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

[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

[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

[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.

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: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: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: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: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: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: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.