disclosure: I've done one basic LP (Bioshock Infinite), posted to Livestream, got no ad revenue. (And it doesn't exist anymore since I had a free account.)

Re:Not going to help them

[GoodNewsJimDotCom]

Lets say you are selling a car. Then you find out thousands of people are showing themselves driving your car, and talking about how awesome it is. That is free advertising. Now swooping in and going,"Give me all the profits from those videos." is something a cartoon villain like Monty Burns would do.

Re:Not going to help them

[damnbunni]

Let's say you're selling a book. People are making films of themselves reading your book, with all the words visible onscreen, and putting up ads and making money off of reading your book.

Instead of having their video yanked and suing their infringing ass into oblivion, you clear your throat and coopt the ad revenue, but let the video stay up.

Seems reasonable to me.

Which path do you think the Tolkein Estate would take?

Re:Not going to help them

[Anonymous Coward]

Just because they made money on your video does not prevent them from suing you for violation of their copyright, should they decide to and have a case. All it does is sort of seem like it would be "fair" to not sue you. Business people don't believe in "fair". They believe in making money. They also believe in not allowing any excuse to allow someone else to use their property.

Re:Not going to help them

[hawguy]

Let's say you're selling a book. People are making films of themselves reading your book, with all the words visible onscreen, and putting up ads and making money off of reading your book.

Instead of having their video yanked and suing their infringing ass into oblivion, you clear your throat and coopt the ad revenue, but let the video stay up.

Seems reasonable to me.

Which path do you think the Tolkein Estate would take?

The difference between publishing the words to a book and showing a game is that everyone buys a book to read the words, but few (?) people buy a game just to watch someone else play it. Otherwise, game makers wouldn't have to actually create games, they could just sell pre-canned videos of what game play would look like if they actually produced the game.

Re:Not going to help them

[SuperTechnoNerd]

Ford tried something similar to this several years ago. They claimed rights to any photo with a Ford product in it.

Re:Not going to help them

[flyneye]

Yes,but once Nintendo set the precedent, what mushrooms from that? Whatever's acceptable stays that way till litigation or legislation. Hmm.. let's think... what other filmmakers could that affect if you can't use certain media, maybe you can't use certain locations or those locations can't have certain elements. Will a company be able to sue successfully because it's product appears in a scene of a movie it dislikes? Maybe they just want a huge chunk of the revenue when they see their element in a movie like Nintendo. This has just been a minute of thinking by me. How about legal dept. everywhere taking some time to think of the possibilities.
It would be in Hollywoods best interest, any filmmakers best interest to snip Nintendos testes right now.

Re:Not going to help them

[hairyfeet]

Seriously who cares, Nintendo is FUCKED with a capital F. They bet their ass on the casual gaming market only to find that the casual gaming market is "here today, gone later today" and are too busy playing with their iPads and Kindle Fires to give a rat's ass about another Nintendo gimmick controller, their sales are terrible and that is when compared to systems that should have been EOLed 2 years ago, and when the PS4 and Xbox next come out along with the Steambox Nintendo will be lucky if they get half a shelf in the kiddie section.

Everyone should just post a link to TFA when a Nintendo story comes up anywhere on the net, just so everybody will know they are acting like douchebags, but with the casuals going to tablets and handhelds being replaced by phones? Yeah unless Nintendo can pull off a miracle they be fucked.

Re:Not going to help them

[RyoShin]

Will a company be able to sue successfully because it's product appears in a scene of a movie it dislikes?

As stated by the GP, many companies will pay studios to use their products in movies as a form of advertising, so this would be rare. I did find this article:

Legal experts say fairly recent product placement practices, in which companies pay producers to use their products in TV and movie scenes, have mistakenly given corporations the idea that they can control the use of their products on camera.

Experts say studios are not obligated to get permission before featuring a product in their work. [...] Filmmakers, legal experts say, are protected under federal "fair use" privileges for use of trademark products without getting the OK of the rights holder.

Emphasis mine. Of course, this is different from Let's Plays because the products in movies are usually auxiliary (often being swapped with anything similar, fake or real; though the article doesn't say one way or other, I think Paramount will remove the cans to avoid the potential of a lawsuit, regardless of standing), whereas in Let's Play they are the primary product, front and center. The only thing about the videos is the voice-over added by the video creator and any editing that went into its creation. You can't switch out in this case, because then you wouldn't have a video. Taken in more legal terms:

Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.
[...]
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

IANAL, but since LPs tend to cover the entire game, that means they use a substantial portion of the copyrighted work, and so would not be considered "fair use". (The other factors come into play, but this is the big one IMO.) If someone was doing a review, using footage of the game, then that might be fair use because the review would only use a dozen or so minutes, a very insubstantial portion of the game. (It may, however, break the first factor about commercial uses, where applicable, so overall it may not be fair use.)

Re:Not going to help them

[flyneye]

I would site cases over audio sampling . By changing the recording by at least 5% it could be utilized. So run some filters over the film portion of the program.Change it by 5%, although if narration appears and covers more than 5% of the audio, which it probably does. So, do we weigh a 5% portion of a digital file to find how many bytes are audio and how much is video? Originating in what codec? If audio is only 10% of the whole thing,then covering half with narration or voice overs and sound effects would fullfill that. If audio is 30% of the file, then much less adjustment is needed.

Re:Not going to help them

[westlake]

Or how about a class action lawsuit?

US federal courts are hostile to class actions.

Show a judge clear evidence of great many similar and lethal asbestos related cancers in an industry that knew what was happening and did nothing to stop it and he will least be willing to hear you out.

There is a terrible urgency to such cases and the stakes are high.

The division of add revenues from a gamer's YouTube video ---- a clearly derivative work based on Nintendo's IP? The chances that any individual plaintiff will have been damaged enough to meet the legal threshold for a lawsuit are dim. The chances that he would win on the merits are dim.

Re:Not going to help them

[hkmwbz]

The "casual" market is in fact there all the time. All you need to do is release games the "casual" market wants. Easier said than done, but Nintendo did it with Wii. They managed to release several games that sold better than any game on the other systems.

Nintendo is fucked because they gave up on the "casual" market. The Wii U is an attept at a "hardcore market" console. Nintendo said so themselves. Nintendo will fail at hardcore, so they should return to making "casual" games like 2D Mario and Wii Sports.

Look, Nintendo managed to release games that massively increased the Wii console sales long after the initial rush had died down. This shows that the "casual" market is there for anyone who bothers to make games that cater to this market.

Re:Not going to help them

[JMJimmy]

The question really is: Is it an original work?

In Canada the answer would be without a doubt: yes. Nintendo would have no right to that revenue because a) the medium is different b) how a game is played by a particular user is an original work c) any additional content (audio explaining stuff about the game) is more than likely original. The only thing is that they would have to make sure to credit Nintendo but no more than that.

In the US it's likely going to be a different story - Canada has specific language in the copyright laws about original works based of copyrighted material.

Re:Not going to help them

[Anonymous Coward]

Yes. The book analogy is stupid. This is more akin to recording yourself building a LEGO model, then uploading it and having LEGO sue you.

Re:Not going to help them

[vux984]

Nintendo would have no right to that revenue because a) the medium is different b) how a game is played by a particular user is an original work c) any additional content (audio explaining stuff about the game) is more than likely original. The only thing is that they would have to make sure to credit Nintendo but no more than that.

That's why in Canada you don't need film rights to make a movie out of a book, because

a) the medium is different
b) how the film is shot by a particular director is an original work
c) any additional content (audio soundtrack) is more than likely original.

You just have to give the author credit.

No.. wait... that's all completely wrong... even in Canada.

I don't know where you got your information, but its seems entirely wrong. I honestly don't know what a game playthrough would be ruled as in Canada, but its definitely a derivative work. Whether it falls under Fair Dealing or not I couldn't say. Its one thing to include some screenshots or animation as part of a review... but a complete play-through from start to finish really is something else entirely.

Re:Not going to help them

[RyoShin]

Sounds like ya'll have a far more sane copyright system than we do here in the States. Down here, the allowed use of copyrighted works without permission is based on "fair use". Here's a quick overview of how the law looks at it, but that's like taking a scoop of water out of an ocean; "fair use" is a very complicated topic, and the variety of factors are often argued and fought tooth and nail, both in and out of courtroom.

Re:Not going to help them

[flyneye]

You mean like all the IP fights constantly in motion since the internet went public?

Re:Not going to help them

[retchdog]

It's a bit sui generis. It's using a substantial portion of the copyrighted work, yes, but it's transposing it to an entirely different medium.

A book review can summarize the entire plot, because doing so doesn't substitute for the experience of reading the book.

This is sort of, but not quite, like playing through the entire game. Does watching it substitute for playing it? It doesn't seem like it to me, at least in some cases.

According to my principle, it would come down to how much of the game is just a slightly interactive movie. For example, hours of tetris gameplay should be allowed since 1) it's still an infinitesimal fraction of the total possible amount of tetris gameplay, 2) the skill of the player is frankly a much more substantial portion of the work than the tetris game itself is. In contrast, a playthrough of ff7 would be less kosher and a playthrough of indigo prophecy/fahrenheit would be completely forbidden.

Re:Not going to help them

[JMJimmy]

"I created a video of how I played X game and narrated it" is very very different than "I made a movie based on your book"

While copyright owners do have the rights to control derivative works that does not give them blanket rights to other original works which may utilize parts of their work. The question is how "original" is the work in question. If a person is simply copying the cut scenes from games and uploading them then that's not really anything original. The act of playing a game is unique to each player, the act of narration based on that play is original, so the question becomes whether the use of the textures/audio associated constitute fair use or infringement.

To me it's fairly clear that 29.21 applies - especially

the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

. 29, 29.1, 32.2, and in the case of individuals, 29.3 most definitely applies.

What is also at issue is that the resolution Google applies is done so without a) audit of each clip b) following the rules set out under section 34. Google itself may be liable for violating those provisions in Canada.

Re:Not going to help them

[murdocj]

"I created a video of how I played X game and narrated it" is very very different than "I made a movie based on your book"

Actually, making a video of playing a video game sounds MUCH more derivative than making a movie of a book. Everything in the video of the game, the sound, the art, the gameplay, is the creation of the game maker. In a movie, everything you see other than (some of) the story line was created by the movie maker.

Re:Not going to help them

[RyoShin]

A book review can summarize the entire plot, because doing so doesn't substitute for the experience of reading the book.

But if they read the entire book to you in video, it wouldn't be covered by Fair Use, even though they're recording the video with your their equipment and using their own voice to read the words. LPs don't summarize (again, to my knowledge), so there's no comparison.

While a Let's Play might not cover 100% of the game, they cover the vast majority (so like someone reading a book over a video, and going "this part is boring so we'll skip ahead a few pages"). The fact that you aren't personally playing it doesn't change the fact that they're still using Nintendo's copyright, which is on the characters, settings, and story within the game as well as the game itself. Whether we are inputting the commands or reacting to it ourselves, or even getting enjoyment from watching the game, is a moot point. If someone were playing live in front of a sufficiently large audience, you can be sure that permission to broadcast the gameplay to the crowd was obtained at some point, in the same way that is done for movies.

I don't disagree that the experience is different between watching someone else play and playing it yourself. However, legally, that does not matter at all. Put another way, if someone streamed a theatrical release for free over the internet, but it was upside down and briefly played vuvuzelas at random intervals, we'd have a very different experience than seeing it in theaters, but it would still be copyright infringement because it is transmitting the vast portion of the movie.

(Again, IANAL, so this is all to the best of my understanding.)

Re:Not going to help them

[JMJimmy]

Indeed. Our laws are far more specific and deal with different mediums in different ways. While far from perfect or comprehensive there are 20 different types of exceptions. http://laws-lois.justice.gc.ca/eng/acts/c-42/

The one that protects individuals in a huge way is http://laws-lois.justice.gc.ca/eng/acts/c-42/page-21.html#h-31 - especially since it can allow for costs. You can still gain revenue from the work so long as you do not gain overall or in a substantial way (ie: advertising revenue is likely not going to recover the costs of producing said videos)

Re:Not going to help them

[JMJimmy]

While the sound/textures/story/video are unique to a game, the game on it's own merely sets boundaries by which a user can interact with it. The act of playing in their unique way constitutes an original performance. It's almost like saying Nintendo created a stage so every play held on that stage is somehow theirs? Obviously more nuanced than that but in the case of walkthroughs or say Red vs Blue style videos: The main thing that can be copyrighted, the story, is not what is being showcased. ie: Section 32.2

32.2 (1) It is not an infringement of copyright

        (a) for an author of an artistic work who is not the owner of the copyright in the work to use any mould, cast, sketch, plan, model or study made by the author for the purpose of the work, if the author does not thereby repeat or imitate the main design of the work;

ie: the main design of the work in a walkthrough is not to copy & distribute their game, it's to inform other owners of said game of how they might use the original work.

Re:Not going to help them

[StuartHankins]

For those of us who dislike Microsoft and got f'd up the A with the Sony rootkit, we would purchase a console from Satan if one was made available. It just so happens that company is "Nintendo".

Re:Not going to help them

[JMJimmy]

That argument isn't exactly right though. Following your analogy, while the book is being read they are providing commentary over top (pushing the reading itself to the background) as their interpretation of the work. It's more of a case study than a direct reading.

Re:Not going to help them

[retchdog]

i know what copyright is, thanks.

and yes, it does matter.

Re:Not going to help them

[vux984]

"I created a video of how I played X game and narrated it" is very very different than "I made a movie based on your book"

In that making a movie requires a LOT more original work to accomplish? You have to write a screenplay, direct actors, each of whom delivers an original interpretation of the part, then theres lighting, sound, sound effects, soundtrack, CGI, props, sets, costumes.

Your right that's a lot more work than pointing a camera at a TV and playing a video game while you jabber on about it.

The act of playing a game is unique to each player,

Yes, and reading a book into a microphone is a unique performance as well, (maybe you do silly voices, maybe you read fast then slow, then fast again...) but you can't read the harry potter books onto youtube and expect the author to have no say in the matter.

To me it's fairly clear that 29.21 applies - especially "the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter"

Yes it applies, but that's not enough. For profit uses are more likely to be ruled infringing than non-profit uses - if you sold your walkthroughs as game guides that'd even more likely to be reuled infringing, but non-profit uses can still infringe. Its just a factor taken into consideration. Moreover, these youtube videos were generating advertising revenue... so there was a profit result whether that was the primary purpose or not.

And Nintendo's move was just to claim the ad revenue. Which at the end of the day seems like a reasonable move.

Re:Not going to help them

[JMJimmy]

revenue != profit.

You make the same mistake as another commenter. If the harry potter book was being read in the background while someone explained the narrative devices being used, commented on quality, explained the subtext, etc then the work is not attempting to copy/imitate the original, it's providing something else entirely. If he was narrating the story that is a different matter, it may get into satire or it may simply be infringement.

Re:Not going to help them

[Cito]

Yea it officially hit "Angry Video Game Nerd" many of his nintendo videos the ad revenue is no longer going to him they are now funneled to nintendo.

sucks, course I run with adblock on 24/7 so whatever

time for people to get original and stop trying to make money off "lets play" and "angry reviewer schtick" that sites like TGWTG copied off AVGN and such.

Re:Not going to help them

[flayzernax]

Most people did not make very much. There were a few LPers with 1.5 million ~ views. Who maybe grossed enough to live comfortably on. But YT is very sekret about these numbers and the LP'ers I watch dare not squeal.

I personally think Nintendo is going to far and youtube is making a very huge mistake allowing itself to be bullied so easily.

Re: Not going to help them

[Anonymous Coward]

I can't believe I first heard about this yesterday. Slow .

Re:Not going to help them

[Anonymous Coward]

"According to my principle, it would come down to how much of the game is just a slightly interactive movie."

This principle is bullshit. Since we know how human greed operates, we've only seen endless expansion of corporations rights and the dwindling rights of customers to own their own shit without the nanny corporation looking over their shoulder trying to extract every dollar.

Re:Not going to help them

[Xeno man]

IANAL, but since LPs tend to cover the entire game, that means they use a substantial portion of the copyrighted work, and so would not be considered "fair use". (The other factors come into play, but this is the big one IMO.) If someone was doing a review, using footage of the game, then that might be fair use because the review would only use a dozen or so minutes, a very insubstantial portion of the game. (It may, however, break the first factor about commercial uses, where applicable, so overall it may not be fair use.)

The amount of the original work used is a factor determining fair use but nothing about fair use says you are only allowed to use x amount of footage for fair use. The amount used is compared to how much is needed for the new creation. Lets say I'm doing a school report on "whoever" popular artist and their portrayal of women in their music videos or what ever reason. I can use 100% of the music video as the entire video is relevant to my report. Removing any amount of the video may remove the context of my views or statements and limit my ability for a honest report.

The same is for Lets Play videos. The game is a big part of the video but removing any part of the game defeats the point of a LP. The part of the new creation is the player playing the game. I as a viewer have zero control in the game and I'm entertained by the play style or the commentary.

The troubling part is not if the videos are legitimate or not, but the fact that Nintendo can just take what it wants because it says so. Not only is it one sided, (there is no way for any individual to take ad revenue from Nintendo should they find Nintendo using their creation, however unlikely that may be), but there is no oversight or level of authority to answer to when they fuck up, and they will fuck up.

Re:Not going to help them

[10101001 10101001]

A much better analogy would be sheet music and performances. It makes little sense to pretend that sheet music and performances are identical and simply handing performances to the sheet music author seems pretty preposterous.

The fact that there's a mechanical licensing system for music has a lot to do with preventing the sort of absurdity that Nintendo seems to be pulling, the idea that they can monopolize all photos, videos, whatever of any game they ever made--outside a very limited scope. Of course with music, the absurdity was realized very early on. It took something like Youtube and micro-based payments before the situation came down to the level of game performances; before then, there wasn't enough hard currency for Nintendo, or anyone really, to flex their muscle on the subject.

PS - Ask "Which path do you think the Tolkein Estate would take?" is sort of like asking "What would a pyromaniac do with kindling?". It's the great shortsightedness of many authors, like Twain, to not understand that in trying to further copyright past their own life, all they have done is given "Estates" an excuse to be nothing more than useless, money-grubbing parasites. It entirely misses the point of copyright, to reward authors--not their children, grandchildren, et al. That a *live* author should shower his children, grandchildren, et al with that reward is his/her own prerogative. To codify it into law is absurd. And yea, I can see the sticky situation of an author dying young or a very old person seeing very little financial worth to writing. But, that's more a core truth of the inequities of life. Granting copyright past death doesn't really fix anything.

Re:Not going to help them

[hairyfeet]

So what is wrong with Valve? From what I understand it looks to open consoles up the way competition opened up the PC in that they will come up with the OS and minimum specs but any company that wants to add to that or make it better is welcome to. If someone wants to make a portable? Go right ahead, if somebody wants to make one twice as powerful? That is fine too as the baseline is gonna be just that, a baseline, so you can choose the model and price point that bests fits your needs.

But I don't blame you for hating MSFT on the console as while I think Win 7 is a truly great OS the fact that they charge for MP on X360 is just fucked up IMHO, if you buy a game you shouldn't have to pay a second time just to use a major feature of the game you had already paid for. No need for you to get screwed by Nintendo though, if Valve can even do half as good with their console as they had on the PC it should be a damned nice system.

Re:Not going to help them

[hairyfeet]

I don't think so and here is why: When the Wii was released a tablet that could play games cost $500+ and a phone that could play games if you could even find one would have cost a grand, now you get $99 tablets that comes with Angry Birds and a $150 phone can likewise play most if not all the games Android has to offer.

What has screwed Nintendo is that frankly other than a handful of titles there was nothing but crap on the Wii, in fact I know a lot of people who bought the Wii and every single one is rotting in a closet, and after getting burnt buying the Wii only to find a handful of good games and an assload of shovelware most folks aren't gonna take the chance. I mean why should they when that tablet or phone which they wanted for other tasks can play games as well?

Re:Not going to help them

[Anonymous Coward]

What if you take a movie, record a commentary while watching it but upload it with the video of the movie but solely the commentary track (which has the movie in the background), is that legit? Would it have to also be video of you doing the commentary? Would picture-in-picture style work?

Re:Not going to help them

[Anonymous Coward]

By Nintendo taking the ad revenue, this is explicit permission to use video of their properties, which may bring more people to the table who just wanted to share but were concerned over copyright.

That is not explicit. It is implicit. There is no benefit to anyone who just wanted to share. And where is the line for a review? If you do a review, can they claim that ad revenue too?

Nintendo either needs to approach these producers, sign contracts and make explicit agreements. Or sue them. Or they should be protected under fair use. In no scenario should a corporation be able to simply steal someone else's money just because they feel entitled to it.

Re:Not going to help them

[bfandreas]

...and Sega before that.

I wonder if they know that those generated sales if the game wasn't too bad. It might even be legally justified. But a smart move this isn't.

Re:Not going to help them

[Anonymous Coward]

I can safely say I will not buy a Nintendo anything. Was seriously considering it, too.

Re:Not going to help them

[Anonymous Coward]

In general, I'm of the mind that a Let's Play's and Long Play's should not be profit ventures. Let's plays (where there's commentary over the video) can be considered somewhat of a creative venture as you're playing the game your own way. Long Plays tend to lack the commentary and are meant more to be a visual walk-through for people who are stuck, or just don't have the time to play the game. RPG's are generally better done as Let's Plays because of the non-linear nature, the game can be completed in any way. Those I don't feel are worth trying to jump into trying to claim rights on. Specifically in MMORPG's due to the time investment to re-do things. So trying to claim rights on those videos are likely to just result in some reduction of those videos being produced, but won't stop them.

Long Plays of platformers (eg Mario), RTS, and FPS games, where there is a linear progression of a storyline, are going to be pretty much the same result no matter who does them, so claiming rights on these is questionable since everyone will have a different solution.

Like if there was a LP rulebook it would look something like this:
1) You will record the highest quality video using the native hardware for which the game was released
1a) Failing that you will make the best attempt to emulate the native hardware
or
1b) Failing that you will not try to enhance the video beyond pixel doubling and aspect ratio correction

2) You will record only games that you legally purchased
2a) You will omit the storyline/cutscenes from videos if the game is a new release to avoid spoilers.
2b) You will include storyline/cutscenes if the game is no longer available to be purchased.
2c) You will cut or censor any copy-protection gimmicks solved during the video.
2d) You will not record video of pirated games, no matter how old or obscure it is.

3) You will not monetize gameplay footage without adding something of value to the video (commentary/subtitles/links)
3a) You can monetize unofficial translations of games if there has not been an officially localized version of the game
3b) You will not monetize "hacks", "exploits/bugs", "tool-assisted speed runs", or encourage unauthorized modification to the game*

* eg showing how to cheat in a MMORPG

4. You will notify players in a multiplayer/MMO game that you are recording them, and remove names, text-chat and voicechat during record.

Re:Not going to help them

[amaurea]

While I'm sure that people liked the ad revenue that they got from their video being viewed (anyone have any idea how much they get?), my understanding of LPs is that they are almost always a labor of love, not of cash. So Nintendo taking away the ad revenue might discourage some that were using it as a business (though if your business relied entirely on one company's completed product, protected under copyright, you need to rethink your business plan), but the majority will probably continue doing what they do.

More than a redirection of where the advertisement money goes, the problem is that ads will be added even if you didn't have them before. So if you had a nice, viewer-friendly ad-free channel, with a policy of no "monetization", you will suddenly look like you've sold out your viewers after all.

You can contest this, though, by filing a counter-notice, which will then be followed (pretty much automatically, I hear) by the company making a DMCA-claim, and you having to make a counter-claim (if you don't you are back in the situation where you started, except that you now have a copyright strike against you, which will prevent you from uploading videos longer than 15 min, among other things, apparently). This makes the whole process rather scary. I personally have a gameplay video this happened to, and made sure that my video was fair use. Sadly fair use is a bit wooly, but factors that play into it are:

  1. Whether the work is transformative enough (yes is good)
  2. Whether it can be used as a stand-in for the original (no is good)
  3. Whether it is non-commercial (no is good)
  4. Whether it could be expected to have a negative imapct on the original (no is good)
  5. Whether it is used as political commentary, parody or similar (yes is good)

and there might have been others too. These do not all have to be fulfilled, one is enough in principle, but the more the better. I convinced myself 90% that my video is actually fair use, but that is not enough that I want to risk a lawsuit about one little video. Neither do I want the effort and expense to track down a lawyer, meet him, explain the issue, and pay his not-insignificant salary, for a video like this.

The upshoot is that fair use is risky and hard to assert on Youtube, and copyright infridgement is an accuser's game, with the accuser (being a big, rich company), facing no risk from accusing, while the defendant has everything to lose.

Re:Not going to help them

[Half-pint HAL]

I think in fact not only should Nintendo not get ANY money, because they already did when they sold the movie making tool to the customer, but they should have to pay for product placement. Stick that in your court and litigate it. Remember Hollywood will be watching that one closely, and could even donate some shysters to the cause.

Hollywood's already established precedent. If you have guys watching the TV in your film, you have to get an agreement with the people who made the programme they're watching. They can license it for free if they want, and they can even pay for product placement if they want, but they're well within their rights to demand cold, hard cash.

Re:Not going to help them

[Half-pint HAL]

Except sketches, designs, moulds, casts etc are all talking about artwork. Your argument suggests it would be OK to make a complete walkthrough if the LPer recreated the graphics from the ground up.

Re:Not going to help them

[Anonymous Coward]

Why are people even arguing about this? Nintendo is in the wrong. Period.

Re:Not going to help them

[cheekyjohnson]

time for people to get original and stop trying to make money off "lets play"

Why? I don't see why Nintendo is entitled to the ad revenue at all.

Re:Not going to help them

[Requiem18th]

Yes, but it cuts both ways. LP's are done for love not profit, but aren't games supposed to be done at least to some degree out of love? What fucking Nintendo is saying here is that the have absolutely zero interest in their games apart from profit. That's... off putting to say the least. "Thanks for your hard work advertising our game! What's this you make a measly return? Let us take that from you too! Keep up the good work!"

Personally I recommend people to remove those videos. There's a limit to how much greed I can tolerate. What disgusts me the most is people defending this sociopathinc behavior. Unlimited greed is not only being tolerated, it's defended as the ultimate moral course.

Re:Not going to help them

[JMJimmy]

The relevant one would be "a study".

Re:Not going to help them

[hexagonc]

I don't have a problem with Nintendo taking some of the ad revenue from long gameplay videos, but all of it? For a lot of viewers, a good part of the entertainment value of the gameplay video is the player's mistakes and failings. It's the funny commentary and the sound of their voice. There's a million videos of people playing Super Mario Brothers 3 but no one cares about most of them because the person playing it sucks or is unknown. They want to know how "ClassicGamingFan34" plays Super Mario Brothers 3.

You really can't compare creating a movie from a book to creating a gameplay video because the primary merit of the book or movie is to reveal the plot. Once you've revealed the plot of the story, what else is left? This isn't true with gameplay videos because games do not normally play themselves. You can put your own personal mark on a gameplay video (and here I'm talking mostly of LPs, not just silent gameplay footage). Most games are not purchased just for the plot, but rather for a player to play the game.

Here is my challenge: if Nintendo and other gaming companies think that they deserve all the ad revenue from gameplay video, then why don't they just have all the LPs and videos taken down and have an officially sponsered LP or gameplay video? If the official video makes just as much money via ads as the fan created videos then they can rightly claim that the fans added nothing of value to the game content. But if the ad revenue drops then the companies have to admit that part of the appeal of the original videos was the personal touch of the fan that created and uploaded it.

Re:Not going to help them

[Half-pint HAL]

The relevant one would be "a study".

I don't think that means what you think it means -- it's an artwork aimed at the learner. In music, there are "études" which take the theme of a larger piece as a vehicle for teaching, and students of brush painting often perform a "study" of an established artist's work in which they try to copy it in order to master their brush technique.

Re:Not going to help them

[Anonymous Coward]

It will put people off.

Why should Nintendo make money from a free labour of love? They shouldn't!

Re:Not going to help them

[JMJimmy]

It means exactly what I think it means. Using your words: A walkthrough is a vehicle for teaching in order to master the technique required to complete a game.

Re:Not going to help them

[oppositefrog]

Its more about a slap in the face than the ad revenue, which makes the small amount of money involved more significant not less.

Re:Not going to help them

[Anonymous Coward]

Not supposed to mention it due to EULA, but I was averaging about a dollar per thousand views on Youtube. You only get paid per click, but it averaged around that figure. In the regard, Gangnam style has literally made millions of dollars of Youtube. A million views is approximately a thousand dollars.

Re:Not going to help them

[Richy_T]

A lot of the Wii's appeal is in multi-player games (Wii -> we). I was surprised when I finally bought an x-box how lacking it seemed to be in this category (not that that says anything about the xbox as a console overall). That's also something that is lacking from tablets and phones. So I don't think that that's necessarily where Nintendo is having problems.

Re:Not going to help them

[LocalH]

>"casual"
>2D Mario

Please turn in your geek card. Mario is in no way a "casual" game.

Re:Not going to help them

[Raenex]

There were a few LPers with 1.5 million ~ views.

For a single video or altogether? I'm looking at the user page of one right now that has ~150 million views total, across all videos. That's not Nintendo only, but it shows "Let's Play" videos can generate a lot of views.

Re:Not going to help them

[Anonymous Coward]

It's similar to an abridged book, of a widely varying book (such as those old books where you would turn to different pages as directed by the story, and get more than one story from the same book), and the original author is cited. So, and I know the abridged writer gets at least some compensation. How much I'm not sure, but I do know it's much greater than the 0% Nintendo is allowing by hijacking the revenue currently. There is probably a law suit somewhere in there. (possibly for both sides) Which if past behavior is the predictor of future behavior, then we will probably see the videos taken down, and ten years or longer in court over this. If the small guys can afford that. So in the end everyone looses even the consumer. The guy at Nintendo who thought this up should be canned.

If Nintendo really cared they would use the system to work out an agreement that allows all sides to profit. I'd suggest %5-%20 profits go to Nintendo and/or they are locked into using only Nintendo adds, or are required to place a link to purchase the game directly from Nintendo somewhere readily visible with each video. That way it's still profitable for everyone, still sucks a little for the content creator, but they still get a good margin of the profits. (Enough to keep them going)

Re:Not going to help them

[hairyfeet]

Actually when my oldest went to college i saw where that is heading, and its online. Damned near every kid there was playing online games, from your girls playing second life to guys having giant TF2 fragfests its ALL online. Add this to the fact that pretty much any $400 AMD laptop can play most online games just fine and its not hard to have everybody in the same room playing,hell the dorm rooms and break rooms were filled with kids playing together online.

Re:Not going to help them

[Altrag]

Absolutely correct. Nintendo publishes games. That is they take someone else's labor of love and puts their name on it (they might still have their own development division -- but even they will be kept far away from the publishing end of things for just that reason. People who are proud of their work tend to want to share it, money or no money. And the business-y types aren't fond of that.

Re:Not going to help them

[hkmwbz]

I don't like the term "casual" so I'm just using it to attempt to use a language he understands. 2D Mario is highly accessible to the masses. You know, "casual gamers." They love it.

Re:Not going to help them

[hkmwbz]

Your explanation does not make sense. All the data shows that it's the games that sell a console. Wii sales increased well after phones were available for gaming, whenever Nintendo launched a game that appealed to the mass-market.

The Wii has more popular games than almost any other console. 9 games sold more than 10 million copies, which devastates the numbers from the 360 or PS3.

If the Wii is rotting in a closet, it is because Nintendo stopped making games people wanted to play, and started churning out crap like "Maternal Instincts"-Metroid.

Why would people buy a console when they already have a phone or tablet? Er, why would they buy a console when they already had a PC? Phones and tablets are nothing but personal computers in a different form factor.

People will buy consoles if those consoles have games they want to play. It's also obvious that a lot of types of games simply suck on tablets and phones because you don't have dedicated gaming controls on those. Don't underestimate the power of physical buttons for gaming.

Re:Not going to help them

[retchdog]

From your description, it sounds more like the government is bullshit.

And, yes, the legislative and executive branches are totally fucked and act exactly as you describe.

The sad thing is that the judicial branch is currently the last hope for reasonable rulings, which is probably why the corporate media is focusing so much on "judicial activism." It's the last target.

Re:Not going to help them

[vux984]

They want to know how "ClassicGamingFan34" plays Super Mario Brothers 3. You really can't compare creating a movie from a book to creating a gameplay video because the primary merit of the book or movie is to reveal the plot.

And? I want to see how Peter Jackson directs the hobbit, and how Ian McKellan brings Gandalf to life... I'm not interested in an Uwe Boll production of the same thing starring your grandpa.

To suggest that the director, cast, and crew of a film production bring nothing to the table except to "reveal the plot" is absurd.

If the official video makes just as much money via ads as the fan created videos then they can rightly claim that the fans added nothing of value to the game content.

Nobody disputes that the fan productions add real value. But so what? They still need permission.

Re:Not going to help them

[Sedated2000]

Some of these LP makers earn a very good living. Look at the two Yogscast guys. They now have a multi-million dollar business based out of their videos they make on youtube. I personally know several who have closed businesses or quit day jobs to do nothing but make these videos. They do love the games they play, and are passionate about it, but it is also their livelihood. They take it seriously. They play games viewers are interested in, edit and make their own music for their videos, and they will sometimes even spend hours working an idea out before recording it for a video (like a minecraft machine they want to demonstrate). Nintendo taking the ad revenue from them could potentially ruin their ability to make money depending on what games they favor on their channels.

Re:Not going to help them

[Anonymous Coward]

If you read the YouTube TOS, they specifically state that video game clips are considered the copyright property of the game publishing company and are not eligible for monetization by the uploader. In fact, it specifically says that it's grounds for YouTube account termination, so these idiots are being let off easily and the game publisher is being justly compensated for the copyright violation.

Re:Not going to help them

[vux984]

You make the same mistake as another commenter.

No idea who you are referring to but I disagree that I made any mistake at all.

the harry potter book was being read in the background while someone explained the narrative devices being used, commented on quality, explained the subtext, etc

then the work is not attempting to copy/imitate the original, it's providing something else entirely.

a) Something else entirely? Its entirely a derivative work that not only uses all the content of the original, but also which could not exist without the original.

b) That's why movies don't have to license the songs they use for the soundtrack, right? Because the movies not even about the song. Its something else entirely, and any song could be used in the background; its not even dependant on that particular song because its just, you know, playing the background. Oh wait, they do actually have to license them, even then.

Re:Not going to help them

[JMJimmy]

Music recordings have their own set of rules which are more restrictive

copyright exempt?

[TitusGroan8856]

Aren't walkthroughs a type of review? If so then they're fair use under american copyright law aren't they? Give the ad revenue back to the person that put in the effort to record and post the video.

Re:copyright exempt?

[Anonymous Coward]

No, they're not a type of review. A review wouldn't have to contain all THAT much footage from the game.

These are people that play an entire game, start to finish, and babble commentary over top of it.

There's absolutely no way anyone can realistically claim an LP isn't a 'derivative work' under copyright. As such, the game's maker -could- have the videos pulled and sue their ass into oblivion.

LPs contain far too much footage of the games in question to count as fair use. A couple of minutes in a review is fine; hours and hours of start to finish video is not.

Re:copyright exempt?

[PoolOfThought]

I'm only commenting to bring your comment to light for those that browse with anonymous cowards hidden. I don't know if you're "right" because this isn't my area of expertise, but I will say the comment is very informative, if it is indeed accurate.

Re:copyright exempt?

[GoodNewsJimDotCom]

I always thought a video game play through is owned by the game player. Just like a video game guide is owned by the author. Is Nintendo going to tell people they can't stream on Twitch.tv now?

Re: copyright exempt?

[Anonymous Coward]

Ladies and gentlemen.. We have a corporate troll. Who do you work for? As no 'non-industry' person would type such laughable nonsense.

Re:copyright exempt?

[yincrash]

It's a shared copyright. All the art is very much owned by Nintendo. The addition of commentary adds an additional copyright owner of the commentator, but since the footage definitely is full of Nintendo copyrighted material, they could easily be within their rights to have it removed. Basically, they've given these playthrough video makers a choice, either give Nintendo all the ad revenue, or take down the video that contains their copyrighted material.

Re:copyright exempt?

[yincrash]

You could also argue that all the actions that the player does is copyrighted by the player, but Nintendo still has a large stake in the copyright of the final product.

Re:copyright exempt?

[Anonymous Coward]

IINAL but I was under the impression that you never had the full legal right to stream games and such. It would just be silly to prosecute someone for this.

Re:copyright exempt?

[Anonymous Coward]

If it is actually a shared copyright, could they sue Nintendo for theft of revenue? Nintendo made the game. Nintendo didn't make the video.

Re:copyright exempt?

[Baloroth]

There's absolutely no way anyone can realistically claim an LP isn't a 'derivative work' under copyright. As such, the game's maker -could- have the videos pulled and sue their ass into oblivion.

LPs contain far too much footage of the games in question to count as fair use. A couple of minutes in a review is fine; hours and hours of start to finish video is not.

The amount of footage isn't really relevant here. It's patently ridiculous to argue that a video recording of someone playing a game is anything remotely close to the experience of playing that game (i.e. the LP videos are not the game itself). A video recording of a movie is that movie, but a video recording of a game is not the game. Therefore it's not at all clear that a LP video would not be fair use, since the presentation is highly transformative (since the experience of playing the game and watching someone else play it are completely 100% different). To quote Judge Pierre N. Leval (as used by the SCOTUS in their explanation of fair use):

The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. ...[If] the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

I would say that LP videos fit that understanding exactly. Standard disclaimer: IANAL.

Oh, and this is incredibly and unarguably a stupid decision on Nintendo's part. That much is certain.

Re:copyright exempt?

[idontgno]

So, MST3K was a huge lucrative ongoing copyright violation?

Actually, I guess this non-car non-pizza analogy points out an interesting difference. I'm certain that MST3K's producers made fully sure that the rights to play the movie in syndication were fully paid up, no different than your local TV station showing the "Early Saturday Afternoon Matinee" show... they just did something interesting over it (riffing, goofing off, faux shell story surrounding the movie bits).

This makes the current "Let's play" YouTube case different in a couple of ways: it turns out that the "original" content (the Nintendo-provided bits) are actually BETTER than the "overlaid" content, which is usually either painfully or awkwardly antisocial, and MST3K was able to play and pay within the system, whereas the LPers haven't.

Re:copyright exempt?

[tmosley]

Ri~ight, so extensive and in-depth reviews, like those made by Redlettermedia (Mr. Plinkett's Reviews) aren't reviews either, I guess? They are often longer than the movie he is reviewing, and clearly take a lot of effort to make. More germane to this particular article, Angry Video Game Nerd would probably be pretty pissed at this.

Looks like bullshit. Feels like bullshit. Smells like bullshit. Tastes like bullshit. Oh yeah, diarrhea dump in the ear confirms that it sounds like bullshit too. 5/5.

Re:copyright exempt?

[Anonymous Coward]

What if I demand nintendo to remove their gameplay footage from under my review?

Re:copyright exempt?

[Kielistic]

I can assure you the development company owns the copyright on the story and not just the game as you shoehorn it to be. I wouldn't really call playing the game as it was intended to be played a "transformation".

But I completely agree about this being a stupid decision on their part. Even if I think the law gives them the "right" to do this.

Re:copyright exempt?

[Anonymous Coward]

They (the LPers) are PROFITING off of it. That makes it pretty clearly NOT fair use.

Re:copyright exempt?

[Merk42]

Do Redlettermedia / Angry Video Game Nerd show the entire Movie / Game from start to finish?

Re:copyright exempt?

[steveha]

I'm certain that MST3K's producers made fully sure that the rights to play the movie in syndication were fully paid up

Yes, MST3K made sure they had a legal ability to do what they were doing. Cinematic Titanic continues this tradition. This is one reason why the movies they show tend to be bad: bad movies are cheap to license.

That's the brilliant part about Rifftrax. Since they are not redistributing the movie, they don't need rights. Thus they can do any movie they want, including Star Wars movies, Lord of the Rings, anything. They don't have to pay anything and they don't need to get permission first. (I don't think George Lucas would give permission to Rifftrax to mercilessly rip Episode 1...)

I'm just waiting for home Blu-Ray players to start offering an option to play an externally-downloaded audio track while playing a disc, or for AppleTV sort of products to do the same for general media files. There is no technical reason why this could not be done, and it would mean that when you pause the movie the Rifftrax pauses as well, much more convenient for the user.

Re:copyright exempt?

[cheesybagel]

There is a long history of game developers suing people who write walkthrough guides as infringing their copyright and failing.

Re:copyright exempt?

[Anonymous Coward]

Nope, they have the option to take down their video or hand over the ad revenue. Think of it as the terms of the licencing agreement.

Re:copyright exempt?

[Anonymous Coward]

A video recording of a movie is that movie, but a video recording of a game is not the game. Therefore it's not at all clear that a LP video would not be fair use, since the presentation is highly transformative (since the experience of playing the game and watching someone else play it are completely 100% different).

there's two flaws with that argument that immediately come to mind:

1) Cutscenes / Dialog. These for the most part will not change. As such they represent more of a "movie"type presentation and can therefore be afforded the same protections as a movie. Otherwise people would be able to make a video recording of a movie as long as it was a dvd / blu-ray, as the choices the consumer "selected" at the menu may be different to that of another consumer.

2) Current state of video games. I take it you haven't played many of the recent titles where the experience is in fact significantly linear to the point where watching someone else play through the game is almost exactly what you're going to experience if you were to play it. Otherwise, you could record a movie in the cinemas with a camera attached to you head and argue the same issue. Since the camera represents all you head movements, including adjusting your viewing position slightly, the recording won't represent the same experience as viewing the actual movie yourself.

personally i appreciate the LP videos and hope people continue to make them.
however where it breaks down is when people create them for "recent" titles.

Re:copyright exempt?

[RyoShin]

The amount of footage isn't really relevant here.

It's completely relevant here. U.S. Copyright Office - Fair Use:

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

1. The purpose and character of the use, including whether such use is of 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
4. The effect of the use upon the potential market for, or value of, the copyrighted work

(Emphasis Mine) It doesn't matter that it's video of someone playing instead of someone playing live. "The experience" doesn't matter; copyright is on the contents of the game, not on the enjoyment someone gets from said game.

Re:copyright exempt?

[Kielistic]

Not exactly the same thing and I doubt a judge would think so either. I guess we won't know unless it goes to court. Copyright laws are "good" that way.

Re:copyright exempt?

[phantomfive]

It would be fascinating to see such a legal theory tested in court.

There is no doubt that this is a derivative work, without the original game, the rest of the substance would be useless.
So the defense must be fair use. It sure seems transformative, the only question is whether that is enough, since there are other criteria to consider for fair use, besides transformativeness.

Re:copyright exempt?

[Anonymous Coward]

I would argue that the majority of the game is the actual gameplay and not the story.
Remove the story from Zelda or SMB1 and you still have pretty much the same game. Remove the gameplay and you have a very bad story that barely is coherent.
With regards to your bolded part video footage of a full playthrough is not a large amount of the copyrighted work as a whole.

Re:copyright exempt?

[JMJimmy]

earning revenue != profiting. I guarantee you the revenue to cost of production is always a money looser. A single playthrough of some games can take 100+ hours to play (even if that's not what ends up on the video) and they likely won't make minimum wage for 1 hour of video let alone 100.

Re:copyright exempt?

[JMJimmy]

Indeed. It would also be interesting to see the implications for other videos like http://www.youtube.com/watch?v=pf408Rkc5IA - is any software's visual interface now subject to copyright? Then what about http://www.youtube.com/watch?v=cFyb1VrlelQ - does merely an image of a copyrighted design (the design on the laminate) require permission to use? It's really endless.

Re:copyright exempt?

[Anonymous Coward]

Possibly under the guise of dubbing for a foreign language??? It could work...

Re:copyright exempt?

[VortexCortex]

The output of playing a game is the video. That gameplay was created by a human, and rendered by a machine. If anything the copyright should belong to the player since they're the one transforming it into an entertaining video. Go watch Red Vs Blue, then tell me that Microsoft should be able to get a cut of their revenue because they made their comedy inside a virtual setting.

Re:copyright exempt?

[Keen Anthony]

As a huge fan of MST3K, I think their diligence is what's kept us fans from getting a complete MST3K DVD collection. There's a lot of separate licenses to work out and some of the original film makers weren't happy having their movies laughed at. I think Rifftrax is also doing some licensing as well. I distinctly remember getting the riff track for Twilight immediately after the DVD was released, which sort of implies that maybe they at least got to view a screener.

Re:copyright exempt?

[Pubstar]

AVGN now has a few full play through videos up. Other than that, majority of his videos add more content than a LP

Re:copyright exempt?

[cheekyjohnson]

Let this be a lesson to people who think that copyright isn't absolutely ridiculous. I can't believe anyone here would seriously defend Nintendo. No... I can.

Re:copyright exempt?

[hexagonc]

The difference, though, is that games are fundamentally different from the type of works that Congress had in mind when they wrote those rules. As was mentioned before, footage of a tv show within a movie presents pretty much the entirety of the show. In contrast, a video game presents to the player a very large number of options when playing. The amount of "work" involved is essentially infinite, meaning that the "portion used in relation to the copyrighted work as a whole" approaches zero for a particular gameplay video. A person doing a "let's play" only shows a single path through the decision-tree of playing the game (minus fail restarts). The choice of that path is itself the creative part in making the "let's play", in addition to the commentary.

Re:copyright exempt?

[Bogtha]

There's absolutely no way anyone can realistically claim an LP isn't a 'derivative work' under copyright

He didn't say that it wasn't a derivative work, he said it was fair use. The two are not mutually exclusive, in fact most instances of fair use are derivative works. Fair use means that you can copy a copyrighted work legally, not that it isn't copyrighted.

Re:copyright exempt?

[Anonymous Coward]

I'm sure they could have done it without a screener, but I wouldn't doubt that they got one if the marketing department is at all intelligent. Ask a teen-to-middle aged male if he's interested in watching the Twilight Saga, and you'll only remind him that he has to comment 'Still a better love story than Twilight' on a youtube video of a woman being decapitated in a highway accident. Ask them if they want to see the MST3K crew ripping on the Twilight Saga, and they'll probably be a lot more inclined to buy a digital copy. The marketing department isn't stupid, they know what most people think about Twilight, and they know a sale is a sale.

Re:copyright exempt?

[Bogtha]

No, profiting does not inherently make something not fair use. For example, if I write a game review for a magazine and take screenshots, that magazine can be sold for a profit regardless of the fact that the screenshots are derivative works of something I don't hold the copyright to. The fact that the magazine is sold for profit doesn't stop the use of those screenshots from being fair use.

Re:copyright exempt?

[RyoShin]

The difference, though, is that games are fundamentally different from the type of works that Congress had in mind when they wrote those rules.

"They couldn't have known" is an extremely dangerous (and wrong!) line of thinking. It's the same way people are trying to gut the first, fourth, and fifth amendments with statements like "the Founding Fathers couldn't have known about the Internet, so it doesn't count" and the second with "how could they possible conceive handguns and rifles when they wrote it?"

And for most games, no, you don't have a large number of options, especially popular ones like Call of Duty.

Re:copyright exempt?

[hexagonc]

"They couldn't have known" means that the law is likely to be misapplied. And why not? Anybody who codes or has made a rules based system knows of unintended consequences of any set of laws.

Of course, you have a large number of options with most games. By construction, there are a relatively small number of correct and enjoyable ways to play a game and a much larger number of incorrect ways that lead to failure. I don't understand how this is even debatable. Are you saying that anybody can just pick up a game controller and everything to be seen and experienced in the game would just play itself out? In fact, what I have just described would be very much like a movie or a book. In that case, I agree, gameplay videos in this case would be some kind of infringement.

Re:copyright exempt?

[Anonymous Coward]

some of the original film makers weren't happy having their movies laughed at.

Cinematic Titanic's first movie, they cut a deal where they changed the name of the movie.

From Wikipedia:

Both the private show and the first release feature the B-movie Brain of Blood.[6] One of the original film's producers, concerned that creating multiple versions of the film could create marketplace confusion, requested that Cinematic Titanic's version have a different name. To alleviate his concerns, Cinematic Titanic retitled their release The Oozing Skull.[9]

http://en.wikipedia.org/wiki/Cinematic_Titanic#Release_history

Reminder, all ads are evil

[i kan reed]

Please adblock the hell out of everything. No one deserves money for letting somone mind control you.

Re:Reminder, all ads are evil

[Anonymous Coward]

I didn't realise what a horrible place the un-ad-blocked Internet was until I tried web browsing on an Android tablet recently. It was slow as hell, and I thought it must be due to the crappy ARM CPU until I noticed the animated ads all over the place.

Re:Reminder, all ads are evil

[TitusGroan8856]

simples...

Re:Reminder, all ads are evil

[Anonymous Coward]

May I recommend an app?
http://f-droid.org/repository/browse/?fdid=org.adaway

Re:Reminder, all ads are evil

[i kan reed]

You can get adblock for firefox on the android. I hate firefox on android in terms of UI, but adblock is a necessity.

Re:Reminder, all ads are evil

[93 Escort Wagon]

Please adblock the hell out of everything. No one deserves money for letting somone mind control you.

So I assume you're on Microsoft's side, not Google's, when it comes to the YouTube app on the Surface?

Re:Reminder, all ads are evil

[PoolOfThought]

Tired of people mind controlling you via advertisements? Well, just click right here and buy our magic mind control blocker for just $14.95.

Re:Reminder, all ads are evil

[ArcadeMan]

It was slow as hell, and I thought it must be due to the crappy ARM CPU until I noticed the animated ads all over the place.

Remember, unlike the iPad, Android can run Flash!

Enjoy!

Re:Reminder, all ads are evil

[dicobalt]

True, I did an experiment with my old netbook where I checked Firefox cpu usage with 4 tabs open. When ABP was on the cpu usage was around 4%. When ABP was off, CPU usage was around 40-60%.

Re:Reminder, all ads are evil

[spire3661]

Please show me a link on how to install Flash on my stock Nexus 7. No sideloading, rooting or unlocking allowed.

Re:Reminder, all ads are evil

[Anonymous Coward]

Enjoy your web behind a paywall, or are you just an entitled baby?

Re:Reminder, all ads are evil

[Anonymous Coward]

Please go screw yourself?

Sideload it if you want it, it is available and android will run it, therefore the parents post is accurate.

Re:Reminder, all ads are evil

[i kan reed]

Honestly, I don't care. Who buys a surface anyways?

Re:Reminder, all ads are evil

[jedidiah]

> No sideloading

Why no side loading? All I have to do to side load on my Android device is to download/copy the file to it and run it. It's exactly like a PC.

Re:Reminder, all ads are evil

[spire3661]

Because you cant sideload on an ipad, the item he was making a comparison to.

Re: Reminder, all ads are evil

[Anonymous Coward]

No it doesn't

Re:Reminder, all ads are evil

[Anonymous Coward]

Which is why it can't run flash (and many other things).
What did you expect? "Prove to me your product is superior, but don't use any features mine doesn't have!"?

Re:Reminder, all ads are evil

[Anonymous Coward]

Blocking ads is a dumbass move.

1) You're completely leeching off other people's work without any of the compensation. You're no better than a common thief.

2) Ad blocking is going to be an arms race that I guarantee you will lose. Eventually, all ads are going to be indistinguishable from content and then we're all fucked. You think ads are annoying and intrusive now? Just wait until you're forced to browse all content through secure plugins that don't let you strip ads.

3) If the above for some reason doesn't succeed (and I see no reason it won't), then sites will start charging for everything. Have fun paying $5/mo for every site you want to visit.

Ad blocking is going to completely ruin the internet, and douchebags like you are causing it.

Re:Reminder, all ads are evil

[Anonymous Coward]

Which is crazy:

"Compare my Citroen C5 with that Ferrari over there - but you can't accelerate faster than 0-60 in 15s and you can't go above 100mph - because, well - my Citroen can't and that would be an unfair comparison"

When making a comparison between an item that can't do something and an item that can - you're not allowed to fudge the tests just to fit your world view. Well you ARE allowed to - but don't expect anyone to take you seriously.

Re:Reminder, all ads are evil

[LinuxIsGarbage]

I assume the Netbook probably had an Atom with hyper threading, thus two virtual cores, and Flash was probably pegging one of the cores.

Re:Reminder, all ads are evil

[cheekyjohnson]

1) You're completely leeching off other people's work without any of the compensation. You're no better than a common thief.

Right, because blocking certain things on a web page on the open Internet is no different than stealing someone's physical property.

2) Ad blocking is going to be an arms race that I guarantee you will lose. Eventually, all ads are going to be indistinguishable from content and then we're all fucked.

Then I doubt people who hate ads would go to those websites if such a ridiculous thing ever happened.

Ad blocking is going to completely ruin the internet, and douchebags like you are causing it.

It's the apocalypse! Run for the hills!

Re:Reminder, all ads are evil

[Anonymous Coward]

Thank you kind sir!

Re:Reminder, all ads are evil

[Cederic]

Ad blocking is going to completely ruin the internet, and douchebags like you are causing it.

The internet was doing just fine before cunts starting flooding its bandwidth with adverts. But hey, thanks for subsidising the running costs of some of the services I use.

Desperate times?

[Anonymous Coward]

The sign of a company that's running out of money and has limited sales.

Can PRS claim copyright to what I play on one of their guitars too?

Re:Desperate times?

[flimflammer]

The sign of a company that's running out of money and has limited sales.

Haha, no.

Re:Desperate times?

[mattventura]

It's not a sign of them running out of money. It's business as usual. Just because a company has X amount of money doesn't mean they don't want to make more. Companies would ALWAYS like to make more money.
Besides, I'm 99% certain Nintendo isn't the first company to do this. I recall hearing about some of the scummier game companies doing this.

Their Game, Their Content

[Myu]

Hardly seems objectionable that they might take what's owed them for the work that they put in to actually make the content that people are profiting from. Hey, it's a massive improvement on the music industry: No, we're not going to sue you or other people who use what you've made publically available, or even take your material down; we'll just take the advertising money you'll earn from this point on..

Re:Their Game, Their Content

[kawabago]

The videos are about people playing a game, not the game itself. That is a transformational use and thus a fair use. Nintendo is stealing from their own customers, plain and simple.

Re:Their Game, Their Content

[fuzzyfuzzyfungus]

The videos are about people playing a game, not the game itself. That is a transformational use and thus a fair use. Nintendo is stealing from their own customers, plain and simple.

The other issue(aside from whether Nintendo has a right under law to do this or not) is whether Nintendo is being a load of idiots by doing this...

If a video of somebody playing a game is a good, or even adequate, substitute for that game, I think that it's fair to say that the game must really suck, badly. If it isn't a good substitute for the game, then "Let's Play" videos are likely to be free advertising for Nintendo, produced by enthusiasts. Given Nintendo's, um, totally commanding lead in the next-gen console area, maybe they shouldn't be turning that down, no?

Re:Their Game, Their Content

[CanHasDIY]

Hardly seems objectionable that they might take what's owed them for the work that they put in to actually make the content

Uh, yea, pretty sure that happened when the people in question bought the game from a retailer.

I can see no legitimate defense for Nintendo here.

Re:Their Game, Their Content

[Myu]

When you buy a CD, you don't also buy the rights to use the music on that CD as the soundtrack for that movie you're making for general distribution. The scenarios seem parallel to me.

Re:Their Game, Their Content

[CanHasDIY]

When you buy a CD, you don't also buy the rights to use the music on that CD as the soundtrack for that movie you're making for general distribution. The scenarios seem parallel to me.

But do I have the right to make my own covers of the songs on the CD? Because that's a much more accurate analogy for this situation.

Re:Their Game, Their Content

[OhPlz]

The videos are about people playing a game, not the game itself. That is a transformational use and thus a fair use. Nintendo is stealing from their own customers, plain and simple.

What if I post a video of me watching a movie? It's not about the movie.. it's about me watching the movie.

We're looking for a fine line in what's really a grey area. I can easily see both points of view.

Re:Their Game, Their Content

[Anonymous Coward]

No you don't.

The composer and author of the lyrics are not necessarily the same as the performer a good example is Jerry Leiber and Mike Stoller. If you don't know who they are, it shows just how little you know about music.

Re:Their Game, Their Content

[gl4ss]

The videos are about people playing a game, not the game itself. That is a transformational use and thus a fair use. Nintendo is stealing from their own customers, plain and simple.

What if I post a video of me watching a movie? It's not about the movie.. it's about me watching the movie.

We're looking for a fine line in what's really a grey area. I can easily see both points of view.

if you film yourself watching the movie, it's fair game.
if you just post the movie, it's the same thing as the movie.

however, the nintendo game doesn't play out on it's own, the player input changes is.

I guess the ultimate of that is saying that if you make a tutorial video for autocad, would it be just to say that you lose rights to said video, because all the content "was" already in the program you're making the tutorial out of.. or even further, does adobe own copyright for everything edited with their sw..

Re:Their Game, Their Content

[Anonymous Coward]

True, but the copyright holder on the CD doesn't have rights over your movie either. In fact the copyright on the movie is entirely in the hands of the movie maker, at best the movie maker has to pay some licensing fee to use the music from the CD in the movie, there is NO way that it is the 'total revenue' from the movie since that would assert the holder of the copyright in the CD has copyright ownership of the movie & that of course is ludicrous.

So, we must conclude the LP video makers hold entire copyright over the LP videos they make BUT to release them & especially to make money from them they would have to get a license from Nintendo to use their content. Equally though Nintendo can NOT just come in and scoop up all Ad Revenue from the LP video, otherwise they are asserting that they are the copyright owner of the LP video rather than just the game content in the LP Video.

Re:Their Game, Their Content

[Wookact]

What if I post a video of me watching a movie? It's not about the movie.. it's about me watching the movie.

You must be thinking of MST3K.

You know the show where they sit there and mock a movie, while showing you the entire movie. Analogy fail.

Re:Their Game, Their Content

[OhPlz]

I guess the ultimate of that is saying that if you make a tutorial video for autocad, would it be just to say that you lose rights to said video, because all the content "was" already in the program you're making the tutorial out of.. or even further, does adobe own copyright for everything edited with their sw..

Autocad and Adobe-Whatever exist to create original content. Can you really say that of a game? The game's content is already set. The player may expose different parts of it and in different order, but the content is still just the content. The player isn't really "creating" anything.

Like I said, grey area. Even the movie watching analogy, I get the MST3K example. Yet, if I just sat there and didn't say a single thing the whole time the movie played, is that a valid derivative work? No.. but what if I coughed once or twice? Where's the fine line?

Re:Their Game, Their Content

[trims]

You (and the +5 poster a thread or two up) misunderstand "transformative" use.

The proper analogy to video gameplay has already been decided on by the courts, and it is written plays (which, also applies to screenwriting).

All three take another work, and produce an interpretation of that work. The original playwright/screenwriter/videogame author still is the owner of the base copyright being used, and the work is classified as a Derivative Work. The performer has also contributed significant copyrightable-product, but the genesis and base of the entire (new) work still rests on the original play/screenplay/game.

Also, just because something is "transformative" doesn't absolve it of the requirements to be of "limited" domain. Using the entirety of a video game (artwork included) in your new LP video is pretty much the definition of "not limited".

Re:Their Game, Their Content

[Anonymous Coward]

Not if you going to distribute and sell those cover versions.

Even just performing those cover songs live in front of an audience (nor recording, no distribution) requires yet another kind of license.

Re:Their Game, Their Content

[Anonymous Coward]

"Autocad and Adobe-Whatever exist to create original content. Can you really say that of a game?"

YES.

Unless the game is already defined in its entirety, the game I play will be different from YOUR game. So, YES, the gameplay exists to create original content: YOUR PLAYING OF IT.

Re:Their Game, Their Content

[Dodgy G33za]

Depends on the game. Compare Minecraft LPs from Paul Soares and Ethos. They are completely different. The same would be true of any LP for any free world or RPG game, and would also apply to strategy videos for FPS.

The same can't be said for most platform games, or other games on rails though.

Re:Their Game, Their Content

[Anonymous Coward]

Speaking of fail, you forgot to mention the part where they license those movies.

Re:Their Game, Their Content

[hexagonc]

But an LP doesn't include the entirety of the video game. In order to do that, the player would have to show every possible way of playing the game. Instead, what makes an LP interesting is the particular path through the content decision tree that the player took. This is what makes all the difference in the world. Otherwise, people wouldn't even buy games to play; they would just look at the static artwork and read the plot as text.

Re:Their Game, Their Content

[MrL0G1C]

the work is classified as a Derivative Work.

So the gamers should get the lions share of the advertising revenue / Nintendo have fraudulently taken the gamers share(?).

Re:Their Game, Their Content

[Sparton]

If a video of somebody playing a game is a good, or even adequate, substitute for that game, I think that it's fair to say that the game must really suck, badly.

Some games aren't trying to be good games, or at the very least aren't defined by good gameplay. The Uncharted series is a good example; a lot of people don't care about the gameplay, but the story (and it's execution while playing) is considering quite enjoyable. Watching a video of a game will never be a perfect substitute for playing it, but it can be good enough for some people, and that shouldn't speak poorly of the game itself if it's trying to be entertainment outside of just being game-y.

So many questions...

[spamchang]

So were the original video posters receiving revenue already? Hard to tell from the article diction.

"Until their claims are straightened out, I won't be playing their games," he continued. "I won't because it jeopardises my channel's copyright standing and the livelihood of all LP-ers."

Livelihood? Really?

Re:So many questions...

[i kan reed]

Yes, some people actually make money off playing games and putting that on the internet. They are also almost exclusively the worst, least interesting LPers in the universe. I wish the idea for let's plays never got out.

Re:So many questions...

[mdmkolbe]

Livelihood? Really?

Yes, really. The particularly popular LP-ers make their entire living off of the videos they produce.

That might sound strange at first, but some of the best LP-ers are something of a cross between comedians and critics. Both of these are jobs that we are accustomed to seeing making a living off of their work. A good LP-er doesn't just play the game, their value is in their commentary and jokes as they play the game.

Re:So many questions...

[Anonymous Coward]

For me I instantly turn off the audio on *all* of these videos. I want to see how to get past some spot. Not to listen to you wheeze on about how awful/good something is. The weirder ones are the ones who make sound effects along with the game... Or instead of showing how to play the game it is a showoff fest of how they can speedrun a level.

Re:So many questions...

[i kan reed]

The sad thing is the Let's Plays originated as a kind of fun art form. Then Youtube got ahold of the concept, and turned it into the shittiest laziest kind of "creative work" I've ever seen.

Re:So many questions...

[Anonymous Coward]

So were the original video posters receiving revenue already? Hard to tell from the article diction.

"Until their claims are straightened out, I won't be playing their games," he continued. "I won't because it jeopardises my channel's copyright standing and the livelihood of all LP-ers."

Livelihood? Really?

Yes, look up Chimney Swift, IhasCupQuake there are many others. My 7 year old son watches these all the time.

MinecraftMojang had a meeting with google/youtube and was presented with the very same offer. The turned them down. Kudos to them. Pretty pissed off I am the owner of 2 Wii U's right mow. This is only going to make things harder for Nintendo. Hopefully the Wii U will be more Gamecube than Dreamcast.

Re:So many questions...

[steveha]

A good LP-er doesn't just play the game, their value is in their commentary and jokes as they play the game.

I've never heard of this, but I believe you. My favorite podcast, Spilled Milk, is really funny and I think those guys would be just as funny if they stopped talking about food and started talking about some other topic.

Would you please post a link or two with some of your favorite "episodes" of LP?

Re:So many questions...

[CanHasDIY]

Would you please post a link or two with some of your favorite "episodes" of LP?

Just punch Yogscast into the Youtube search box.

Those guys crack me up.

Re:So many questions...

[flimflammer]

Art form? There was nothing particularly artistic about lets plays on the something awful forums.

Re:So many questions...

[Intrepid imaginaut]

I find that hard to credit, Youtube pays out SFA unless you're routinely getting millions of views. Beer and pizza money I could believe.

Re:So many questions...

[mdmkolbe]

It probably depends on what you are into. Also, keep in mind some of why I enjoy these may have to do with me not having enough time to play games myself, but having time to watch an LP.

• Giant Bomb's Quick Look of "Digital Combat Simulator: A-10C Warthog"
• Beagle Rush's XCOM: Ironman Impossible Series
• Videos by CHKilroy such as this one or this one.
• Videos by NerdCubed such as this one or this one.
• The WTF Is... series by Total Biscuit

Re:So many questions...

[Anonymous Coward]

AaaaaaaaaaaaAAAAaaaaaaaaaaaah!

It hurts my ears when he says it, but it is always pretty funny.

Re:So many questions...

[Dodgy G33za]

Ethos (EthosLab) who does Minecraft videos stated on his channel that he makes more money though youtube than he does on his day job. He does put up a video a day (and gets 250k+ views), which would probably equate to 4 hours work a day.

Re:So many questions...

[Anonymous Coward]

It really depends on the person. I got into watching Minecraft videos thanks to wanting to see what custom maps were like (hint they are really awesome) and ended up watching videos from a few of the people from the Mindcrack server.

I watch these things for the people more than the game they are playing most of the time and it's a damn shame that Youtube not only will not stand up for these content creators right but does the opposite and lets any old mook steal their add revenue. There are companies that go around making claims on older videos just to get the ad revenue transferred to them despite not owning any part of the video. Youtube does not check these things.

Also I think Yogscast as a whole is like the 14th most watched Youtube channel and that's a bunch of people that play games and do commentary.

An LP, specially with commentary, IS original content. This is copyright infringement by Nintendo.

Re:So many questions...

[Anonymous Coward]

Youtube IS Ethos job. And depending on the video it's a lot more than 4 hours of work. The Mindcrack people actually play Minecraft, they don't just use creative mode to set up for some skit.

A number of other Mindcrack people are full time Youtube Content Creators as well. They seem to do so well I've even considered doing just in the hopes of getting the pizza/beer money you mention since I'm usually playing something in my spare time anyway. Being interesting for a 30 min video is a whole different ball of wax though heh.

Re:So many questions...

[wikdwarlock]

You cannot possibly leave off the list HCBaily, who is, I dare say, the most prolific LP'er in the universe. He does JRPGs, and is really damned good at it. He's funny, quirky, and deeply knowledgeable about the games he plays, and the genre as a whole. He has something like 10,000 videos and 57 million video views.

As far as I know, he doesn't do advertising or paid LPs.

That's not even Orwellian . . .

[Anonymous Coward]

Just backwards.

Seriously? As part of Nintendo's "on-going push to ensure Nintendo content is shared across social media," it is doing something to discourage people from sharing their experience of Nintendo content on a social media platform? Genius.

Re:That's not even Orwellian . . .

[idontgno]

In a way, yes. You didn't parse it right.

The phrase means "on-going push to ensure Nintendo-owned intellectual property content is shared across social media instead of these opportunist copyright-violating scoundrels'."

Dey own teh Intarwebz. Just ask 'em.

Right of first sale

[Joe_Dragon]

Right of first sale

Re:Right of first sale

[i kan reed]

Right of first sale...

...is completely irrelevant to making derivative works and distributing those.

That's what you were going to say before you hit preview then submit too early, right?

Re:Right of first sale

[jandrese]

I think he meant to say Doctrine of Fair Use.

Also, these are derivative works in most cases. They're not just putting FMV segments up, they're playing the game, adding content (commentaries for instance), and are getting stolen from just as much as Nintendo was previously. This would be like a cover band being required to pay all of their income to the original bands. Some sort of revenue sharing agreement is clearly needed.

Re:Right of first sale

[i kan reed]

Fair use for LPs:

Academic: Hell no
Parody: Nope, except in the rarest of cases
Commercial nature or is for nonprofit: quite clearly commercial
The amount and substantiality of the portion used in relation to the copyrighted work as a whole: usually they play through the whole game.
The effect of the use upon the potential market for or value of the copyrighted work: Possibly detrimental

I don't see any path for fair use in there. It doesn't really meet any of the requirements.

Re:Right of first sale

[Anonymous Coward]

LPs have way too much of the original game in them to count as fair use.

Fair use would be some clips in a review. These things are more like a game version of Mystery Science Theater 3000.

Re: cover bands - music actually has special rules for this. It's called a 'compulsory license' and the rate for using it is REALLY high. (Which is why anyone with any sense negotiates a better license to use a song when they cover it.) But it basically means anyone can legally cover any song, as long as certain notification rules are met and they pay that very high license fee.

Probably the smart thing to do would be for Nintendo to offer a license agreement for their games in LPs, with some form of revenue sharing.

Re:Right of first sale

[Antipater]

The effect of the use upon the potential market for or value of the copyrighted work: Possibly detrimental

Possibly detrimental, possibly beneficial. Watching a playthrough could make a viewer say "ew, that game looks terrible" or "hey, I want to try that!" I don't see how you can make a deterministic statement either way. Your other points are accurate, though.

Re:Right of first sale

[sexconker]

The effect of the use upon the potential market for or value of the copyrighted work: Possibly detrimental

Possibly detrimental, possibly beneficial. Watching a playthrough could make a viewer say "ew, that game looks terrible" or "hey, I want to try that!" I don't see how you can make a deterministic statement either way. Your other points are accurate, though.

There's the additional "I've already seen the whole thing, why would I buy it now?".
Personally I've watched, instead of played, plenty of games in the last few years.

Re:Right of first sale

[Joe_Dragon]

Probably the smart thing to do would be for Nintendo to offer a license agreement for their games in LPs, with some form of revenue sharing.

more like we will give you free games and you get to review them* and we keep all ad income.

* Nintendo has final creative control and with some games we want you to only give a good review of.

Re:Right of first sale

[jedidiah]

No. The smart thing for Nintendo to do is to not act like Monty Burns. Don't be a douche for no good reason. Sooner or later you'll stumble upon something that actually alienates large numbers of your users.

Re:Right of first sale

[Nyder]

Fair use for LPs:

Academic: Hell no

Actually that is a yes. If someone is playing thru the whole game, they are teaching you.

A section you are stuck on? You can fast forward it, see how it's done, then do it yourself. In fact, this is the modern version of a walkthru. Instead of a text document, you got a video of it.

So yes, it could be argued that it's Academic.

Re:Right of first sale

[Anonymous Coward]

The amount and substantiality of the portion used in relation to the copyrighted work as a whole: usually they play through the whole game.

But they never hand over the control to you.
The primary part of any game is the gameplay (Unless we are talking about computerized visual novels.)
Remove the gameplay form SMB1 and you get nonsense. Remove the story from SMB1 and you still have pretty much the same game.
Had it been a move then one could have argued that it was a substantial amount of the work that was redistributed but a computer game is a completely different beast.

Re:Right of first sale

[Anonymous Coward]

Yes, LPs killed Minecraft, Happy Wheels, Amnesia, Surgery Simulator 2013, Papers Please, and whatever flavor of the month is currently the subject of hundreds of videos being uploaded daily. They should just kill all LPs, making sure no one with hundreds of thousands of subscribers can show off any game and make it look incredibly fun.

Really.

[Anonymous Coward]

So how is this not a copyright violation?

Re:Really.

[Hsien-Ko]

SEGA does what Nintendon't - complete copyright takedowns of gameplay videos.

This is really sensationalism, all of this could have been prevented if there weren't so many naive LPers that click "YES!" on Youtube's random video monetization offers.

I will do that for the Gangnam style video

[lemou]

And use the Content ID to steal their revenue :)

Nintendo's Right, but being Jerks about it...

[trims]

I've looked at a couple of those videos, and the amount of content which is copyrightable Nintendo (or whomever the on-screen game author is) is WAAAAAY beyond anything allowable for Fair Use or similar exception.

I'm certainly not in favor of Nintendo or the like suing these folks for copyright infringement. The "unique performance" issue is certainly one which can be discussed, but I liken this to plays - sure, the individual performance of a play is unique, but since you didn't write the script, you can't expect to be profiting from the performance without the author's permission.

Thus, I can't see why the authors of these videos are complaining that Nintendo gets the ad revenue. I think that's an entirely reasonable compromise - Nintendo essentially implicitly licenses the video authors to show those derivative-work videos, in return for the publicity and the ad revenue.

Nintendo, of course, could be much less tone-deaf about saying the preceding, of course.

But, in the end, those videos are derivative-works under copyright law, and they can't be shown without some sort of license.

Re:Nintendo's Right, but being Jerks about it...

[MrDoh!]

Was happy to hear Notch, contacted by Youtube to do the same thing, said no.

Re:Nintendo's Right, but being Jerks about it...

[Anonymous Coward]

On the other hand, these play-throughs often advertise a company's games for them merely by existing and being watched. In terms of advertising, Nintendo might better serve themselves by leaving these players with the (relatively little) monetary incentive to make the play-throughs that can help proliferate the popularity of a title. Which isn't to say these aren't derivative works, merely that Nintendo might have thrown away some free advertising.

Re:Nintendo's Right, but being Jerks about it...

[Anonymous Coward]

Um, Nintendo are fucking over their fans. Why don't other (less deep in the red I guess) console makers do the same shitty thing? Because it is a shitty thing to do: Nintendo sells the games, they do not rule over the actual playing of the game after it is sold. What next, should "30 Rock" be considered a derivate of the building the series references?

Re:Nintendo's Right, but being Jerks about it...

[Lanterns]

Notch has a lot more to gain from the goodwill of letting people share his games. He's a much smaller game developer than Nintendo and depends more on having the good graces of his fans. An Nintendo doesn't have much to lose. Most people won't see anything wrong Nintendo just soaks up the ad revenue from the video. It's a bit absurd that the people who make these videos think they can profit from the game.

Re:Nintendo's Right, but being Jerks about it...

[Anonymous Coward]

sure, the individual performance of a play is unique, but since you didn't write the script, you can't expect to be profiting from the performance without the author's permission.

And neither can the author profit from the performance without giving anything to the performers, unless they agree to that. All to performers might be wrong, but all to author is certainly wrong, too.

Re:Nintendo's Right, but being Jerks about it...

[flimflammer]

He didn't argue that point. The point he was making was that Nintendo is in the right legally; not morally.

Nintendo's statement is ass-backwards. Their response reads as if it's making them out to be the good guys, saying "Unlike others, we're not just taking it down" but they're talking about groups like the **AA, rather than groups in their own form of media: video games. No other game developer sans a weird slip up by Sega does this sort of thing. So really, Nintendo are worse than just about every other game developer/publisher regarding lets plays, presently.

Re:Nintendo's Right, but being Jerks about it...

[mattventura]

The LPers put work into their videos. Nintendo made the game and sold it for profit (not to mention free publicity from videos). So previously, Nintendo and the video producer both put some effort into it, and were both rewarded. Now the LPers not only had to pay for the game, but had to produce the video and are now getting zero revenue out of it. Nintendo just wants to have their cake and eat it too.

Re:Nintendo's Right, but being Jerks about it...

[Solandri]

but I liken this to plays - sure, the individual performance of a play is unique, but since you didn't write the script, you can't expect to be profiting from the performance without the author's permission.

I think Nintendo is shooting themselves in the foot with this. These videos act like servo tab. They direct the airflow the opposite direction that you want it to go, but because of their mechanical leverage, they cause the main control surface to move, thus directing an even larger amount of airflow in the direction you want it to go. You give up a little to gain a lot. Prop aircraft and even some jet aircraft like the DC-9 use these on their flight control surfaces instead of hydraulics.

In the same way, these videos act as free advertisement for Nintendo. Yeah a little bit of advertising dollars go to the people who make the videos instead of to Nintendo, but the videos lead to increased sales allowing Nintendo to make a lot more money. If they siphon off the advertising dollars, the videos will stop being made, and Nintendo will lose what was essentially free advertising for them (I frequently watch gameplay videos to help decide if I want to buy a game).

So yeah legally they may have the right to do this. But financially they're being stupid by doing it.

Re:Nintendo's Right, but being Jerks about it...

[Anonymous Coward]

Pretty sure that Mojang explicitly allows LPs, as they use it for advertising.

And it works.

Re:Nintendo's Right, but being Jerks about it...

[Barlo_Mung_42]

Notch has more control and doesn't have to answer to share holders. It's overly cynical to say he did the right thing so he would look good to his fans.

Also, if they're spending time providing a useful service to people why shouldn't they be able to profit? It's a performance. The performer should get the money not the people who make the thing that is being preformed on.

Re:Nintendo's Right, but being Jerks about it...

[Anonymous Coward]

The Cake is a lie...

Re:Nintendo's Right, but being Jerks about it...

[Anonymous Coward]

not a fair comparison: Notch's MineCraft isn't a plot driven game. All of what appears on the screen (short of some low res textures) is either randomly generated or the result of player creation.

Re:Nintendo's Right, but being Jerks about it...

[Anonymous Coward]

semi:colon

Re:Nintendo's Right, but being Jerks about it...

[Anonymous Coward]

Good will has a value. If an action makes money in the short term but destroys the good will of your customers towards you and your products, you can just tell your shareholders you shouldn't be doing it.

Notch by his actions is generating good will towards himself and his product. That Nintendo is claiming these ad revenues for themselves, when it isn't entirely their work has certainly pissed me off. It would be fairer for Nintendo to either allow it on a non-profit basis or with a reasonable revenue split. Nintendo's actions could well cost them more than they make from this.

Re:Nintendo's Right, but being Jerks about it...

[Sedated2000]

Notch did tweet about it, saying he almost did it. I think if he had it would have been suicide for his company because everyone I know, myself included, found Minecraft through the LP videos. It would have been a lot of revenue though. For the folks who base their Youtube businesses off of the Minecraft success, they would have seen their income drop to nothing or near to it.

"Adverts will now appear ...

[OhSoLaMeow]

"Adverts will now appear at the beginning, next to or at the end of the clips," the company said.

How nice of Nintendo. At least it won't appear in the middle of the clip. I feel much better now.

obviously

[Anonymous Coward]

All your base are belong to us

-Nintendo

They should share.

[vovick]

Gameplay videos can be entertaining for their plot, dialogues and visuals even if the player says nothing and plays poorly. On the other hand, a good "letsplayer" can make it much more entertaining to watch and ultimately attract some buyers. They should realize that such a symbiosis is good for both of them. The developers should stop removing or taking all the ad revenue while letsplayers should share it with the developer.
Would be nice to see if Youtube allowed to share revenues between the content creators and the video makers/uploaders.

Re:They should share.

[Anonymous Coward]

Pretty sure the content creator and the video uploader are the same in this instance. Nintendo would be the content owner, but they sure as hell arent creating these videos.

Re:They should share.

[vovick]

I meant the original content creator which is the developer, while the video maker/uploader (i.e. derived content creator) is the letsplayer.

Content-maker, not tool-maker, owns content

[Anonymous Coward]

Nintendo's position that they own these videos, simply because their games were used in the making of these videos, is ridiculous and completely unsupportable.

In an analogous situation, if I record a screen capture of a demonstration of how to use a specific feature in Word, and post it to YouTube, Microsoft does NOT own my video simply because it owns Windows and Word. (The screen capture tool maker does not own my video either.)

The person who MAKES the video holds the copyright on the video, regardless of the tools used in the making of said video. It's that simple.

Re:Content-maker, not tool-maker, owns content

[CanHasDIY]

Nintendo's position that they own these videos, simply because their games were used in the making of these videos, is ridiculous and completely unsupportable.

In an analogous situation, if I record a screen capture of a demonstration of how to use a specific feature in Word, and post it to YouTube, Microsoft does NOT own my video simply because it owns Windows and Word. (The screen capture tool maker does not own my video either.)

The person who MAKES the video holds the copyright on the video, regardless of the tools used in the making of said video. It's that simple.

Kinda have to agree with this; Otherwise, Milwaukee, Stanley, Black & Decker, and Craftsman own all my furniture, since those are the brands of tools I used to make it.

Re:Content-maker, not tool-maker, owns content

[Anonymous Coward]

Citation needed.

ContentID - Youtube's Kryptonite

[Anonymous Coward]

This is only the latest in abuses of Google's automated copyright enforcement tool. Veteran LPers have left Youtube for other services. I myself have had my gameplay recordings removed or tagged with ads, and now I don't use Youtube to host the videos anymore.

Re:ContentID - Youtube's Kryptonite

[wonkey_monkey]

And I'm sure it hurts YouTube every day knowing you're not there.

Let them choose to go commercial free

[VinylRecords]

I don't mind if people post videos of a game that I've worked on for free. But if they are putting intrusive advertisements over my content then I want those videos taken down or the commercials removed. It's not the game play videos that are a problem. I play lots of games, I love using player videos for tutorials, in fact lots of games have a replay function directly built into them to help users share gameplay content and experiences.

But I don't think that too many artists want their work having fast food commercials and 'seen on tv' products plastered over their hard work. I don't see why 'fans' should be allowed to plaster commercials over your work. I don't see why YouTube should be allowed to plaster commercials over my work either. Go commercial free and you can do whatever you want. Tutorials, reviews, analysis, story summaries, detailed walkthroughs, tool assisted speedruns, and so on.

If the true fans want to play games and share their experiences with others then let them. That's great. No one should object to those videos. But when fans are plastering commercials over a video game it is not acceptable use in my opinion. I don't want anything I've done associated with some namebrand product. I don't want fans of mine watching someone play a game I worked on only to have some product pop up in the middle of my artwork. Remove the ads.

If you want to make a video of yourself playing a game for the social experience, for an education tutorial, or for a review, then go ahead. As long as you don't put commercials next to it. Want to put commercials next to it? Then contact the original artists and company and try to work out a deal. If they say no then respect their wishes.

Re:Let them choose to go commercial free

[Anonymous Coward]

You're such a tool: Do you also complain if 'your' game is featured on a gaming review website? With ads next to it?
Do you also complain if 'your' game is played on Twitch? With ads next to it?
Stop being such a tool.

Re:Let them choose to go commercial free

[Red_Chaos1]

Do the people who took the time to play through the game carefully and precisely to create such videos for people to learn from not deserve a bit of compensation for that time? You got your cut when the game was sold. Stop sniveling about the ads, it's the only means the people making these vids have of getting compensation for their time and effort. It's not the end of the world.

Re:Let them choose to go commercial free

[Anonymous Coward]

I posted a vid of Mortar use shortly after BF3 was released. I put it up with nothing to gain from it. No ads, nothing, just my play for a few friends. A went back to my channel a month or two ago and there was a notice that EA was claiming that the content was theirs and my video was "flagged". I don't remember the exact wording. Yes, it was a video of their content. No, there was no revenue to be made from it. The vid was outdated as they had fixed a few flaws with mortars that were present when the video was recorded. I went ahead and deleted the video as it was no longer useful to me.

No clue if they had put ads on it. It did not look like a statement of infringement. Nothing was sent to my email associated with the account regarding the "flag". Of my few videos I have put up*, that was the only one to receive something like that. Other vids were of BF:BC2, Portal, TF2, and COD:MW2.

Just my limited experience with the about a dozen vids I have put on Youtube over the years.

*My videos I want my friend to see are now viewable with a uri I send them in email.

Re:Let them choose to go commercial free

[happylight]

Your fans are not watching LPs. If they are the game's fans then they are playing the game themselves. People watch LPs for that specific person that they love. They are the LPer's fans, not yours. Your game is just a tool for the comedic effects.

If I made a home video of my family playing Scrabble and it becomes popular on YouTube, do you think Hasbro should be paid? No. People watch because my family is funny not because they want to watch someone play Scrabble.

Re:Let them choose to go commercial free

[Anonymous Coward]

Stop complaining, it's free advertisment for your game. And if the people who make their living by playing games don't have money for living, the videos will be of much lower quality and of no use to most people.

Re:Let them choose to go commercial free

[Anonymous Coward]

"Do the people who took the time to play through the game carefully and precisely to create such videos for people to learn from not deserve a bit of compensation for that time?"

Sheesh. Talk about cheesy business models...

No, we should not be all that surprised that it is difficult to make money playing video games.

Re:Let them choose to go commercial free

[Anonymous Coward]

Do the people who took the time to play through the game carefully and precisely to create such videos for people to learn from not deserve a bit of compensation for that time? You got your cut when the game was sold. Stop sniveling about the ads, it's the only means the people making these vids have of getting compensation for their time and effort. It's not the end of the world.

They have no right to profit off of the owner's copyrighted material. If they don't enjoy the game without turning a profit they shouldn't do lets plays. If they need a living wage they should go get a job like the rest of us.

Re:Let them choose to go commercial free

[VortexCortex]

Well, I make games, and If I saw my latest game on a review website with ads next to it, I'd be fucking pissed, because I haven't even finished it or released it yet! :-P

Re:Let them choose to go commercial free

[Anonymous Coward]

If they want compensation they're welcome to start their own site over which they have direct control of ad revenue.

Re:Let them choose to go commercial free

[MrL0G1C]

Because some people spend all day adding their commentary to the videos and they wish to be paid for that commentary. I think that's fair. They paid for the game, and the gamer videos double up as advertisements.

I don't buy games without checking out the game-play on youtube first (actual game-play, not trailers) and the commentary is a good indicator of whether the game is enjoyable.

Re:Let them choose to go commercial free

[Anonymous Coward]

I watched an LP of a visual novel(sequel to a game on another platform) just beause I didn't want to buy a playstation vita to play it. Granted visual novels might be blurring the line a bit because the story is usually more prominent than gameplay but still. I can see nintendo's point.

Re:Let them choose to go commercial free

[Anonymous Coward]

Er no. They're playing a game. Why should they be compensated for their time. The experience is the reward.

will they sue the AGVN / make him pay from the

[Joe_Dragon]

will they sue the AGVN / make him pay from the right to do his show with any Nintendo game?

Re:will they sue the AGVN / make him pay from the

[Patman64]

Well his channel mysteriously disappeared from YouTube for a while, so who knows.

Re:will they sue the AGVN / make him pay from the

[Anonymous Coward]

AGVN videos are more focused around original comedic scetches than outright video game playthroughs. Sure, he has a few videos where he plays through the entire game, but more often than not, his videos are more about him goofing around and making people laugh on the subject of video-games.

Re:will they sue the AGVN / make him pay from the

[Anonymous Coward]

Of course not. AGVN is not playing through the entire content.
This IS surely a big difference.

Re:will they sue the AGVN / make him pay from the

[ikaruga]

AVGN is a reviewer, he is safe. He only shows a very small fraction of the games therefore making it fair use. Let's Play basically show the entire game as movie with some nerd talking in the background.
Personally, I'm curious on what they are going to do here in Japan. I've been what japanese Let's Play videos (aka Jikkyopurei) since 2006 on nicovideo. And Nintendo in Japan is much more strict then in America when comes to copyright and trademarks(second only to Disney which rules their content with an iron fist).

Re:will they sue the AGVN / make him pay from the

[Anonymous Coward]

AVGN-Videos is covered by Fair Use.

The Video-Clips he inserted (from other Movies) weren't (not part of the Review per Fair Use). So they decided to cut those clips out for the DVD-Release.

Re:will they sue the AGVN / make him pay from the

[Anonymous Coward]

AVGN's videos are not let's plays, they are parody reviews. His content is very obviously covered under fair use.

Re:will they sue the AGVN / make him pay from the

[Anonymous Coward]

I hope so. He's one annoying motherfucker.

Who Holds the Copyright?

[Cruxus]

IANAL: Nintendo holds the copyright on its video games, obviously. A walkthrough may fall under the category of "derivative work." When a user uploads a video to YouTube, presumably they agree to YouTube's terms and conditions: a license to use the uploaded work. YouTube in turn has agreements of its own with other copyright holders like Nintendo. Presumably Nintendo could try to make the case that the walkthrough violates their copyright and/or trade dress protections. Instead, they "settle" with the walkthrough creator by taking their ad money. :) Maybe the content uploaders can be given the option to have the video taken down instead of the ad revenue going elsewhere.

Re:Who Holds the Copyright?

[Anonymous Coward]

Actually, copyright law does not protect the author's of unauthorized video works. If you create such a work, you cannot sue Nintendo or anyone else for violating copyright law. See Anderson v. Stallone. http://en.wikipedia.org/wiki/Anderson_v._Stallone.

Game Media

[Anonymous Coward]

Do they take the ad revenue from IGN or Gamespot when they do a live streaming playthrough?

So much for Angry Video Game Nerd

[Anonymous Coward]

I imagine nearly all of his videos will be affected by this?

Simple Solution

[CanHasDIY]

Just make fun of Nintendo, constantly, through the course of your LP video... maybe cut to a self-cam every 25 seconds to meet the "less than 30 seconds" limitation of fair use.

Bam, parody. Suck on that, ho-bags.

REALLY?

[coniferous]

"'In a statement, the firm said the move was part of an "on-going push to ensure Nintendo content is shared across social media." What the fuck does that have to do with ripping off content producers?

This problem will solve itself

[asmkm22]

Once the next-gen consoles are released, there will be so few people playing Nintendo games that none of this will matter. Even EA has stopped making WiiU games.

Re:This problem will solve itself

[Merk42]

Yes, because people only LP recent games

Fuck Nintendo and Fuck Google

[Seumas]

Instead of "using the content ID match system", how about they use the "DMCA notification" so that everyone has their fair claim and response under the law and, if needed, in a court rather than letting Google just turn it into both a heavy-handed big-guy-versus-little-guy squashing and "monetizing" opportunity?

Correction

[Anonymous Coward]

You must have gotten that quote wrong. Surely it must say that it was part of an "on-going push to ensure Nintendo content is never shared across social media."

Talk about looking a gift horse in the mouth...

[AdamHaun]

(For those who don't know what this Let's Play thing is all about, it's where you add commentary to a playthrough of a game, either in speech or subtitles. It started on SomethingAwful several years ago. If you want a good example, check out the Jurassic Park: Tresspasser LP by ResearchIndicates, which is one of the best. Okay, helpful part's over, back to ranting.)

So a big media company discovers that people on YouTube are posting full-length video playthroughs of entire copyrighted works, but instead of immediately sending out takedowns, they decide to support it -- yes, actively *support* it:

In a statement, the firm said the move was part of an "on-going push to ensure Nintendo content is shared across social media". "We continually want our fans to enjoy sharing Nintendo content on YouTube," the company added. "That is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property."

[emphasis mine]

And in exchange for totally legitimizing these flagrant acts of copyright violation (most of which are completely half-assed and not at all good advertisements for the games), all they want is the ad revenue from the videos. And you're telling us to *complain* about this?

What kind of whiny ungrateful shit-for-brains idiocy is this? Nintendo has every legal right to sue the bejeezus out of LPers, and they chose not to, using the same reasoning we've been using for the past fifteen years. *They gave us what we wanted*! Why are we not celebrating? Because all these whiners got out of making a video was fandom and ego gratification? Poor babies!

Also, "corporate gibberish"? It's three simple sentences that are logically connected to each other. Can we save the insults for where they're deserved? It's not like it's hard to find legitimate criticisms of our favorite multinational corporations.

Re:Talk about looking a gift horse in the mouth...

[game kid]

"most of which" indeed. Content-ID is not always accurate (and happily errs in the "content" "owner"'s favor--feel free to Google, or YouTube, that problem). Nintendo can use false matches to destroy people that make original videos without Nintendo images, sounds, etc., by funneling the revenue to them.

Also, "corporate gibberish"? It's three simple sentences that are logically connected to each other.

I'll admit they look English. They're marketer doublespeak, but they do look like grammatically correct English.

At best, all this "on-going push" will "ensure" is that people are chilled at the thought of uploading something with a sound or footage that will trip Content-ID and *wham* no revenue. They also haven't said how permanently they "have chosen not to block people using our intellectual property", so people who have uploaded videos, safe in the knowledge that they've "only" been Content-ID'd and neutered by Nintendo, could be awash in copyright strikes one or two golden-parachuted CEOs later.

Of course, it's not only the fault of the fine folks who brought us 10NES and awful Wii-to-Wii U data transfers; YouTube needs to be taken to task (or at least avoided) for making the chilling Content-ID system.

Re:Talk about looking a gift horse in the mouth...

[AdamHaun]

Nintendo can use false matches to destroy people that make original videos without Nintendo images, sounds, etc., by funneling the revenue to them.

They could, but that would be silly. Nintendo sells video games. Why would they spend time and money trying to steal (less) money from indie movie makers? If they were going to muscle people out of a market, they go after indie games. Your idea is a conspiracy theory at best.

I'll admit they look English. They're marketer doublespeak, but they do look like grammatically correct English.

It's not doublespeak and it's rather awkward English. They very clearly a) stated their desire for people to continue sharing "Nintendo content" (meaning stuff they own), and b) contrasted this with "other entertainment companies". This is not ambiguous.

At best, all this "on-going push" will "ensure" is that people are chilled at the thought of uploading something with a sound or footage that will trip Content-ID and *wham* no revenue. They also haven't said how permanently they "have chosen not to block people using our intellectual property", so people who have uploaded videos, safe in the knowledge that they've "only" been Content-ID'd and neutered by Nintendo, could be awash in copyright strikes one or two golden-parachuted CEOs later.

If you want to make reliable money off of YouTube videos, maybe you should, I don't know, *actually make your own videos* instead of basing them entirely on someone else's work. I'm sure there are plenty of gray areas here, but this is not one of them. A Let's Play is a start-to-finish play through of a video game. It's not taking a few things from a game, it is (by design) taking everything from the game. Call me when Nintendo goes after the Angry Video Game Nerd.

Of course, it's not only the fault of the fine folks who brought us 10NES...

The purpose of the NES lockout chip was to avoid the quality control problems that killed the North American console gaming industry. There's a reason the American NES looks like a VCR.

Re:Talk about looking a gift horse in the mouth...

[LazyBoot]

The problem is that the content-id system used, won't just target LPers... It also ends up going after reviewers and such.

Forget legality, instead think stupidity

[triceice]

Nintendo is stupid to do this. Those videos (I don't watch them or care to) are advertising for the games. People see them and go hey I want to check this game out.

If you start taking away the incentive to make those videos which advertise your game to people who might not really have liked the game but then saw the video and decided to buy it they will simply stop making those videos.

So Nintendo you don't get the ad revenue either way but you do get the additional sales of the game that might have been missed.

Ha Ha!

[Anonymous Coward]

Ha Ha!

Just because they made money on your video

[Anonymous Coward]

Just because they made money on your video doesn't mean that Nintendo are safe stealing the copyrights of the players of their games.

Nintendo can demand the videos are taken down.

THAT IS ALL.

Nintendo are not safe from a lawsuit for theft of copyright (in the most genuine and accurate sense) just because they wrote the game that is being played.

Re:Just because they made money on your video

[mattack2]

How is NINTENDO stealing anything?

This would be like claiming I could videotape me watching last night's "The Office" finale, upload it, and claim that Reveille Productions can't sue me for copyright infringement.

Do I think this isn't the greatest thing in the world for Nintendo to do? Yeah, but it really does seem analogous to uploading a TV show or movie. (Which obviously happens, but doesn't mean it's not illegal.)

Re:Just because they made money on your video

[The Rizz]

This would be like claiming I could videotape me watching last night's "The Office" finale, upload it, and claim that Reveille Productions can't sue me for copyright infringement.

No, this is like you uploading the video, then Reveille Productions claiming that they own your video.

Re:Just because they made money on your video

[Anonymous Coward]

Except video games require a player or there won't be much happening in the recording. A movie plays out whether anyone is watching or not.

Re:Just because they made money on your video

[mattack2]

Which would be semi-reasonable, since the only 'useful' part of the hypothetical video would be the Office episode playing.

Re:Just because they made money on your video

[Keen Anthony]

No. It's analogous to you sitting at a table and playing Monopoly, then uploading a video of that gameplay, only to have Parker Brothers hijack your ad revenue. Gameplay video differs from TV and movie uploads in that, for consumers, the latter is the goal itself –– to watch the TV program or movie. For a game consumer, gameplay video isn't the goal. Gamers want to play the game, not watch a video of another person playing the game. Yes, the gameplay video involves copyright protected content, without which one couldn't make this new content, and so there is the temptation to argue that gameplay video is a derivative work; still, gameplay video is very clearly within the spirit of Fair Use. This should be especially apparent in the case of YouTube game reviewers or game commentators. If it were not, then I suppose I would be infringing just by playing a video game in front of a bunch of people. The fact that gameplay videos are free promotions for game publishers probably shouldn't have much weight since it's anyone's right to decide how they want to promote their product, but in any case, the threshold at which Nintendo suddenly takes over is curious. How many frames of video must feature a Nintendo product before Nintendo can take the ad revenue? What happens if I'm a video game reviewer and I show clips of gameplay from both Sony and Nintendo content? Will that result in a threeway battle over ad money between Nintendo, Sony, and me?

Re:Just because they made money on your video

[sixsixtysix]

This would be like claiming I could videotape me watching last night's "The Office" finale, upload it, and claim that Reveille Productions can't sue me for copyright infringement.

unless it was an educational study/critique on/of your reaction to the episode, all cinéma vérité style, which should be legitimate.

Re:Just because they made money on your video

[Half-pint HAL]

Nintendo are not safe from a lawsuit for theft of copyright (in the most genuine and accurate sense) just because they wrote the game that is being played.

Subtle point: they don't have to claim copyright on the entire video, simply on the visual material depicted therein, and you can't argue that an LP doesn't include their material. Now there's the question of royalties. Just because you own part of the copyright (assuming playing the game is a "creative" act, which is not necessarily a safe assumption), doesn't mean you can claim part of the royalties. Nintendo can set whatever licensing rates they chose to use their copyright material within your work. It just so happens that this time, they're claiming 100% of the royalties, and LPers don't have enough influence to negotiate.

Re:Just because they made money on your video

[Anonymous Coward]

Will that result in a threeway battle over ad money between Nintendo, Sony, and me?

Oh, gosh. I really doubt you would be any part of that equation.

Re:Just because they made money on your video

[oppositefrog]

I had a landlord when I was in college who was a cheap sleazy bastard. He knew every law about precisely what he did and did not have to do. It was an a big old house with lots of roommates. I bailed put early, but needless to say, by the time the house was emptied im pretty sure it had to be condemned. I hope Nintendo follows their "rights" to the same results.

Re:Just because they made money on your video

[Anonymous Coward]

No, it would be nothing like that. Video games and TV/movies are not the same. And there are many LPers out there who put a lot of work into editing, commentary, and 'gimmicks' for their LPs. (Note, the difference between Let's Play and longplay.
Claiming copyright infringement is one thing. Claiming Nintendo owns your video and deserves all of the ad revenue is quite another. Analogies only muddy the actual issue and implant a false sense of understanding of the situation.

Re:Just because they made money on your video

[datavirtue]

Agreed, I blame YouTube for this. They are treading on shaky ground by enabling this practice.

Re:Just because they made money on your video

[DKlineburg]

Just use your head silhouette, 3 robot head silhouette, and have 4 voices make funny comments.....

Wait, that might be infringement.

Re:Just because they made money on your video

[Riceballsan]

Not necessarily, I agree that Reveille should have the rights to make you take down the video etc..., I would fully disagree, if lets say your video did add something to it, in the case of a lets play etc... there is almost always some of it's own content (IE the player commenting on the game, giving advice, etc..., at the very least there is the players playing of the game, the choices he made within the game, etc...). Now lets say someone made a video of the office, added in his own voice commentary etc... Lets say he MST3Ked it, or maybe he opens the video with a 2 minute speach on why he likes the show, and then Reveille used that video in the DVD extra features of their next release. Ignoring the very blurry line of where fair use begins and piracy begins, Reveille should have the rights to shut down the video, determining that the protected content is the only thing of worth in the video. However they also counter that claim if they then use that clip for themselves.

Lets take it a step further, and do what anti piracy advocates try to do... and compare it to physical objects, but instead of a car, I'm going to keep it half digital with a phone. Lets say someone jailbreaks an iphone, and creates their own super awesome app for it. Now lets say the silly laws that outlaw jailbreaking passed, and apple obtained the right to shut down the phones, fine they followed the law however corrupt and stupid of one it is... Now apple then ceases the code, takes the app, and integrates it into their next iphone, giving no credit or compensation to it's creator". Does "well the code was worthless without the phone, and it is illegal for him to use it". Give apple the right to call the code their own?

Nintendo = Criminal scum

[Anonymous Coward]

Nintendo has always used criminal tactics to boost its profits. In the UK, Nintendo actually created special signs for shops selling cartridges informing customers that computer software could NOT be returned for a refund under any condition. These filthy morons figured that ignoring consumer protection laws in the UK would result in a "slap on the hand" at worst, and they were right. While eventually the public in the UK was informed they had the same right to return software as any other product they purchased outright, Nintendo was NEVER punished for running an aggressive campaign designed specifically to deny people their legal rights.

The illegal signs that Nintendo had produced featured the figure of 'Mario'. Nintendo also provided training to shop staff to 'encourage' them to lie to consumers, and tell them that computer games were exempt under UK law.

Now we should all cheer as the criminal garbage at Nintendo circles the drain for the final time. Their latest console is the greatest failure in console history, and is so putrid, EA is refusing to port any AAA titles to the platform. This despite the fact that the WiiU was designed from the ground up to allow ports from the Xbox360 to be cheap and trivial. In life you reap what you so. Now Nintendo badly needs friends, it has none. No major publisher will commit to the Wii U without Nintendo paying them tens of millions (per title) up front. The publishers know they have Nintendo over a barrel, and Nintendo knows if it gives in to this form of financial blackmail, no-one will ever willingly develop expensive software for the Wii U. Luckily for us, the publishers have two new killer consoles coming from MS and Sony, so don't have to give a damn whether Nintendo pays up or not.

Nintendo's copyright isn't the gameplay.

[Anonymous Coward]

Copyright only applies to the work IN A FIXED FORM.

The playing of a game is not copyrighted BY ANYONE. It isn't in a fixed form.

The recording of that copyright is copyright the one doing the work: the LPer.

NOT Nintendo.

$4m of Stolen Revenue

[Myu]

Let's Play is not some kids having fun for a bit of extra pocket money. Consider the case of PewDiePie, who has earned $4m from his Youtube channel recording himself screaming over footage of video games. That's one user. If it is to be treated as a breach of copyright, it is of a notable and large scale, and Nintendo have every right to step in to protect their developers' creations.

Re:$4m of Stolen Revenue

[foreverdisillusioned]

But a video is not the same thing as a videogame. How can you breach a copyright by simply showing a product? By the same logic it's theft from Toyota if you show one of their cars in your video. Hell, by the same logic it would be 'theft' even if you couldn't see the logo.

Re:$4m of Stolen Revenue

[serviscope_minor]

protect their developers' creations.

So, you think it's ok just to steal his money? That video is as much his as it is theirs. You're suggesting that all the money should go to Nintendo. Why the blatant double standards?

Don't compare this to movies or music, it's not

[Nyder]

Why is not the same as having a movie or music background in a youtube video? Because with a movie, or music it can be argued that the person could get it for free by viewing the video. That is not the same for games. No matter what video of a game i find, it's not the same as playing it. I don't get enjoyment watching someone else play video games. No one does. We get it from playing them.

Nintendo loses nothing but free advertising from these videos. Expect now they are losing goodwill, because this is a dick move, which doesn't seem legal, since video games are to be played, not watched.

Re:Don't compare this to movies or music, it's not

[Perky_Goth]

It's not the same, but you're still infringing if you have those in the background, sorry.

The play may not be copywritable ...

[Anonymous Coward]

... but the images of the game ARE. And Nintendo is the owner of the images.

SEGA did it first

[Soccerguy1832]

This isn't the first time a major gaming company hijacked LP's on youtube, ~6 months ago SEGA took down any videos of their old Shining Force game from youtube so SEGA really set the precedent, in a really harsh way

You're kidding me right?

[blueboy13]

Who the hell does Nintendo think they are? To fight piracy for fan-based videos?? Give me a break! I would've thought that it came from Apple, but this is right down cold for a video hardware/software based company...

I unblock on request

[sandytaru]

There are a handful of sites, such as web comic sites, where the people who made the website I'm viewing for free have politely asked me to unblock in AdBlocker, since it's a direct impact on their ad revenue. If they asked nicely (which all the web comic people did) I have done so. I even click through a few of the ads since I know they get more money that way and it takes me two seconds of effort. In exchange, they keep their ads scrubbed free of malware and bad advertisers. And give me funny web comics every day!

Re:I unblock on request

[Anonymous Coward]

I just donate $10-$20 or buy some of their merch, seeing as how it's more than they'll ever get from me unblocking their ads, and there's no threat of getting infected for me (yes, even websites you know and trust can host nasty, virus-laden ads)

Ah! I've got it!

[VortexCortex]

I built an Uninterrupted Power Supply out of capacitors for my experimental server rack, I can clean the power, simulate surges, or modulate the electron waves... If Nintendo claims copyright on me playing a game, then I claim copyright on the electricity signature that produced the gameplay. Since they used my electron wave modulations to play their game software on, then it's a derivative work of my UPS modulations. Additionally, since this is Alternating Current on the line side, when I modulate my voltage usages it affects the power grid, so I want derivative rights for all TV and radio that are being played over the creative electron fields that I'm producing.

Furthermore, I purchased many early games for both Nintendo and their competition. I directly controlled the available revenue stream they used to make additional games, and even informed them which games to make by my past purchasing habits. I want a cut of the profit for their use of my creative endeavors. Could they have been successful without me? Who knows!? Probably not! The creator of the Famicom didn't have any faith in it, yet I did. My influence among peers increased their sales and decreased sales in just the right way to get them where they are today. Time to pay up.

If only butterflies were sentient, they'd own all copyright by Nintendo's logic.

Now

[itsphilip]

I feel way less bad about playing game "backups" on my Wii

Wait, what?

[foreverdisillusioned]

Youtube has ads?

...seriously, I had to turn off adblock and go check. That's obscene. I mean, that's really fucked up. Video ads AND pop-overs? Didn't we go through all of this in the early 2000s and then Mozilla and a few others invented the 'popup blocker'. Then Google came along and revolutionized the ad industry by showing how much money you could make by staying low profile but relevant? Google was supposed to be the intelligent alternative to 'punch the monkey'.

I don't get it. You goddamn kids have had like a decade to learn how to install adblock on everything. Ethical questions aside (I find them to be very silly questions... it's been so long since I ever considered buying anything based on an ad), why is this generation putting up with this shit? I know they're lazily lounging in their walled gardens but this is really, really easy. It's like sliding your car seat back instead of driving with your knees in your face.

Fair Use: Transformative?

[maroberts]

First I don't think anyone disputes that Nintendo have copyright on their games and the artwork in those games. However game play videos can be argued to be Fair Use on the grounds that they are transformative.

Also USC title states that use of works for comment/review is not a breach of copyright either, and this could be argued to be one of those cases.

I think on those grounds a reasonable case could be made to tell Youtube to return the Advertising revenue to the video makers.

And your argument is pointless anyway

[Anonymous Coward]

Since no matter if the LPer has no right to distribute the LP episode, Nintendo DOES NOT GET THE RIGHTS TO IT.

Nintendo can say "We've reserved the rights to a public performance of playing the game, please stop or pay us", but they CANNOT just take the entire work and use it as their own.

However, since copyright only applies to a work in a fixed form, and playing the game IS NOT A FIXED FORM, then the playing of the game is not copyrighted BY ANYONE. The one recording it gets the copyright on it because they have created a FIXED FORM of the playing.

That is irrelevant.

[Anonymous Coward]

Since the textures are NOT being copied by videoing the game, their copyright IS IRRELEVANT.

The End of Retsupurae?

[ButchDeLoria]

But if LPers stop doing stupid shit and acting like fools, will slowbeef and Diabeetus have to focus fully on Wrongprays and Retsufrashes?

What's next?

[mwvdlee]

What's next?
Adobe claiming copyright over photos color-corrected with Lightroom?

Lucky

[Anonymous Coward]

They could really just take it down, claiming copyright issues. Be lucky the videos are still there.

Re:Lucky

[The Archon V2.0]

They could really just take it down, claiming copyright issues.

If a mugger shoots a guy in the leg and then takes his wallet, we don't skip arrest and trial because the mugger could have just as easily shot him in the head and we should be grateful that we have muggers who respect the sanctity of human life.

Be lucky the videos are still there.

Except they won't be, not in any quantity or quality. TotalBiscuit's arguments weren't all well-formed, but he did hit on a few good points.

Somewhat peripherally but still relevant, ContentID is broken and misses as often as it hits. (Hell, yesterday I ran into a video of a guy playing Beethoven's Fifth that had been ContentID-blocked by EMI.)

But more to the point, the online reviewers and Let's Players who do their jobs the best are the ones who are getting paid for it. In general it's the better amateurs who get fanbases big enough that the ads can aid or outright support them, giving them a way to improve their videos with things like editing software (and the time to use it) and the cash incentive to work harder at it. The utterly shit ones who don't care about quality and use their cell phone to record the TV aren't popular and won't make money.

So what happens now? The professionals will abandon Nintendo's stuff and do Let's Plays and reviews of other stuff that they can make the money they need to keep doing it, so a higher percentage of Nintendo-related videos will be low-quality and low-profile. It's the same wrong-headedness that assumes blocking used games on a console means the retailers will fill the shelf space from those nonexistent used games with new games rather than the competition's used games.

In a sense this is like Nintendo's E3 decision; they're trying to save/make money and in doing so are damaging the hype machine that brings in some of their sales.

Would this also mean....

[DJ Particle]

...that Activision could start claiming revenue for all the WoW Machinima videos?

If you apply Nintendo's same reasoning...

[Anonymous Coward]

"In other news, the City of Paris has filed claims on YouTube for all videos filmed in, and around, Paris. Also, McDonalds has filed claims on all videos showing the interiors of their restaurants. Similarly, several food companies have filed claims on all YouTube videos which include people eating their foods. Finally, Barilla pasta company has filed claims on all presentations of 'The Godfather' films, saying that the pasta eaten in some parts of the movie were produced by their company. When questioned about their rationale behind these claims, all the respondents said they were following the same reasoning as Nintendo's regarding game-playing videos."

In other words, Nintendo are being bastards, but Google/YouTube are worse, and are mistaken to apply these spurious claims on game-playing videos. And Google are the ones who are going to be on the hook (legally and financially) for honoring these spurious claims. Here's why:

The City of Paris cannot claim copyright on videos created within their owned, real-world spaces -- since the video is of people's interactions within those spaces -- not a sale of the actual space itself; to watch a video of the Eiffel Tower is not the same thing as buying the Eiffel Tower. Further, videos made within those spaces do not "wear out" nor diminish the spaces in any way (by being portrayed in video). Also, the City of Paris cannot claim copyright on videos created in their owned spaces since such videos do not compromise the economic viability of the spaces themselves (but encourage it's viability). Similarly, Nintendo cannot claim copyright on users' interactions within these virtual spaces, since the virtual spaces (the games themselves) are not being sold, nor diminished, nor harmed economically.

As for the music, there are Fair Use provisions for the broadcast/transmittal of music heard in the background of a videotaped event (like music played in a stadium, during a football game broadcast); in this case, a video game playthrough.

There are other areas in which Google blew it by applying Content ID, since the LP videos are, in essence, fact, and purpose, that of Commentary and Review, a long-supported element of Fair Use in case law.

In short: Nintendo is being evil, and Google is being evil and incredibly foolish. YouTube staffers, go talk to your legal team, before you get fired over this.

Crying doesn't change the facts.

[JakeBurn]

Sorry, but if you take away all of the intellectual property that Nintendo owns, you generally have an audio track that wouldn't get many listeners if it were a pod cast. This is one of those things that the vast majority of people on Youtube have already known, but have been quietly hoping the intellectual copyright owners wouldn't notice. Let's Play videos are utilizing content that the Youtuber doesn't own in order to make money. This has nothing to do with people doing reviews, or tips videos, multiplayer highlight reels or showcases. This has to do with people doing Let's Play videos. They have basically been making money by showing a potential customer everything that they would have had to pay to see otherwise. Games I've loved playing? Why would I want to watch another person play through them instead of playing them myself? I might need help here and there but that's what tips videos are for, and they are not being treated the same way by Nintendo. The same thing happens when a video has a short clip of a feature film. Large portions of the work are not being broadcast so no one cares.

Take the premise of a Let's Play video and attempt to apply the logic, (that people are using here to defend it), on any other medium. A guy reading every line of a book and commenting here and there. Someone else watching an entire movie and commenting here and there. They are exactly the same thing and I don't get how the latter are obvious examples of taking profits for content you didn't wholly create but the former is not. Yes, it has the potential to create buzz but absolutely no argument can be made that it increases sales above what they would have been had the individual enjoying the content bought it from a review instead of enjoying it entirely for free. Do I watch streaming cams from a dozen different sites because I can? Yes I do. Out of hundreds that I've seen over the years, I've bought three. Would hosts from these sites have even the slightest right to complain if told they had to stop? Not even a tiny bit. Not unless they wanted to sound like idiots and hypocrites. Hell, Youtube's ToS even says that if most of the footage in a video is in game footage they aren't supposed to be monetized any way. They only allowed it to happen because no IP owner has spoken up against it until now, but they put the language in there because they knew it was wrong to begin with.

This is standard policy

[peawormsworth]

I dont see any issue with this

First of all it is incorrect to say that Nintendo gets all the ad revenue. The majority of ad revenue goes to Google. The remaining portion they pay out to the content creators is now going to Nintendo.

Whether you agree with this or not, its fairly clear that Nintendo owns the rights to videos created primarily with content scraped from their video game. If there is a lot of additional footage or commentary, then the ownership is more questionable. However, Nintendo probably reserves the right to have these videos taken down if they are not receiving any of the ad revenue in videos which contain content from their video games.

Movie distributors do the exact same thing. I have serveral youtube videos that are edited versions of hollywood movies. In all cases, the advertising rights and profits have been claimed by the distributors of the movies they are based on. I have no problem with this and I think it is entirely ethical for them to be paid because without their content, these videos wouldnt exist.

I think youtube should provide for more ad profit splitting. For example, music owners should be able to instruct youtube to split ad revenue with video creators so that both audio and video creators earn revenue for their efforts. Perhaps youtube should provide automatic splitting of revenue based on the portions of audio and video that are owned by different parties. For example, if a video game has voice commentary over the entire video, perhaps 1/2 should go to the video game creator and 1/2 goes to the owner of the audio content.

I make music videos for music that is licensed "CC attribution"... because this is the only way I can get any revenue from advertising on these. I would be willing to share revenue with music creators, but youtube provides no mechanism for this.

Honest truth.

[Anonymous Coward]

The truth of the matter is that it is mostly wanabe LP'ers that are crying in this case. Sit for a moment and look at these videos. Are they one or two videos? No, they stretch them out to multiple videos to get additional hits and ads from them. Do they say to pick up the game? Most of the time no, they just keep repeating their name and saying sub and comment...please sub and comment. Hell they have give away, usually by the third video, to keep people watching. Few here keep pointing out the same few LP'ers and stating it's a labor of love. If that's true then why are they getting angry by this? Nintendo is only being the first to do this, when the PS4 comes out Sony will do the same once their whole "Share" ability is up and running. Hell they'll probably start banning videos from YT straight out of the box.

Retro LPers are fine

[Nam-Ereh-Won]

I like how the article neglects to mention that Nintendo is only claiming the revenue from more recent games such as ones on the 3DS or Wii U. Also, it's not like Nintendo is the first to do it. Sony, EA, Square-Enix, Microsoft, SEGA, Konami, Namco, and a handful of others have done it, too.

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