The battle between YouTube, video game creators, and content uploaders took an interesting turn with Nintendo. GameFront reports that Nintendo has begun issuing "Content ID Match" claims to YouTube for users' Let's Play videos..
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This issue isn't just lost revenue. The YouTube practice itself is outrageous: e.g., If you play a snippet of EMI-distributed copyrighted music in the background of your baby shower, the current YouTube Content ID setup allows EMI to run ads against your baby shower. It's the same story if a not-for-profit critic (a fan, an academic) includes gameplay in a video. Even though both situations are legally defensible as "fair use" in the US, because YouTube is in bed with the content creation companies your next birthday party video hosted there will feature unwanted advertising.
Demonstration #142 that large game publishers consider fans to be their worst enemies.
"Prolific YouTube Let’s Play producers have protested the move saying
that Nintendo’s actions denies them the ad revenue they deserve for
Internet in "people get butthurt about not being allowed to make money off other people's content" shocker.
Also, there's an enormous difference between "a snippet of gameplay" and "the entire game"; Nintendo is going after the latter here. They don't care if you post a three-minute video showing off your best time on a stage in NSMBU, but they're fully in the right to take ad revenue from a video series detailing a playthrough of the entirety of Luigi's Mansion: Dark Moon.
These videos, for the most part, are transformative and Nintendo's copyright over the game should not even apply. They are taking their gameplay experience, with their commentary, their editing, and making a video product that is attractive to viewers. Watching a Let's Play does not mean you have experienced the game as it would if you had watched a movie, or someone else watch a movie.
This is a very shortsighted move on Nintendo's part. They are going to end up alienating a lot of their most hardcore fans, the people who make these videos, and of course this action will directly lead to many of these people not making video's of Nintendo's games. Why would they put in the work, and it does take hard work, if they won't receive the ad revenue?
Perhaps though this is what Nintendo wants. Maybe they think this will push people to share these types of videos through their Miiverse platform. In any case I believe this was a really boneheaded move on their part at a time they can't afford to be making boneheaded moves.
It is not other's people content that makes the money. They are not just uploading straight gameplay videos. They are editing them, providing color commentary, these videos are popular for the work and content the creators are putting into them, not the scenes of gameplay.
The gameplay is of course a big part of that, but through their commentary the original work is being transformed and in almost all of these cases the uploaders should have "fair use" protections. Generally, use of a work to comment on the work itself somehow will qualify as transformative.
"Fair use" doesn't mean that you can take as much of someone's content as you want and add something to it, and expect protection. There are actual defined situations under which fair use applies, and this is not one of them.
Why would companies discourage users from advertising the companies' products?
And yet, the latest development in hardware manufacture is set to focus on sharing such content. Hmmm... vermicelli in a can, anyone?
"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:"
Let's play is commentary. So how is it not covered?
You've conveniently omitted the relevant portion, which discusses which factors are to be considered when determining fair use.
There really isn't a publisher that isn't a big fucking cunt, is there?
A let's play person could likely fight a company on grounds of fair use. They'd probably lose though. I mean, imagine if you took an NFL game, removed or lowered the original audio, and then ran your own play by play. Think you could get away with that? Now games have some gray areas, in that what happens on screen is at least partly due to your efforts (ie no two let's plays would play identically), They could maybe win with a sympathetic judge, but it's unlikely.
Still, this is bad business for Nintendo. They might make a few bucks on current content, but nobody's going to make future content using their games, which means tons of lost free Nintendo advertising.
People buy a license when they get a game. Thats the way it was and is. What they FEEL entitled to and what they FEEL is the benefit for the game and/or company is irrelevant.
Should it be different? Probably, i think IP law is the cancer of creativity. But bitching and moaning and pouting on the internet does not change anything.
As long as we buy the games, vote who we vote companies and politics will only budge in our favor until we again, only keep complaining.
The whole debate about what should and what could and whats right and wrong is redundant and leads to nothing but frustration on all sides. Youtube is profiting from all involved parties, and as such has no interest whatsoever of one side winning over the other.
That this whole shit would explode as soon as they would have to find a way to monetize it was clear from the get go. Will only get worse.
Copyright law needs radical change.
Urthman, please reply to this.
So you're saying you'd only watch a LP if you'd firmly decided not to buy the game? So not a lost sale for Nintendo.