Nintendo has Illegal Plans for Let's Plays

[Puddleuk]

You misunderstand what Nintendo is doing. Nintendo is removing the ads already placed by the Let's Play ILLEGALLY. Simply because Youtube TOS allows it doesn't make it legal. Nintendo then places it's own ads over the Let's Play video they did not produce - ILLEGALLY. You can't arbitrarily place your own ads over Linus' videos. They then are holding the stolen revenue at ransom and bribing the Let's Play creators into an 'affiliate" program in return for SOME of their rightful revenue..

Don't you dare tell me why I watch a Let's Play. I watch it for the entertainment brought forth from the PLAYER and to watch the PLAYER's SKILL at the game. I watch it for the video editing as well. Don't you dare pretend to know why anyone watches something. You don't have that right.

 

Your still missing the point, all Nintendo has really done is put forward a copyright claim for their properties. They can then choose what action to take: Mute Audio, Block the video, Monetize it or track it. YouTube then agree and implement the action they chose and by using YouTube you are accepting the TOS so therefore accepting that this type of thing can happen at any time and for any content from any company. Don't like it? Then you should leave YouTube.

 

If any company chooses to protect their copyrighted content through Monetization then guess what? The ads the content creator put on CAN be overwritten by YouTube and the copyright holder. They have the legal right to do so and you (the user) have also agreed to it by using the service.

 

Also you appear to have missed the whole point of the original story, Nintendo have now worked with YouTube to deliver an affiliate program so that content creators can earn revenue once again (As long as they meet the requirements), its a good thing that benefits genuine content creators and deters spammers who leech off their content. And I believe they've made the program simply because YouTube cannot deliver a balanced or managed affiliate list with such unique content since all they can really do is allow everyone to earn (including spammers) or allow no-one to earn, Nintendo have simply put forward a solution to that problem.

 

Call it illegal, but remember its YouTubes rules and TOS, all Nintendo have done (And what thousands of companies do, seriously? Get this in your head that Nintendo is not alone in doing such a thing) is put forward a copyright claim.

[neon]

Don't you dare tell me why I watch a Let's Play. I watch it for the entertainment brought forth from the PLAYER and to watch the PLAYER's SKILL at the game. I watch it for the video editing as well. Don't you dare pretend to know why anyone watches something. You don't have that right.

Your book example is flawed. It is the same as a musician singing a song. You are reading a script written by someone else - true. The author owns the right to that script and you must pay for the right to read it- hence buying the book. To read the book in public is a public performance - same as showing a movie to the public. You must pay for the right to do this, I agree. Why? because the outcome of the script and movie will NEVER change no matter how many times you read or watch it.

HOWEVER, the performer of the book reading owns the copyright of his voice and his acting of the work. This is why you pay a FLAT FEE for the right to perform the work and the right to MAKE UNLIMITED PROFIT from your performance of it. Nintendo is denying those rights illegally.

Your argument is the closest to a valid point I've seen but it only highlights exactly why Nintendo is wrong in its approach.

 

I beg your pardon?

It takes 5-6hrs to see someones skill? the majority of which is spent playing a completely linear storyline, and the video editing, is pure skill, record 6 hours of footage and then just chop it every 20 minutes? this isn't a compilation of someones best frags you are watching, where they have taken time in the video they have produced, or their non stroyline 'extra' playing like multiplayer, it's straight up them playing a game, and they stop the second the 'storyline' is over, there is no skill, there is no ingenuity, there is at best only entertainment, and most of them lack that....

 

I'm sorry you took what I said as a personal attack on you, but even though I obviously know some watch them for the entertainment from the talk over of the player, I know some watch them only for the storyline. Who are you to try and dictate peoples rights.

 

But let's dispense with the tit for tat.

 

Unfortunately I think all the laws were written many years ago when video games simply did not exist, if we take the view everything in a game has been programmed and scripted (the storyline especially), a game is a script yet as I know it you do not pay any royalties to record it and upload it, yet all the Youtubers somehow expect to make unlimited money from their performance of it, you as a player only make simple inputs on your controls, not unlike covering a song and changing the genre, the story is still the same just the notes are different.

 

Perhaps (and I think) Lets Plays should be treated like songs, you pay a fee to the 'owner/publisher/ect.' and then you can then 'make your own performance of it' (I strongly suspect that the top Youtubers and their partner networks may already have agreements like this)

 

What needs to be decided is what is protected, we know that 'extra' content that cannot be reproduced (and therefore is not scripted) cannot be covered, such as multiplayer or just randomly storming around town on GTA, but the storyline is someones artwork, if someone wants to use that artwork for profit (a la Lets Play) should they then pay royalties, regardless if they change something, or provide a running talk over, you are still using someone else's work for your own profit.  

That is the question that lies at the heart of it all, and it is the question that does not have an answer in law or otherwise.

[Vitalius]

I just found something... interesting. It was a comment on a Slashdot article:
 

Not to defend Bennett, but copyright law for "phonorecords" is just different; e.g. you can't rent out CDs like you can DVDs.

This is relevant to this discussion imo. It is true that copyright laws are different depending on the media (i.e. music VS movies). 

I think that adds validity to my comment about how you can't compare video games to other media, even ignoring the fact that you have to interact with a video game to actually fully experience it. 

Not sure how that'd matter specifically for Let's Plays, but I don't think playing a game in chunks and putting it on youtube with your commentary is directly the same as uploading commentary while watching a movie. Or listening to a song. 

Just so you guys know, I believe people should get paid for their work, both the people who make the content (i.e. video games) and the people who make the other content (i.e. Let's Plays), but I don't think one should be able to steal from another. 

I mean, if the guy pirated the game to do the Let's Play, then sure, but if he paid for the game, the company got their share. 

If you say "well, what about all the people who just watch the Let's Play and don't buy the game?", then I say "Well, what about all the people who watch some of the Let's Play, then buy the game because of what they saw?" i.e. free advertisement. 

Personally, I think it all balances out in the end. I don't have numbers to back that up, but until it can be proved that they are losing money because of this, I don't think it's right (not in the legal sense) that Nintendo can just take the Youtuber's ad money.

[GamerDad]

I have made my points crystal clear. it is illegal to replace ads you don't own with our own - regardless of whether the content the ads are on is yours.

It is illegal for Nintendo to control the financing of this system. It is for the COURT to place injunctions on those ads, not Youtube or Nintendo.

it is for the court to determine whether Nintendo has a claim to the copyright, not Youtube.

I believe we have found consensus that a fee should be paid to Nintendo for a license to broadcast the game. That fee however should be FIXED and determined by LAW. What Nintendo is doing is stealing the funds from the creator and returning a variable portion through ransom. This is illegal. Anything occurring before such a protocol cannot be retroactively claimed - the protocol does not exist.

To claim anything outside such a protocol, it is Nintendo's responsibility and legal obligation to go through the courts to have injunctions issued and legally have the funds frozen until the issue is resolved, through the legal system. Not unilaterally.

Many of you put forth the legalities of movies and music. However not one of you points out that all of those disputes are handled through the courts.

Why then do you excuse Nintendo for acting by the law to do what it wants to be doing? Why is it okay for them to act unilaterally outside the legal system?

If Nintendo admits that Let's Players have a right to a share of the profits, they therefore have no right to act unilaterally without a legal injunction first.

[GamerDad]

I beg your pardon?

It takes 5-6hrs to see someones skill? the majority of which is spent playing a completely linear storyline, and the video editing, is pure skill, record 6 hours of footage and then just chop it every 20 minutes? this isn't a compilation of someones best frags you are watching, where they have taken time in the video they have produced, or their non stroyline 'extra' playing like multiplayer, it's straight up them playing a game, and they stop the second the 'storyline' is over, there is no skill, there is no ingenuity, there is at best only entertainment, and most of them lack that....

 

I'm sorry you took what I said as a personal attack on you, but even though I obviously know some watch them for the entertainment from the talk over of the player, I know some watch them only for the storyline. Who are you to try and dictate peoples rights.

 

But let's dispense with the tit for tat.

 

Unfortunately I think all the laws were written many years ago when video games simply did not exist, if we take the view everything in a game has been programmed and scripted (the storyline especially), a game is a script yet as I know it you do not pay any royalties to record it and upload it, yet all the Youtubers somehow expect to make unlimited money from their performance of it, you as a player only make simple inputs on your controls, not unlike covering a song and changing the genre, the story is still the same just the notes are different.

 

Perhaps (and I think) Lets Plays should be treated like songs, you pay a fee to the 'owner/publisher/ect.' and then you can then 'make your own performance of it' (I strongly suspect that the top Youtubers and their partner networks may already have agreements like this)

 

What needs to be decided is what is protected, we know that 'extra' content that cannot be reproduced (and therefore is not scripted) cannot be covered, such as multiplayer or just randomly storming around town on GTA, but the storyline is someones artwork, if someone wants to use that artwork for profit (a la Lets Play) should they then pay royalties, regardless if they change something, or provide a running talk over, you are still using someone else's work for your own profit.  

That is the question that lies at the heart of it all, and it is the question that does not have an answer in law or otherwise.

Then why can a review with EXACTLY THE SAME footage get away without paying such a  fee?

Again, I ask, why can't Campbell claim copyright over Andy Warhol's Campbell Soup paintings? Why do you consistently ignore the point?

[GamerDad]

You can show 100% of a game as well.

No, you can't.

I have yet to see a Let's Play demonstrating a full story playthrough on all difficulties with 100% collectible completion witha  thorough inspection of every nook and cranny of a level, including but not limited to every single demonstration of a glitch, bug, narrative option, story branch, every single possible solution to a given puzzle and every single character customization combination and each such combination being played through along with every single possible demonstration of all combinations of every variable in a game.

Consider that every single play through of Pac-man since the day of it's release in arcades has yet to amount to even close to a fraction of a percentage of every variable in that game. You can never show 100% of a game that has litterally an infinite combination of variables not the least of which is the variable of your own skill and your consistency in delivering that skill.

[Puddleuk]

[LAwLz]

No, you can't.

I have yet to see a Let's Play demonstrating a full story playthrough on all difficulties with 100% collectible completion witha  thorough inspection of every nook and cranny of a level, including but not limited to every single demonstration of a glitch, bug, narrative option, story branch, every single possible solution to a given puzzle and every single character customization combination and each such combination being played through along with every single possible demonstration of all combinations of every variable in a game.

Consider that every single play through of Pac-man since the day of it's release in arcades has yet to amount to even close to a fraction of a percentage of every variable in that game. You can never show 100% of a game that has litterally an infinite combination of variables not the least of which is the variable of your own skill and your consistency in delivering that skill.

So would uploading a movie that is missing 1 frame be alright then? I "created" that file which misses a frame, and it won't be "100% the same as the original".

Actually, you don't see 100% of a movie either, because everyone will blink at different times and intervals, so it's a bullshit argument.

 

It is perfectly possible to show 100% of a game by the way. It's super easy to do with games like visual novels.

[Vitalius]

-snip-

I don't think it's that. I think it's a difference in opinion of what is relevant to a company's bottom line. 

Some people only constitute the story given as the "relevant" part of the game to be showed. You can show that 100% in a Let's Play easy. 

GamerDad considers every aspect of a game relevant, and imo, he does have a point about it being different from a movie. If you were to put a movie or song on Youtube, it would cover everything that was made for it easily within it's allotted time (i.e. 2 hours for a movie, or wtv the length is). If you put a game, you are putting a unique to you experience with that game from your perspective. Something no one else can replicate or give unless they are intentionally trying to do so. 

If you think the difference is arbitrary between just showing the game itself and showing you playing the game, then you are going to disagree with him and agree that it's no different from showing a movie or song. However, as I noted, the copyright laws are different depending on the media between music and movies, and that implies the same would be true for movies VS video games. 

 

So would uploading a movie that is missing 1 frame be alright then? I "created" that file which misses a frame, and it won't be "100% the same as the original".

Actually, you don't see 100% of a movie either, because everyone will blink at different times and intervals, so it's a bullshit argument.

 

It is perfectly possible to show 100% of a game by the way. It's super easy to do with games like visual novels.

This is getting arbitrary. Literally. Calculus, where close enough is equal to. 

So say I watch such a movie, I've seen 99% of the movie (rounded) so I may as well have seen 100% of the movie. I'm not going to buy the movie to see 1% of it. A game is different. It would take forever to show even a small portion of all of it. However, it depends how you weight each aspect (i.e. gameplay, story, environment, etc). If all you care about is story, then that's obviously not true, but if you care about the experience you would have actually playing it, you basically have to buy it (or pirate it).

Visual Novels are a unique exception. 

As I said though, comparing the two media is dumb when other copyright laws regarding other things (not fair use) treat them differently by default (such as renting CDs vs renting DVDs). IMO, any argument trying to use a comparison like that is nulled because of this fact.

[Scionyde]

 

 You're right but you forget that the lyrics to the song a FIXED and never change if you sing those words. A game is instantly unique the moment you play it by virtue of how you play it.

 

 

 

I don't think it's necessarily the lyrics, the tune itself is also probably under copyright. And even then, I'd imagine variations on the tune would probably face legal action as well. I could adjust tempo of the song, play different instruments, replace certain quarter notes within the song with half notes, through in a tremolo or two, and maybe shift a section of the song up an octave. I think a legal team would argue that my song is a recognizable derivative of their intellectual property, and is thus open for legal action. Yeah, there's a point where if I make enough changes, I'm probably safe, but I wouldn't say it's fixed. 

 

I guess the question is, does Nintendo "own" a specific way of playing their game, with every player's play-through being considered a derivative of that way? I have no idea if that's a sound legal argument or not, I'm speculating lol. Either way, I think we're very much in a gray area.

 

Anyway, regarding the whole Andy Warhol/Campbell Soup painting, I definitely see where you're coming from. I don't know a lot about the subject, but after a quick Google search, from what I can tell, Andy Warhol never won in a lawsuit from Campbell Soup, he merely was never sued in the first place, so I'm not sure if that qualifies as solid precedent. Apparently, after his death, the Andy Warhol foundation entered into a legal agreement with Campbell Soup so that each party would own a stake in the imagery regarding the soup can paintings. I could be wrong though, like I said, that's just after a quick Google search of some not totally official sources.

 

But yeah, gray areas and such.

[neon]

Then why can a review with EXACTLY THE SAME footage get away without paying such a  fee?

Again, I ask, why can't Campbell claim copyright over Andy Warhol's Campbell Soup paintings? Why do you consistently ignore the point?

 

Because a review is a critique of the artwork, it does not use the entire works, but shows samples of the gameplay to review the product to provide feedback and commentary, and to let people decide whether to buy the product/go see it (if movie or theatre).

 

From what I can see Campbell could have possibly sued Andy Warhol if they wanted but they decided that the free advertisement was of far more benefit, and since Andy Warhol has died his estate has apparently got a licencing agreement with Campbell for use of the artwork on the can.

 

It is not too hard to see the same being the exact case for Lets Plays, we know many of the publishers and owners are completely happy to let Lets Plays use their work (and how do we know there are not already licences in place for the big Youtubers), but it is silly to think that everyone is the same, Nintendo has obviously decided it doesn't want people using their content in Lets Plays, and they are within their right to do so (I seem to remember a few indie developers have said the same), with there being no precedent on video games then it's fair game until someone takes it to court.

 

We are not talking about a quick 5 min video of how to beat a tricky boss, but the systematic play through of the entire story arc which could easily be argued belongs to the 'writer/publisher/owner', I think you are splitting hairs on the fact that a 'player' can modify it buy pressing Up, Up, Down, Up, Up rather than just Up, Up, Up the end is exactly the same.  Not to mention cut scenes they are definitely non modifiable, yet are included in Lets Plays.

[Vitalius]

We are not talking about a quick 5 min video of how to beat a tricky boss, but the systematic play through of the entire story arc which could easily be argued belongs to the 'writer/publisher/owner', I think you are splitting hairs on the fact that a 'player' can modify it buy pressing Up, Up, Down, Up, Up rather than just Up, Up, Up the end is exactly the same.  Not to mention cut scenes they are definitely non modifiable, yet are included in Lets Plays.

I know we are probably, as you said, splitting hairs here, but take a game like Agarest: Generations of War. You make tons of decisions throughout the game that decide what you see and how you can do things. You literally have to replay it a second time to get everything, and you'd have to replay it several times to see every different option available to you. Then you'd have to replay it 100's of times to see every variation possible.

Would a single playthrough Let's Play of that be considered acceptable? I ask because I'm curious where the people who may argue that it's not different between a movie or video game draw the line. 

Regardless of the end being the same, I would argue that how you get there is just as important and that the time it takes to get there means there's enough difference that Fair Use could be applied if I were a lawyer (speaking when I know nothing about what I'd need to actually argue to win the case). 

[neon]

I know we are probably, as you said, splitting hairs here, but take a game like Agarest: Generations of War. You make tons of decisions throughout the game that decide what you see and how you can do things. You literally have to replay it a second time to get everything, and you'd have to replay it several times to see every different option available to you. Then you'd have to replay it 100's of times to see every variation possible.

Would a single playthrough Let's Play of that be considered acceptable? I ask because I'm curious where the people who may argue that it's not different between a movie or video game draw the line. 

Regardless of the end being the same, I would argue that how you get there is just as important and that the time it takes to get there means there's enough difference that Fair Use could be applied if I were a lawyer (speaking when I know nothing about what I'd need to actually argue to win the case). 

 

That is the question, even games like Bioshock Infinite, 90% of the game is identical for everyone but a couple of decisions here and there change things, and can affect the story a lot, like on Beyond Two Souls.

 

That is why I ask is (or should) the story arc be protected like a novel, song or film, all aspects of it are pre planned and only varies on an choose A, B or C method, which most games are completely linear, I think we all agree that a multiplayer part of a game is generally infinitely different and watching someone kill the opposing team on CoD cannot really be protected as there is no detrimental effect from watching it, but a Lets Play does have something that is scripted which if watched can negate playing that part of the game.

 

Until there is something solid (like a court case), all we can ask is questions, the Youtubers who make Lets Plays will always turn on something (Nintendo) trying to take their money away, but it doesn't mean they are right.

[LAwLz]

So say I watch such a movie, I've seen 99% of the movie (rounded) so I may as well have seen 100% of the movie. I'm not going to buy the movie to see 1% of it. A game is different. It would take forever to show even a small portion of all of it. However, it depends how you weight each aspect (i.e. gameplay, story, environment, etc). If all you care about is story, then that's obviously not true, but if you care about the experience you would have actually playing it, you basically have to buy it (or pirate it).

Visual Novels are a unique exception. 

As I said though, comparing the two media is dumb when other copyright laws regarding other things (not fair use) treat them differently by default (such as renting CDs vs renting DVDs). IMO, any argument trying to use a comparison like that is nulled because of this fact.

So say I watch a Let's Play. I've seen 99% of the game so I may as well have seen 100% of the game. I'm not going to buy a game to see 1% of it.

Oh and no, it's not hard to show 99% of a game in a video. Like you said, it depends on what you are after though. Certain games can become really boring if you have seen a Let's Plays of it (like puzzle games or games that are very linear and story focused).

I'm going to repeat myself since it's starting to sound like I am against Let's Plays. I am not against them. I think they can help companies. You have to see that there are very strong parallels to be drawn between uploading a video of a game on YouTube, and uploading a movie on YouTube though. Hell your original statement was that if you put your own commentary on top of it, it's alright to upload any copyrighted material since it's "fair use". It's not.

You can't just upload copyrighted material just because you have done some minor editing and put your own voice track over it.

 

Visual Novels are a unique exception.

How so? Because they don't fit your argument? They are classified as games so they should apply to this conversation as well, right?

You can't just ignore situations where your arguments doesn't hold up.

 

As I said though, comparing the two media is dumb when other copyright laws regarding other things (not fair use) treat them differently by default (such as renting CDs vs renting DVDs). IMO, any argument trying to use a comparison like that is nulled because of this fact.

You also have to remember that things that applies to songs and movies should (if you think logically, but the law might not be well thought out) also apply to games, since games includes movies (cut scenes) and songs.

Would it be alright for me to upload a video full of songs just because they are being played on the radio in GTA? Not just upload it, but also earn money from it. By your logic, yes it should since I might cut so the songs play in a specific order (which also makes it an "unique experience" or whatever the bullcrap you're trying to pull with "but not everyone plays the game the same way!") and maybe I give my commentary on something once in a while.

[Vitalius]

So say I watch a Let's Play. I've seen 99% of the game so I may as well have seen 100% of the game. I'm not going to buy a game to see 1% of it.

 

Oh and no, it's not hard to show 99% of a game in a video. Like you said, it depends on what you are after though. Certain games can become really boring if you have seen a Let's Plays of it (like puzzle games or games that are very linear and story focused).

 

I'm going to repeat myself since it's starting to sound like I am against Let's Plays. I am not against them. I think they can help companies. You have to see that there are very strong parallels to be drawn between uploading a video of a game on YouTube, and uploading a movie on YouTube though. Hell your original statement was that if you put your own commentary on top of it, it's alright to upload any copyrighted material since it's "fair use". It's not.

 

You can't just upload copyrighted material just because you have done some minor editing and put your own voice track over it.

 

How so? Because they don't fit your argument? They are classified as games so they should apply to this conversation as well, right?

You can't just ignore situations where your arguments doesn't hold up.

 

You also have to remember that things that applies to songs and movies should (if you think logically, but the law might not be well thought out) also apply to games, since games includes movies (cut scenes) and songs.

 

Would it be alright for me to upload a video full of songs just because they are being played on the radio in GTA? Not just upload it, but also earn money from it. By your logic, yes it should since I might cut so the songs play in a specific order (which also makes it an "unique experience" or whatever the bullcrap you're trying to pull with "but not everyone plays the game the same way!") and maybe I give my commentary on something once in a while.

Depends on the game and what you constitute as 99% of it. 

Again, depends. I agree completely for basic games like strictly puzzle games where it is entirely knowledge based (i.e. I know how to do it, so it's easy) but not skill based (i.e. I know how to do it, but it can still be difficult). 

I was going based on what knowledge of Fair Use that I had. That was before I found out the laws are different between media.

No. Because it doesn't fit what I was talking about. That's why I called it a unique exception. I said it's hard to show 99% of a game in a Let's Play. Visual Novels have a lot less content than most other games. There are usually backgrounds, characters, story and voices. Most of the ones I've played are purely choices rather than any actual gameplay (puzzles, for example), though I admit I haven't played a lot of them. Which is completely different from most other games. In fact, I would say calling a Visual Novel an interactive movie is actually more true than calling it a video game. They are far easier to show everything for than other games. 

[ohitsluca]

This is funny, there was outrage when Nintendo was preventing monetization and now there's outrage when Nintendo is trying to give at least some of it to whoever is recording their game.

Because both are ridiculous and shouldn't be happening. Why should someones ad revenue on their video go from youtube, to nintendo, to the youtubers network, then back to the youtuber? it's convoluted, and basically theft... they legally don't deserve any of the revenue and shouldn't be involved at all. 

[Vitalius]

they legally don't deserve any of the revenue and shouldn't be involved at all. 

Youtubers or Nintendo?

[GamerDad]

Thank you vitalius for thoroughly understanding my point.

Scionyde, you're right that the tune as you put it is also copyrighted. However there are countless example of variations of the song in film and tv that prove that enough variation is legal.

Appropriation is common and legal in art. I am suggesting that Lets Plays are art. Call it terribly poor art if you must, but it is art. Derivatives in art are legal. It is why you are allowed to draw your neighbourhood without being sued. Yes, your neighbourhood is a copyrighted work of art under law.

As for poor neon who clearly doesn't see the difference between a game and a movie, you contradict you own argument when you say that a review with exactly the same footage as a lets play (no more, no less) is legal because it is a critique while a lets play is illegal because it isn't is an oxymoron.

The law doesn't care WHAT the script is of a review is. It considers only if the script reflects the experience of the product as to inform an audience of the products merits and value.

Sounds exactly like a lets play to me. If I can gauge whether the game is fun or sucks based on the players reaction to the game, it is a review.

So again I ask given that the footage is exactly the same (there are 20 minute reviews out there), what makes a lets play different from the review as to make it non monetizeable? Again, the script of the voice over is an invalid argument.

Finally, LAwLz: mashups, remixes, parodies, reviews, commentaries, news stories, fan fiction and fan films all invalidate your argument. They are all derivative works and Weird Al has yet to lose in court for his parodies.

[OozyGorilla]

You can't just upload copyrighted material just because you have done some minor editing and put your own voice track over it.

But the whole underlying argument, ultimately, is: does adding a commentary track transform the game enough to be fair-use, thus allowing the Youtuber to be allowed to upload and monitize it. It seems the entire of your argument is based on your opinion that a commentary track isn't transformative enough. And until a court rules one way or an other, that's all you, or any of us, have, is your opinion.

 

At this point in the argument, it's all opinions that can't be truely validated until there is a court case on the subject to set a precedence. There are parallels between other mediums, sure, but none of those solutions work for the entirly of the video game medium. The game industry deserves it's own sets of rules and regulations. I think we can all agree on that.

 

I'm actually quite surprised how civil this whole thing has been.

[LAwLz]

But the whole underlying argument, ultimately, is: does adding a commentary track transform the game enough to be fair-use, thus allowing the Youtuber to be allowed to upload and monitize it. It seems the entire of your argument is based on your opinion that a commentary track isn't transformative enough. And until a court rules one way or an other, that's all you, or any of us, have, is your opinion.

 

At this point in the argument, it's all opinions that can't be truely validated until there is a court case on the subject to set a precedence. There are parallels between other mediums, sure, but none of those solutions work for the entirly of the video game medium. The game industry deserves it's own sets of rules and regulations. I think we can all agree on that.

 

I'm actually quite surprised how civil this whole thing has been.

True that. Until a court decides it's just opinion vs opinion.

I think it's stupid that games shouldn't follow the same rules as music and movies though, since they contain elements from both. At the same time, I think it's stupid of companies to crack down on it.

I think companies should have the right to crack down on Let's Plays if they want, since it is people making money from their creations without permission.

[GamerDad]

FINALLY, we all see each other's point of view.

Now, if we agree that it is opinion vs opinion until a court rules on the issue we therefore must look at the legalities of Nintendo's actions.

It is not disputed that Youtube's TOS allows Nintendo to flag a video and request ads be removed. This is not the issue.

What is the issue is Nintendo unilaterally placing ads on someone else's video. This is the same as me putting an ad on a Tech Quickie clip because I feel like Linus stole my opinion.

Nintendo also happens to advertise on Youtube. Assume Nintendo ads appear on your videos (and sometimes they do).

Ad revenue on Youtube works like this:
Nintendo pays Youtube pays percentage to you.

Nintendo is doing this:
Nintendo pays Youtube pays ?? % to you pays 100% to Nintendo pays 30% to you and 30% to Youtube.

Notice the problem?

 

Nintendo is discounting its own advertising fee (ie. taxing you). This is illegal.

Now imagine Sony ads appear on your clip:

Sony pays Youtube pays you Nintendo pays you.

The problem begins to compound. Sony does not want to pay Nintendo to advertise on your videos that it wouldn't mind advertising on otherwise. Sony should not have to pay Nintendo to advertise on your video, even if that video is about Nintendo. It should only pay Youtube, as per the Youtube TOS. In effect, Nintendo's actions directly violate the Youtube TOS and taxation law not to mention any disputable copyright violation on the creator's contribution to the video.

Also, HYPOTHETICALLY, if a Let's Play cannot monetize because of game footage, Nintendo equally cannot monetize the video because of the artistic merit in editing, voice work, scripting, and the creator's own copyrighted logos and themes. At best - it is a wash and no one is should be able to monetize.

[IDprofile]

IMO gaming won't properly be a sport until players are treated as actual performers.

You can make money playing football but you can't when playing a video game, doesn't make sense.

How is anyone suppose to take a video game seriously when this is how it works?

[neon]

As for poor neon who clearly doesn't see the difference between a game and a movie, you contradict you own argument when you say that a review with exactly the same footage as a lets play (no more, no less) is legal because it is a critique while a lets play is illegal because it isn't is an oxymoron.

The law doesn't care WHAT the script is of a review is. It considers only if the script reflects the experience of the product as to inform an audience of the products merits and value.

Sounds exactly like a lets play to me. If I can gauge whether the game is fun or sucks based on the players reaction to the game, it is a review.

So again I ask given that the footage is exactly the same (there are 20 minute reviews out there), what makes a lets play different from the review as to make it non monetizeable? Again, the script of the voice over is an invalid argument.

 

What exactly is you problem? you have descended into some form of insults now, are you that desperate? I have never said Lets Plays are illegal or that they should be, so you can put a sock in that, what I have said is that there needs to be the question asked is if a Lets Play (which is just a straight play of the story line of a game) can or should be considered like a script (similar to the lyrics of a song) and when people use it for profit they should pay royalties?  

 

What are you talking about? Where have you got this 'script of a voice-over' from? I been meaning the script of the game, games are scripted and storyboarded.

 

I would have thought anyone would have been able to understand the difference between a review and a Lets Play, if you need help then this is a review: 

and this is a Lets Play or a 'gameplay' as many call it 

note the review is a critique of the game showing many different areas of the game while explaining the premise and the quality of the game among other things, the Lets Play is just someone playing the game with the odd bit of talk over.

 

I know this is your thread you started but I am not attacking you, I don't have to like something to have an objective and open mind, I have said that no one knows and until something solid happens (i.e. a court case) all we can do is ask questions, and I would think that you should do the same.  We cannot say that Nintendo are not within their right that they should receive money from Lets Plays, and it seems their affiliate scheme is a good way of doing that protecting their copyright material but allowing people to make money from it.  

Just because one company doesn't ask for royalties doesn't meant that non can, it's very much up for debate.

 

You have now made a post agreeing that it is just opinion and it needs to be decided if a Lets Play is of fair use and how much talk over counts as 'enough', so I don't know what you have been arguing about, pity it took someone else to say what I've been saying all along for you to agree, what a waste of time.

[GamerDad]

Neon, if Nintendo is allowed to claim all revenue of a Let's Play, it is because a Let's play is illegally using Nintendo assets. Either you agree with Nintendo that Let's Plays are illegally making revenue (hence their ransom attempt at "making it legal" or you agree that let's Plays are legally using Nintendo's assets and therefore Nintendo's actions are illegally stealing money from content creators. Either way, SOMEONE is doing something illegally. That's why a court needs to rule on the issue.

 

I merely pointed out, as SEVERAL others have, that you don't make the distinction between a game and a movie. This isn't an insult. it is an observation. Sorry the truth hurts.

 

Let's Plays are not straight plays of a game's story line. They are the live or scripted reaction and expression of emotion of a person's game play experience. This may include an entire game, a portion of the game, a portion of a level, or simply one room. A Let's Play also is "a critique of the game showing many (or one) areas of the game while explaining the premise and the quality of the game among other things". If you can't understand that, no amount of debate will make you.

I don't feel that you are attacking me and at no point am I attacking you. My comment may have been sarcastic, but not insulting. Not intentionally anyway and if you were insulted, I apologize.

We can absolutely say whether or not Nintendo is in the right and I have very plainly explained why in absolute simple legal terms. The right way is to have a court issue an injunction. Anything else IS illegal.

 

You're right, a company can ASK or DEMAND for royalties. It cannot arbitrarily and unilaterally STEAL money and keep it as an illegal royalty tax. Again, the LEGAL route is to have a court issue an injunction.

Both sides are an opinion that a COURT must decide. Right now, it is Nintendo deciding. Again, illegally.

 

You consistently fail to grasp my point.

My point is NOT that let's Plays are fair use. My point is Let's Plays are appropriation for the legitimate creation of a derivative work.

The consensus is that games are NOT movies are NOT music. The law is music is not handled the same as movies. Therefore games cannot be handled the same way either.

A video of a game is not a game. it is a derivative work that cannot be confused or experienced the same way as the game. The same way Andy Warhol's Campbell Soup paintings are legal and cannot be copyrighted by Campbell. A video of a movie is THE SAME THING as the movie. It can be confused as the movie itself and is not a derivative work, it is a COPY of the work. The argument you continue to profess falls apart instantly right there.

 

No sane person can argue that video of gameplay is gameplay itself let alone a copy of the game. Your viewing of gameplay cannot be confused for playing the game.

I have acknowledged valid arguments supporting Nintendo's angle and have raised the legal issues of Nintendo's ACTIONS, not their position or reasoning. None of those angles are yours as they instantly fall apart.

You provide two examples showing different games. It isn't an apples to apples comparison.

I raise you this:
Review:

Both the above and your let's play clip are audio tracks over game play footage with editing. THAT'S ALL.

What the words in the voice over are is irrelevant. One is a review (is it? Looks like a let's play to me), one is a let's play - both are exactly identical according to the law.

FYI the above review contains more game play footage than your let's play and review combined.

Again, I ask you what make a Let's Play non monteizeable while the review is when the only thing different is the script - which is written by the content creator, NOT the game developer.

From where I stand, if the only difference is from the youtuber then that means the youtuber owns the rights since the publisher's claim to ownership and participation is identical in both cases.

[LAwLz]

FINALLY, we all see each other's point of view.

Now, if we agree that it is opinion vs opinion until a court rules on the issue we therefore must look at the legalities of Nintendo's actions.

[continues to say it is illegal]

No you don't get it... Until a court decides, there are no laws about it. You can't say "good we agree that it's opinion vs opinion, but my opinion is right and yours is wrong" because that's exactly what you're doing right now.

Things are legal until they are made illegal. What Nintendo are doing is legal until a court decides it is illegal. Please remove the click bate and inaccurate title of the thread because right now, it is not true.

 

Has anyone fully read the YouTube TOS? Since YouTube is a private company, they might have the full right to do whatever they want with the videos. If it is in the TOS, YouTube could make whatever agreement they want with Nintendo regarding your videos, and it would be perfectly legal, including things like giving all the ad revenue to Nintendo. It depends on how the TOS is worded.