Nintendo has Illegal Plans for Let's Plays

[Mooshi]

All I hear is "BOOOOOOOOO RABBLERABBLE I CAN'T MAKE MONIES PLAYING A VIDEO GAME AND TALKING OVER IT NOW NINTENDO IS MAD AND THEY SUCK"

 

As stated already. There is no fancy work, no special editing. Let's Plays are someone playing a video game and talking over it. Some are more obnoxious than others by trying to witty and coming as completely annoying when they talk over dialog. Some are entertaining, but that's about it. The content itself doesn't change. Unless it's a game you made, you should not be entitled to monetize it nor complain when a company that actually makes said content wants a portion of revenue from something you seriously didn't even earn. If it's for fun, cool. If you monetize from an LP and a company wants a cut, stop whining or make your own original content, simple as that.

 

Worst offenders are those who put up an LP on a game that was /just/ launched. Get lost with that mess.

[neon]

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.

 

If you cannot tell the difference between the Total Biscuit video and the Lets Play I showed then...., hint: one is a critique of the game one is a play through of the storyline, (and the two videos I posted are of the same game) I am not and never have talked about the 'game footage', I am talking about the scripted content of the game (the story line and arc), which you refuse to understand.

 

Ubisoft allow people to do lets plays for free and monetise them as long as they they follow certain conduct rules (which includes Watch Dogs), this is Ubisoft exerting control over their IP, if they were not allowed to exert control of their IP then people would not be compelled to follow their guidelines, again reviews are exempt from following these guidelines because it is a critique and critiques cannot be forced to be censored.

Microsoft has similar guidelines.

 

- I have never said Let's Plays are or should be illegal - it is not defined however it is accepted that they should be licensed, either for free or by royalty, it's the 'owners' to decide.

- I have said that it is reasonable that when someone is using the scripted storyline of a game then they should licence and (if the 'owner' wants) pay royalties (something that is the general consensus of the industry and internet (but (unsurprisingly) to some extent not the people who do the Lets Plays) -  you have said explicitly that you agree with this.

- the Youtube TOS that you say are to protect content creators from having their content stolen (and to make Youtube money), for instance if someone downloads LinusTechTips videos and re uploads them for their own profit then Linus can exert control and make money from his property.  Nintendo became a Youtube partner to exert it's control on it's IP and went mostly after full video walkthroughs, or in other words videos that use the storyline.

- Other publishers have done similar action on their content including EA and Activision

- If the Youtubers who do a Let's Play have their content flagged and monetised by Nintendo ect. then that is allowed by Youtube TOS, if they were unhappy with that then they should not have agreed to those Terms when they joined Youtube, and they should take Youtube to court for allowing this.

- If the Youtubers (and other fair use activists) felt strongly that using a games scripted storyline in a Let's Play if fair use then they should take it to court for a ruling, but I very much doubt they will as, I think, judging buy what agreements already exists, they would loose.

- Your argument seems to be more at Youtube for allowing this (especially by their Content ID system which has had a lot of bad news), Nintendo along with all other 'owners' have the right to control their IP.

 

 

Again to absolutely clarify I have been talking about the scripted storyline in a game and it's use by people for profit, this is what Nintendo went after last year, now obviously some legitimate videos may have been caught but everyone knows nothing is perfect and the kinks I think were partly ironed out (and then Youtubes Content ID system partly screwed it all up again)

I am not talking about using video footage of a game at any length (if someone wants to upload 6 hours of footage stealing taxis on GTA that, arguably, should be fine),

 

I would thank you for finally understanding the difference between footage of the game used in an acceptable manner and using the scripted storyline for your own personal gain, and am not bothered in reading any more of your fictitious 'words' I have 'apparently' said, when you clearly misunderstood the point I have made, and is completely agreed by most. 

 

I will leave this as someone else saying essentially what I've been saying http://metro.co.uk/2013/05/19/the-legalities-of-lets-play-readers-feature-3788322/

we don't have to agree but I have made my points clear, and they are the views of content creators and general interested parties and the public alike. 

 

You have said that Nintendo taking the advertising revenue from Let's Plays is illegal, it is not, there has been no ruling that it is and it seems that everyone is scared to even take it to court, it is however a generally accepted practice Nintendo (among many other parties) has done and one that no one has yet chalenged, because perhaps they deep down they know Nintendo et al are right.

[GamerDad]

Mooshi, what you describe is easily also applicable to a review, particularly those in the style of TotalBiscuit's WTF is.

I'm not arguing that I'm right. I'm arguing that the law is the law. Nintendo cannot legally force royalty fees without a court injunction.

I am arguing that the legal path is to have court injunctions issued.

Again, simply because Youtube allows it, doesn't make it legal.

Furthermore, Nintendo IS breaking the YouTube TOS through its actions of implementing a royalty tax that third parties have not agreed to.

What Nintendo wants to do requires a change to the advertizing TOS.

Millions of companies make you sign contracts that make you promise not to sue if something goes wrong. The Supreme Court itself ruled this is not a legal clause and doesn't hold up in court. This is proof that simply because something is in a contract or TOS doesn't mean it is legal.

[LAwLz]

Mooshi, what you describe is easily also applicable to a review, particularly those in the style of TotalBiscuit's WTF is.

I'm not arguing that I'm right. I'm arguing that the law is the law. Nintendo cannot legally force royalty fees without a court injunction.

I am arguing that the legal path is to have court injunctions issued.

Again, simply because Youtube allows it, doesn't make it legal.

Furthermore, Nintendo IS breaking the YouTube TOS through its actions of implementing a royalty tax that third parties have not agreed to.

What Nintendo wants to do requires a change to the advertizing TOS.

Millions of companies make you sign contracts that make you promise not to sue if something goes wrong. The Supreme Court itself ruled this is not a legal clause and doesn't hold up in court. This is proof that simply because something is in a contract or TOS doesn't mean it is legal.

I'd like to see the law which makes it illegal. You have refereed to this law several times but have not actually posted it.

I would also see which part of the TOS Nintendo are breaking. Putting it in a quote with a link would be the preferred method.

 

 

Like this:

7.7 You agree that Content you submit to the Service will not contain any third party copyright material, or material that is subject to other third party proprietary rights (including rights of privacy or rights of publicity), unless you have a formal licence or permission from the rightful owner, or are otherwise legally entitled, to post the material in question and to grant YouTube the licence referred to in paragraph 8.1 below.

YouTube's Terms of Service

[GamerDad]

Neon, for once I agree with you.

Youtubers won't bring it to court because they can't afford it, not because they're wrong. Would you spend millions in court to win back the few thousand Nintendo is stealing from you?

However, I agree that if a company wants royalties, they ought to be paid trough and agreement using court determines guidelines. Again, what nintendo is doing is not an agreement, it is theft.

I also agree that Youtube's TOS need to be brought to court for many reasons not the least of which is this issue but there are thousands of other types of issues that need resolution. Again, not going to happen because money.

You fail to recognize that a Let's Play can also be a critique. Our debate ends there. TBs WTF Is serious ARE Lets Plays (watch them on mute), whether he wants to admit it or not.

You also fail to look at the issue in a case when a review and let's play use exactly the same footage with the same editing. As TB does, he uses a solid hour of game play for a review. If the only excuse is the content of HIS script, your argument doesn't work.

FYI, let's plays RARELY show the scripted storyline of a game and most mute the game audio or lower it to the point that it is almost in audible. Therefore these are not issues.

If you accept that a lets play of a multiplayer session is acceptable, then you agree with my position.

If a responsible lets player takes proper precautions to cut cutscenes and mute game audio, why would this not be okay? Most lets plays do this.

Why would a lets play of a puzzler be ok but not of an RPG? Seems like you're splitting hairs. A game is a game, laws don't apply to different game types. Last I checked copyright law is the same for a rom com as for an action flick.

As I mentioned, it is opinion vs opinion. I've outlined the opposing opinions and from either angle SOMEONE is doing something illegal.

Either you believe lets plays are illegally monetizing or Nintendo is illegally stealing revenue. There is no grey area there. IF there is a grey area, the. You must agree that Nintendos actions wrong due to the lack of a ruling.

I ask you CLEARLY, if Nintendo were to act by the law, why doesn't it issue court injunctions on the ad revenue or sue for unpaid royalties?

The very fact is isn't doing so is proof it isn't acting according to the law.

[neon]

I think we will just have to agree to agree on some point and disagree on others, I can clearly see the difference between a Let's Play and the Review using game footage, a lot of Let's Plays do not remove the game audio or cut scenes, at least the popular ones (from Youtube searches) seem to not (and there are even Let's Plays with no voice over), a Let's Play is also inherently different from a walkthrough which would remove stuff like story dialogue if favour of how to complete a level, ect.

 

For better or worse the Content ID type system, where copyright owners can take the revenue, is there and is tolerated by the community at large even if they do speak against it, Youtube is a global website and has enabled Nintendo to do this so they don't have to take the Youtubers to court in every country.

The only way to stop Nintendo and others taking the revenue is for the Youtubers to take Nintendo (or Google for allowing it) to a court (probably a US one).

 

I think it does depend on the game, you used an example of Pac Man, watching someone play Pac Man does not detract from then playing the game, but watching someone play the linear storyline of a single player game can do.

 

Anyway Nintendo is just using the tools Google gave them, as many others have and do, the licencing/partner scheme that Nintendo is setting up does seem the best of a bad situation for all parties (everyone gets paid), even if it is quite a convoluted way of doing it.

 

We will just have to see what happens in the future. But I think we both agree on more points than not.

[GamerDad]

7.7 You agree that Content you submit to the Service will not contain any third party copyright material, or material that is subject to other third party proprietary rights (including rights of privacy or rights of publicity), unless you have a formal licence or permission from the rightful owner, or are otherwise legally entitled, to post the material in question and to grant YouTube the licence referred to in paragraph 8.1 below.

As a form of video art, it does have that entitlement, same as a review or machinima.

Furthermore:

 

4. General Use of the Service—Permissions and Restrictions

    D.You agree not to use the Service for any of the following commercial uses unless you obtain YouTube's prior written approval:

          the sale of advertising, sponsorships, or promotions placed on or within the Service or Content

Nintendo's actions places it between youtube and the content creator thereby making it a reseller of advertizing.

 

 

6. Your Content and Conduct

C. For clarity, you retain all of your ownership rights in your Content. However, by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.

This means you own the rights to your voice, editing and game play SKILL. This is PROOF that Nintendo cannot unilaterally take your money. At best, Nintendo is doing EXACTLY THE SAME THING as it claims Youtubers are doing to it. It is claiming your editing skill and voice as it's own. That IS illegal if Nintendo thinks it illegal that let's Plays do the same to it.

 

 

8. Digital Millennium Copyright Act

B. If a counter-notice is received by the Copyright Agent, YouTube may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at YouTube's sole discretion.

Is that clear enough for you?

From Yotuube's very own site about fair use: https://www.youtube.com/yt/copyright/fair-use.html

 

 

Fair use is a legal doctrine that says you can reuse copyright-protected material under certain circumstances without getting permission from the copyright owner. Check out the videos below for helpful examples of fair use.

Examples: Criticism (which are contained in Let's Play, News reporting, and Remix (Mashups, parodies, etc)

For example, in the United States, works of commentary, criticism, research, teaching, or news reporting might be considered fair use.

Need I say more? Let's Plays ARE commentary. When a Let's Player says "Aww, how cute" or "Whoa, that was nuts!". It is commentary.

 

In the United States, fair use is determined by a judge, who analyzes how each of the four factors of fair use applies to a specific case.

Last i checked, Nintendo isn't a judge. It cannot unilaterally claim a Let's Play is not fair use. It MUST go to court.

Again, for the hundredth time, the legal route is to go to court and ask for an injunction. This is NOT what Nintendo is doing. Youtube even says so itself.

Youtube does provide guidelines for what fair use is but here is what Nintendo should LEGALLY be doing:

1) Have all games come with Let's Play clauses with guidelines to follow (how long, which segments, what to show, what not to show).

2) File an injunction request on those that don't follow above guidelines.

3) Go to Youtube with the injunction request when and IF it is granted.

4) Youtube can only act when an injunction is presented. It is not the police. It is not the law.

[Hashiyan]

Recently in Iran some kids got jailed for dancing to the "happiness" song. For some reason this reminds me about it in a sense. Idk.

[LAwLz]

-snip-

Okay first of all, do NOT add things in a quote. I looked up your quote and you have edited one or more of them. YouTube's terms of service do not say "Examples: Criticism (which are contained in Let's Play, News reporting, and Remix (Mashups, parodies, etc)".

When you quote something, especially a TOS or a law, you do not alter their wording, okay? Good.

 

 

As a form of video art, it does have that entitlement, same as a review or machinima.

Says who? You or some law? A review and a Let's Play are not the same thing mind you. One shows a product, and one reviews a product. Two different things. I am not allowed to show anyone a movie, but I am allowed to give my opinion on a movie.

It's the same deal here. You have to make a distinction between a review and a Let's Play.

 

 

Nintendo's actions places it between youtube and the content creator thereby making it a reseller of advertizing.

Are you sure Nintendo is doing this without the consent of YouTube? The tweet says that Nintendo will distribute the ad revenue along with Google, so I assume they have some kind of contract between each other.

 

 

This means you own the rights to your voice, editing and game play SKILL. This is PROOF that Nintendo cannot unilaterally take your money. At best, Nintendo is doing EXACTLY THE SAME THING as it claims Youtubers are doing to it. It is claiming your editing skill and voice as it's own. That IS illegal if Nintendo thinks it illegal that let's Plays do the same to it.

So if I upload a movie and do some minor editing and add my own commentary, I can upload it to YouTube? After all, I own my editing "skills" and commentary "skills", right? They can't make money from something I have created! With this new program, both Nintendo and the player makes money. I think that is fair since you are in fact using their IP to create something you're then going to make money from.

 

 

Need I say more? Let's Plays ARE commentary. When a Let's Player says "Aww, how cute" or "Whoa, that was nuts!". It is commentary.

Yep, and when I say "oh wow that was awesome!" when Godzilla smashes a big building I am making a commentary, therefore it is fair use to upload it to YouTube!

Just because something meets one or more of those criteria do not make it fair use. That's why it says "For example, in the United States, works of commentary, criticism, research, teaching, or news reporting might be considered fair use".

[Puddleuk]

As a form of video art, it does have that entitlement, same as a review or machinima.

Furthermore:

 

Nintendo's actions places it between youtube and the content creator thereby making it a reseller of advertizing.

 

This means you own the rights to your voice, editing and game play SKILL. This is PROOF that Nintendo cannot unilaterally take your money. At best, Nintendo is doing EXACTLY THE SAME THING as it claims Youtubers are doing to it. It is claiming your editing skill and voice as it's own. That IS illegal if Nintendo thinks it illegal that let's Plays do the same to it.

 

Is that clear enough for you?

From Yotuube's very own site about fair use: https://www.youtube.com/yt/copyright/fair-use.html

 

Need I say more? Let's Plays ARE commentary. When a Let's Player says "Aww, how cute" or "Whoa, that was nuts!". It is commentary.

 

Last i checked, Nintendo isn't a judge. It cannot unilaterally claim a Let's Play is not fair use. It MUST go to court.

Again, for the hundredth time, the legal route is to go to court and ask for an injunction. This is NOT what Nintendo is doing. Youtube even says so itself.

Youtube does provide guidelines for what fair use is but here is what Nintendo should LEGALLY be doing:

1) Have all games come with Let's Play clauses with guidelines to follow (how long, which segments, what to show, what not to show).

2) File an injunction request on those that don't follow above guidelines.

3) Go to Youtube with the injunction request when and IF it is granted.

4) Youtube can only act when an injunction is presented. It is not the police. It is not the law.

 

You seen very quick to blame Nintendo for everything here, but its YouTube who are actually breaking the law (According to you of course). You must understand that Nintendo is just a single company that uses the content ID, there are thousands upon thousands of companies who use it and who if they wanted and if YouTube let them do it could have their own affiliate program so they can moderate which content creators can earn revenue using their material.

 

Nintendo are doing a nice thing with the affiliate program they are letting legitimate content creators earn revenue since (Right now) the YouTube measure is flawed because it affects others and is often wrong. At least now Nintendo can mange their own list of content creators who are clear to earn revenue without having their videos flagged by YouTube. Its a win-win for all involved.

 

The below is from December 2013. 

 

- YouTube recently implemented a wide-reaching system known as “Content ID.” It automatically scans videos for audio and video content deemed “infringing” by those who own it. Last week, the system went into overdrive and thousands upon thousands of notices went out to YouTubers, mostly gamers, claiming their videos were in violation of copyright, and are owned by someone else.

 

- Content ID does not simply issue warnings to YouTubers. When a claim is filed, Content ID immediately starts diverting ad revenue from the video creator to whoever filed the claim.

 

 

- Often times, claims are filed by companies that have literally nothing to do with the game in question. Other times, claims are filed by developers who do own the material, but have publicly expressed no desire to pursue action against the video makers, yet the automated system has filed the claims anyway. Sometimes it’s a complete, convoluted mix-up, like a company who has licensed music to be used in a game, taking down a gameplay video of said game because the automated system believes the licensed music is being used improperly, which it isn’t.

 

- The system has dramatically more false positives than legitimate claims. Content creators have had their own self-created music and games flagged under the system. YouTubers have had their own in-person interviews flagged. Some have been punished for using videos widely identified as fair use, just because another organization (falsely) claimed them as their own content through Content ID.

 

- The entire Content ID process is not only flawed in finding infringing content, but operates under a “guilty until proven innocent” system. When a claim is filed, money will automatically be diverted into the pockets of whoever made the claim, and can only be reversed if the claim is disputed. YouTube, meanwhile, makes the exact same 45% revenue split from the video, now sharing it with the new Content ID claimant rather than the content creator.

 

- Disputing a claim is a lengthy process that can take up to a month. Many content creators have had dozens of their most popular videos flagged, and it will take them eons to get all the claims resolved.

 

- Now, under the new system, content creators must submit their videos to be reviewed by the Contend ID system for possible infringement before they go live. This can take anywhere from hours to days, and in a video game industry where release embargoes are down to the minute, not releasing a video on time can result in an enormous loss of revenue.

 

- The entire scenario is essentially like your boss coming to you and saying “I’m not sure the work you did for this past month is legitimate. I’m giving your paycheck to Jim who told me you stole his work. You can dispute this over the course of the next month.”

 

 

- Throughout all of this, YouTube and Google haven’t acknowledged they’ve done anything wrong at all. They’ve said nothing of false claims or the system they’ve built that declares video makers guilty until proven innocent by a lengthy, often convoluted appeals process. They simply tell everyone to dispute any incorrect claim without any acknowledgment the system is rife with false positives that result in an immediate loss of income for video creators.

 

- Lastly, there’s little content creators can even do to fight this system. In the video world, YouTube is more or less the only game in town. Most of the time, if you don’t have a presence on the site, you simply don’t exist. There isn’t a viable alternative to YouTube for these video game content creators to shift to, and so they’re stuck in this Content ID nightmare.

 

 

In summery just stop with the whole "Oh Nintendo this and Nintendo that". Nintendo are just one of thousands who have used the system just deal with it.

[GamerDad]

Nintendo can choose not to use the contentID system (which is illegal) and opt to act legally through traditional methods. It has a CHOICE.

You're right, a lot of it is Youtube's problem and Youtube is as guilty in this as Nintendo is. That said, Nintendo has a choice to act appropriately, and it isn't.

I can buy a gun (TOS) as a shopkeeper like Youtube - this is legal. I can share that gun with a client (Nintendo) in confidence - this is legal. That doesn't mean Nintendo has a right to use that gun on someone else even with my permission.

As has been said several times already - consensus has been reached that this is a matter for the COURTS. All I'm arguing at this point is that Nintendo should do exactly that.

[WanderingFool]

Nintendo can choose not to use the contentID system (which is illegal) and opt to act legally through traditional methods. It has a CHOICE.

You're right, a lot of it is Youtube's problem and Youtube is as guilty in this as Nintendo is. That said, Nintendo has a choice to act appropriately, and it isn't.

I can buy a gun (TOS) as a shopkeeper like Youtube - this is legal. I can share that gun with a client (Nintendo) in confidence - this is legal. That doesn't mean Nintendo has a right to use that gun on someone else even with my permission.

As has been said several times already - consensus has been reached that this is a matter for the COURTS. All I'm arguing at this point is that Nintendo should do exactly that.

 

I argue it isn't illegal, at worst it is infringement (And I shall discuss below).

 

To put it bluntly, the DMCA protects Nintendo in this case (To make things clear, I think the DMCA was a good concept, but a horrible law).  Anyways what Youtube effectively is doing is streamlining the DMCA process, which means to be illegal Nintendo would have to breach those terms.  With the DMCA there are a few steps.

*Going from memory here so excuse any faults*

1. DMCA notice given (Lets say Nintendo), and the provider must pull content off within a reasonable time (or face being liable)

2. If the user who is effected decides their work falls under fair use, or the claim was out right false (no copyrighted work was used), then they can file a petition....which Youtube does have (it is hidden in the backpages somewhere...I have seen it before)

3. I believe it was 14 business days for the Nintendo to file a lawsuit (after being contacted by Youtube).  If no lawsuit is provided then the video is re-established.  *I believe at this point there is no punishment to Nintendo for making the claim, even if there was lost revenue.  I think you would have to show Nintendo knew the content wasn't infringing*

4. If a lawsuit is filed then the video remains down, and Nintendo would be liable for damages if they lost.  If no lawsuit is filed the video is brought back up.

 

So I think Youtube, and Nintendo are within their rights to remove those videos, or gain profits from them *although if they do gain profits, they are liable for damages if you can prove them wrong....but it doesn't make it illegal*

 

 

Now another issue that I have seen you make, which only tells a partial story, is that it is fair use.  The problem with fair use is it can be very subjective, and fair use is a very gray area.  You quoted Youtubes site about fair use, but that is a basic overview of fairuse and shouldn't be taken as a black or white issue as that is why Youtube used might.  Here is an quote from the law

 

Quoted from the wiki on fair use http://en.wikipedia.org/wiki/Fair_use

 

 

 

    17 U.S.C. § 107

 

    Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

 

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

            2. the nature of the copyrighted work;

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

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

    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[4]

So I believe we can all agree that the first 2 points are valid, but the bolded portions are the bits I want to stress (If any of those points are deemed infringing then it is not fair use).  I am going to start with 4 first because it brings across the point that not all games are created equal *in terms of fair use*.  If during a Lets play or a commentary a major portion of the story is given away then it can be argued it is diminishing the market value (and it's advertisement doesn't work as an excuse, as all Nintendo would have to say was they were targeting people via the story).  For the third point though, we have a situation (as many games could be argued as infinite).  The problem with Let's play people, and to a lesser extent reviewers is many of them show the main portions of the game, story and all.  The last 2 points are the most subjective ones though, but in cases where most of the story learned by watching a lets play, then it is not fair use (and Nintendo would be within their rights to remove the media)

 

I guess a good example of this would be the teaching example I was told in school.  If a teacher writes a textbook with the intent of teaching students, it can not be photocopied and supplied to students (even though it is being used to teach).  Portions of the text could be used (like a page or two), but do it too often and it isn't fair use.

 

 

To sum up what I am saying, Nintendo is within their rights to use the automated take-down requests...if anyone were to fight it though, all they could do is get their video reinstated or the lost revenue.  Ultimately the fault isn't on the companies, but rather a poorly conceived copyright bill that handed too much power to copyright holders.

[GamerDad]

Okay first of all, do NOT add things in a quote. I looked up your quote and you have edited one or more of them. YouTube's terms of service do not say "Examples: Criticism (which are contained in Let's Play, News reporting, and Remix (Mashups, parodies, etc)".

When you quote something, especially a TOS or a law, you do not alter their wording, okay? Good.

I did not add anything tot he quote. You can't quote a photo. I merely wrote the text found on those image files. See for yourself.

Again, only a court can rule on the issue. That was my point the whole time.

Nintendo can no more monetize YOUR Let's Play than you can monetize it's game.

As I am constantly fininding myself repeating: only a court can rule on this. I am arguing Nintendo should take the issue to court. I am arguing Youtubers should take Youtube to court as well. The fact Nintendo is trying to do this outside the court system (and outside Youtube's TOS) is proof their argument can't hold up.

Nintendo is absolutely within their right to use contentID. It is also within their rights to break the law. There are repercussions to this, namely fines and jail time when proven guilty.

[GamerDad]

 

You seen very quick to blame Nintendo for everything here, but its YouTube who are actually breaking the law (According to you of course). You must understand that Nintendo is just a single company that uses the content ID, there are thousands upon thousands of companies who use it and who if they wanted and if YouTube let them do it could have their own affiliate program so they can moderate which content creators can earn revenue using their material.

 

Nintendo are doing a nice thing with the affiliate program they are letting legitimate content creators earn revenue since (Right now) the YouTube measure is flawed because it affects others and is often wrong. At least now Nintendo can mange their own list of content creators who are clear to earn revenue without having their videos flagged by YouTube. Its a win-win for all involved.

 

The below is from December 2013. 

 

- YouTube recently implemented a wide-reaching system known as “Content ID.” It automatically scans videos for audio and video content deemed “infringing” by those who own it. Last week, the system went into overdrive and thousands upon thousands of notices went out to YouTubers, mostly gamers, claiming their videos were in violation of copyright, and are owned by someone else.

 

- Content ID does not simply issue warnings to YouTubers. When a claim is filed, Content ID immediately starts diverting ad revenue from the video creator to whoever filed the claim.

 

 

- Often times, claims are filed by companies that have literally nothing to do with the game in question. Other times, claims are filed by developers who do own the material, but have publicly expressed no desire to pursue action against the video makers, yet the automated system has filed the claims anyway. Sometimes it’s a complete, convoluted mix-up, like a company who has licensed music to be used in a game, taking down a gameplay video of said game because the automated system believes the licensed music is being used improperly, which it isn’t.

 

- The system has dramatically more false positives than legitimate claims. Content creators have had their own self-created music and games flagged under the system. YouTubers have had their own in-person interviews flagged. Some have been punished for using videos widely identified as fair use, just because another organization (falsely) claimed them as their own content through Content ID.

 

- The entire Content ID process is not only flawed in finding infringing content, but operates under a “guilty until proven innocent” system. When a claim is filed, money will automatically be diverted into the pockets of whoever made the claim, and can only be reversed if the claim is disputed. YouTube, meanwhile, makes the exact same 45% revenue split from the video, now sharing it with the new Content ID claimant rather than the content creator.

 

- Disputing a claim is a lengthy process that can take up to a month. Many content creators have had dozens of their most popular videos flagged, and it will take them eons to get all the claims resolved.

 

- Now, under the new system, content creators must submit their videos to be reviewed by the Contend ID system for possible infringement before they go live. This can take anywhere from hours to days, and in a video game industry where release embargoes are down to the minute, not releasing a video on time can result in an enormous loss of revenue.

 

- The entire scenario is essentially like your boss coming to you and saying “I’m not sure the work you did for this past month is legitimate. I’m giving your paycheck to Jim who told me you stole his work. You can dispute this over the course of the next month.”

 

 

- Throughout all of this, YouTube and Google haven’t acknowledged they’ve done anything wrong at all. They’ve said nothing of false claims or the system they’ve built that declares video makers guilty until proven innocent by a lengthy, often convoluted appeals process. They simply tell everyone to dispute any incorrect claim without any acknowledgment the system is rife with false positives that result in an immediate loss of income for video creators.

 

- Lastly, there’s little content creators can even do to fight this system. In the video world, YouTube is more or less the only game in town. Most of the time, if you don’t have a presence on the site, you simply don’t exist. There isn’t a viable alternative to YouTube for these video game content creators to shift to, and so they’re stuck in this Content ID nightmare.

 

 

In summery just stop with the whole "Oh Nintendo this and Nintendo that". Nintendo are just one of thousands who have used the system just deal with it.

 

Nintendo's affiliate program would do NOTHING to avoid any of the above problems. ContentID will still flag false positives through the affiliate program. All it does is guarantees Nintendo gets a cut of something it may not even have a right to get a cut from.

Everything you wrote supports my argument so I don't understand what you're trying to convince me of.

[WanderingFool]

I did not add anything tot he quote. You can't quote a photo. I merely wrote the text found on those image files. See for yourself.

Again, only a court can rule on the issue. That was my point the whole time.

Nintendo can no more monetize YOUR Let's Play than you can monetize it's game.

As I am constantly fininding myself repeating: only a court can rule on this. I am arguing Nintendo should take the issue to court. I am arguing Youtubers should take Youtube to court as well. The fact Nintendo is trying to do this outside the court system (and outside Youtube's TOS) is proof their argument can't hold up.

Nintendo is absolutely within their right to use contentID. It is also within their rights to break the law. There are repercussions to this, namely fines and jail time when proven guilty.

 

Adding on commentary doesn't prevent Nintendo from claiming it is their own.  And just because you "own" the commentary doesn't imply it has the same weight as owning the game being played.  When a commentary is built around another company's work, you are still using a copyrighted work in production of an work.  Also as I stated commentaries do not does not automatically mean you have fair use.  So what gives Nintendo the right to claim ad revenue over your "work"?  Well it is simple, your "work" is actually a violation of Nintendo's rights, or that Nintendo's work has more value in it than your commentary (after all you are commenting on Nintendo's work with the intent to profit).

 

With this said, there might be false positives, but with the wonderful DMCA that really doesn't matter as much...and it is up to the uploader to submit a counter claim, and then their video could be restored (but that 10 business days put out by the DMCA is horrible).  So I would say this situation should boil to "blame the law not the companies"

 

As an fyi, it is up to the courts to do the final ruling of whether a work falls under fair use or not, but the DMCA is effectively allowing an injunction on the work until it has been proven to the fair use (again, there are processes in place as detailed in my previous post).  Nintendo should not have to take this to court (unless the person claims fair use, but at the point if it goes to court the person claiming fair use better be sure of it because they become liable for all the damages).  Also in the US it could mean if the courts rule it isn't fair use, you could end up paying a very large chunk of money for the infringement (for punitive damages).

[Imaginaerum]

Neon, for once I agree with you.

Youtubers won't bring it to court because they can't afford it, not because they're wrong. Would you spend millions in court to win back the few thousand Nintendo is stealing from you?

Why do people keep saying this? A 14 billion dollar income in 2013 and it's because they have no money? Come on now, they would need. what. two lawyers fresh out of law school if it's so easy to prove, which is all this thread has been about.

[GamerDad]

Why do people keep saying this? A 14 billion dollar income in 2013 and it's because they have no money? Come on now, they would need. what. two lawyers fresh out of law school if it's so easy to prove, which is all this thread has been about.

You're kidding right?

Nobody on Youtube makes 14 billion dollars. Youtube itself makes 14 billion. A Youtuber is not Youtube.

You take Nintendo to court in the district system. Someone wins. Then the loser appeals to the circuit court. Then the loser appeals to the supreme court. That's IF you start at the federal level. If you start locally, you're looking at another 5 steps to go through.

The take someone to court over the copyright system and contract disputes (Yotuube's TOS), you want the best you can get - not an amateur with no experience. That's going to cost you 500$ an hour.

Multiply that by 5 years at best to get through the entire system. Trust me, it'll be much longer. That means it costs millions. It'll cost even more if you lose.

[GamerDad]

Adding on commentary doesn't prevent Nintendo from claiming it is their own.  And just because you "own" the commentary doesn't imply it has the same weight as owning the game being played.  When a commentary is built around another company's work, you are still using a copyrighted work in production of an work.  Also as I stated commentaries do not does not automatically mean you have fair use.  So what gives Nintendo the right to claim ad revenue over your "work"?  Well it is simple, your "work" is actually a violation of Nintendo's rights, or that Nintendo's work has more value in it than your commentary (after all you are commenting on Nintendo's work with the intent to profit).

Let's assume you're right. Nintendo now monetizes YOUR voice over it's footage. It still can't do so legally without your permission. It still has to pay you as a voice actor and you have to sign a release form allowing Nintendo to monetize and distribute your voice track. This is the law. I know this because I work in the film industry.

Nintendo is now in the position of the Let's Player. You can file a DMCA notice against Nintendo. Oh wait, Youtube doesn't let you do that!

DMCA serves to protect copyright. Your voice is a copyright to you. Nintendo has no legal right to monetize your voice. You therefore can counter DMCA Nintendo for monetizing the clip. If Youtube's TOS were truly legal, the Content ID system would strike advertizing completely and no one would get any money from the clip until the issue is resolved.

[OozyGorilla]

This argument is still going on? At this point, all anyone is doing is re-arguing the same points over and over. It's very obvious we've reached the point where the only thing you can do is concede that your point of view differs from the others. There isn't any more points to make until a court sets a precedence.

[Imaginaerum]

You're kidding right?

Nobody on Youtube makes 14 billion dollars. Youtube itself makes 14 billion. A Youtuber is not Youtube.

You take Nintendo to court in the district system. Someone wins. Then the loser appeals to the circuit court. Then the loser appeals to the supreme court. That's IF you start at the federal level. If you start locally, you're looking at another 5 steps to go through.

The take someone to court over the copyright system and contract disputes (Yotuube's TOS), you want the best you can get - not an amateur with no experience. That's going to cost you 500$ an hour.

Multiply that by 5 years at best to get through the entire system. Trust me, it'll be much longer. That means it costs millions. It'll cost even more if you lose.

WAAAIT WAIT

You said YouTubers

 

I read YouTube. Whoops.

[GamerDad]

OpzyGorilla, I've already conceded and repeatedly states that consensus was reached.

[Hobox]

Actually on the back of every video game is a message that states "Unauthorized public performance is strictly prohibited." They are in every right to do what they are doing. I don't agree with it and I don't want them to do it, but it is their right because of this.

[ohitsluca]

Youtubers or Nintendo?

Nintendo

[Mooshi]

This thread is still alive? Are let's play videos really this important? :mellow:

 

My simple take is this. If it's free advertisement as claimed, then the uploader wouldn't even try to capitalize on it if it were this simple an issue. Guess what? it isn't. This is LPers whining they are having a harder time getting checks they don't deserve for doing nothing special. Anyone can talk and play a video game. If they are getting /any/ capital on that, they should be grateful they are even able to do this. If the actual content creator gets upset, they have no right to contest it.

 

If you took someone's car, rented it out, pocketed money on the side and then had the owner get cross with you and demand access to your funds, would you really have the nerve to say they are the ones in the wrong? I don't think so. See this through Nintendo's perspective. You're making money off their product that took many man hours and funds to bring to light. I'm sure they wouldn't care if the person who Let's Played a Nintendo game was doing it for fun, no money. But the moment a popular channel does this for profit, you're on your own. If a content creator doesn't like this fact, comply, not be a jerk at the request by being immature and bad mouthing the company you're making money off of. Many channels aren't massive, but someone like Pewdiepie who gets ungodly Youtube dosh for screaming over someone else's content..I hope more companies step in to put an end to this tomfoolery.

[GamerDad]

Please read the thread.

Your first paragraph also applies to reviews. It isn't a valid argument.

Your second paragraph ignores the issue. The problem isn't Let's Players making money off Nintendo, it's Nintendo flipping the switch and making money off of your voice. Yes, for some the draw of a Let's Play is the game, but for most, the draw is the commentary itself.

The issue is if a Let's Play can't monetize off Nintendo, Nintendo equally cannot monetize off a Let's Play. This is why a court must rule n the issue.