The YouTube Snake Is Eating Itself

@darji: Unfortunately for everyone involved, how they handle these things is entirely up to Google to decide.

@humanity: No arguing here but some or even many of them are just fakes. for example someone got ID claimed by a company called Valve which was not even Valve. Some people do not even know anything about copyright laws but still just claim it.. For example a musician who composed some music got claimed by a Youtube Channel group. And as soon one video is claimed people do not get revenue from it and it does not matter If its legit or not. So what could Google do?

For example if a Company tries to claim something check it beforehand if its legit or not and then put it in the automatic system.

The fact that copyright laws are somewhat outdated by this point doesn't help the situation, but you will almost never see the general public calmly accept cold hard facts when it comes down to a dispute between "big evil companies" and "independent entrepreneurs." This is business, and it always has been and always will be. You hear a lot of talk about how "moral" some company is or isn't but we all know that in the end it's not about being immoral or moral but about making sure the business you're running is profitable. Every successful company adheres to this logic or else they wouldn't be successful for very long. YouTube makes a ton of money from these banal Let's Play series that millions watch - but at the same time YouTube isn't going to risk million dollar lawsuits in order to protect the creative integrity of their money cows.

As a former Blockbuster Corp guy, I can explain a much more broken system along with the horribly backwards business models and customer unfriendly policies that led to the company's demise. Not trying to defend Google here and I don't believe this will kill Youtube as a service (maybe put a dent in the bottom line). Just pointing out that even when companies that seem to have massive influence in an industry, and an opportunity to implement business strategies that would benefit themselves, their partners, and their install base (in this case content creators and users)... They tend to shoot themselves in the foot.

@sergio: Yes it does because many many many people who do reviews, who even get review copies of games are getting flagged for their videos. Some who do first impression videos are getting flagged as well. So basically these are quicklooks. Totalbiscuit also do these "quicklook" style videos and if he were not managed he would get the same ID claims. The stuff that get most claimed are in fact trailers because these are the same. Gameplay videos like let's plays are transformative and besides cutscenenes everyone plays differently.

Yeah, you're totally right. And I was agreeing with you too, although I can see how it didn't seem like that. I think this thread put me in rant mode. Sorry! :)

Licensing and transferring rights (which is what you're proposing) are separate things, and they remain that way for very simple, logical reasons.

Say I'm a rap man, and I license my new got jam to be used in a game. I allow them to use that music in their game with the understanding that people who buy the game will hear my song. Then, the makers of the game give that game away for free, and make it clear that they're okay with anyone uploading any part of it to the internet. So someone uploads a clip, where the only audio is my hot single. And because it's all digital, folks can download that clip, make an mp3, and distribute it everywhere. And they've done nothing illegal.

But to me, everyone can hear my song for free, and besides the relatively small amount of money I got from the game, I'm seeing zero revenue from my created work.

That's a shitty situation for the artist, and things like that are precisely why you license content, but NEVER give the licensee the rights to do other things with it.

Not all of the things you parenthetically list under fair use constitute fair use on their own. As stated before, the current system is not meant to differentiate things in a clear cut manner. Some 100% reproductions of works are considered fair use based on the context that they're used in, while a few sentences that get to the gist of the protected work may be found to be infringing. Uploading all cutscenes with commentary can still be infringing, even if you claim to be critiquing the work for research purposes.

This probably has to go to court and hopefully we get a change in the law that dictates how the copyright transferal works. This is mostly a music issue since it is the easiest aspect to Content ID. I think there needs to be a clear line drawn between music added to content and music that was recorded with the content.

If the Game Publisher licensed the music or paid a composer for original composition, that music is just another game asset and it is up to the game publisher to decide to dispute use of footage of their game. No other third party licencing deals should be in play, the publisher owns the right to use the music and they should be able to transfer the protection of that right onto footage of their game. If someone adds other music to the footage that wasn't generated by the game that is another matter.

If this battle doesn't end cleanly you start getting into really dangerous territory. What if that football player or car manufacturer says that their product was only licensed to be featured directly in the game that right doesn't extend beyond that? What if someone like AMC starts making claims that they own the exclusive rights to The Walking Dead in non-interactive video form?

@gnatsol said:

Right. The major problem is the companies who EXPLICITLY state that you're free to use and monetize their content (say Valve) whose content is still getting copyright claimed. And whether a company likes it or not, fair use (criticism, comment, news reporting, teaching, scholarship, and research) should be allowed, but the current system does not differenciate between fair use and just uploading all cutscenes without comment or whatever.

I highly doubt any of this will lead to the downfall of Youtube as some here would like to think or wish. There are more people beyond Let's Players who continue to use Youtube because it's free and relatively easy to use, and they would continue to even if all of the monetized Let's Players were to migrate to something else. The average user isn't monetizing, and if their video gets flagged, they're likely to simply pull their video, let it be muted, or change the music they're using. They'll most likely continue using the service.

There are few competitors who allow video uploads to be monetized. If they are based in any country that upholds copyright laws, they too will choose protecting themselves from copyright claims over letting somebody upload potentially infringing material.

About the only thing that one can do to avoid this type of auto-copyright claim is to run their own web site with their own streaming video that doesn't rely on another service. Even then, you're not guaranteed to not get a take down notice. Only this time, you'd have to deal directly with the copyright holder instead of the service you're using doing it for you.

What a fucking mess. I hope somebody else can come along and fix this before YouTube destroys itself.

@joshwent: Oh, I was actually agreeing with you. I just wanted to clarify that fair use isn't clearly defined by design.

@acornactivist: Or it will just take people of our generation to get into seats of power in companies. It's already starting to happen. I mean heck, even in the last decade game devs probably wouldn't have been as upset over other people using copyright law to block lets players and so forth (had they existed at that point) because the people at the top of those businesses would have been like the Tunecore people up there. The idea that you WANT your stuff to be easily accessible, to be remixable and to be used creatively by other people is a pretty new idea, and to me the silver lining in all of this is that it seems like, where it matters, our 'generation,' our viewpoint is winning. I don't think, least there hasn't been a big story yet, of any game devs vocally standing up and saying lets players are losing them money or anything like that, and in fact a LOT of them (a surprising amount truly) are acknowledging common sense and saying that it brings IN money. But the idea of your creative work, being used in someone elses creative work, somehow netting the original creator money is something that can only happen in the world we have today.

Totally correct. What I meant was more that people featuring copyrighted content in their videos at least acknowledging that they are using other people's content and that they'd have to make a case for fair use.

That term is being thrown around in this thread as if it means, "Hey, these YouTubers aren't hurting anyone, just chill out Mr. big evil corporation and let them do their thing!", which completely ignores all of the actually important protections that copyright law affords to all of us.

It's these same laws that everyone is railing against here, that stop me from taking the source code and selling VVVVVV for $0.10. Or maybe taking videos from someone's YouTube channel that they make money from, and uploading them all myself so people could avoid the ads.

As you said, these are all just really unique case-by-case situations, and while that doesn't make as sexy an article as, "YouTube loves greedy businessmen and hates all the people you like!", it's vital to realize that we all have to work with the laws that protect us, even when we're on the frustrating side of the situation.

Interesting read even if I don't really know what to think about all of this. But I'm glad to see my confusion is shared by every single party involved. So it's not just me.

Another conflict shrouded in hyperbole

This is just the latest blatant example of how companies do not understand how the internet works. It's not like any other market environment, and the rules used to govern other environments simply do not function here. I honestly think it's going to take something huge, like a YouTube, or a FaceBook (which is WAY bigger than MySpace ever was), to collapse under its own hubris, for people to acknowledge that it's different and change the way it's dealt with.

The next 5 or 6 years are going to be crazy.

The people that actually create the games do get paid though, they get paid for creating the game. They get paid more when their game sells more. I'd say that, even if you think they're "tards", these content creators on youtube have a pretty big influence on their audiences and have found a pretty great way to help sell games. They deserve to get paid for promoting games in whatever way they decide to promote games. It's a real job that people have been able to create a living doing.

The fact that average people can now spread the word about video games so quickly and rapidly and also make a living doing it is amazing. stamping something like that out is backwards. It shows a lack of understanding the actual potential of the internet.

They're both doing real work, it was never one or the other. A youtuber does their job and gets paid, a game creator does their job and gets paid.

The thing is, fair use isn't really intended to be clear, but decided by a court, where some precedents may be set or changed. I could easily see Let's Play videos of DOTA, or Starcraft 2 (multiplayer and not the story missions), or sports games to be considered fair use, while games with stories or fairly linear gameplay not be fair use. At least that's my opinion, and I haven't seen any good arguments presented by Let's Play advocates.

If a company gives permission, then it's clearly fine. If they don't, it's probably not. Blanket statements like "None of them are illegally using copyrighted content" aren't helping this problem, because some of them absolutely are.

If I put Star Wars up on YouTube with my own commentary, I don't think anyone would be shocked if Lucasfilm claimed that it wasn't a "transformative work". Copyright is meant to protect the revenue owed to the creator of the content, and displaying that content in a way that can result in them loosing revenue is the most basic form of copyright infringement.

To be clear, I actually disagree with the idea that let's plays and stuff have a significantly negative effect on game sales. But when, say, there's a story heavy game like Beyond: Two Souls that someone plays and uploads for anyone to watch, the copyright holder is clearly within their rights to ask for it to be taken down if they think they are loosing revenue because of it.

The best way to make progress in this situation is to be as clear as possible about what's legal vs. illegal. Acting like this is just a situation of big bad greedy business vs. the little virtuous YouTube heroes just avoids any real solutions.

It doesn't matter if "most companies" are fine with Let's Play videos, and many are OK as long as it's not monetized, but that doesn't mean they are fair use. The original content creators have given permission in those cases, but that doesn't matter in the larger picture. My friend may give me permission to enter his house without knocking, but that doesn't give me the right to go into everyone's house without knocking.

The reason I don't think they'd win a case is because I don't think they pass all four factors used to determine fair use. They're work is clearly derivative and not transformative in most cases.

This response makes no sense. As much as I like GiantBomb or you like other personalities, that doesn't determine whether something is fair use. GiantBomb earns a living from this web site and not solely on Youtube. With the exception of their endurance runs, which may have gotten the approval of their respective copyright holders after the fact, they don't tend to present games in their entirety. Their quick looks are closer to fair use than a let's play video.

burn this motherfucker down pookie!

The next Endurance Run is never coming because it's illegal, guys.

@crippl3 said:

Ok call me stupid. It's fine as I've been trying to correctly interpret all this with the meaning of the Ouroboros in mind but I can't seem to perfectly figure it out. What do you exactly mean in this situation? :)

Great article, Patrick! Thanks for wading through this mess and writing about it in a concise manner. These copyright infringement claims are such a headache to break down.

so like GiantBomb?

People watch these because of their personalities not because of the game itself. That is the huge difference. The one with high viewer numbers are the ones with personality while no commentary let's play get these 2000 views or so max.

Most of the people generating hits and ad revenues on Youtube are people doing "Quick Looks" and I doubt those qualify as fair use work as they are not transformative. Sure Youtube shouldn't enforce laws without due process and content owners recognize those videos is good for the industry, but ultimately Youtubers have to realize that earning a living from Youtube is like working as an employee, they have a boss and if they want to control their content they'll have to start their own website, by themselves or as a community.

On the plus side, this means a crackdown with extreme prejudice on those 'Anime Music Videos', right? So more power to Content ID.

Why not? Most Companies are totally fine with let's plays. Hell some developer/publisher even give early access to some Let's players so they can play them before the official release. Happened for example with Final Fantasy XIII-2, Kingdoms of Amalur, Deevil May cry etc.

Wait. So none of them are performing copyrighted works without permission?

In the end it's up to the courts to decide if a case ever gets there. I don't think the vast majority of Let's Play videos could win a case though.

@hellbound: Also this.

@thedarkon3 said:

"It sucks that it is hurting the gaming community so heavily at the moment, but it was a messy situation that needed to be resolved. For every legitimate video this is hurting, there are three or more videos using rights without permission and profiting from such uses."

Brandon Martinez. 2013

"Let there be no resentment if we bump someone with an elbow. Better that ten innocent people should suffer than one spy get away. When you chop wood, chips fly."

- Nikolai Yetshov

Youtube was a great place before they started paying people for videos. Seriously, just think about it for a minute. A lot of these channels existed before they got paid. Nigahiga, etc. It was pretty good quality content. People made videos because it was a creative outlet. It was fun, fairly easy, and a bunch of other good adjectives. Then youtube started paying these people and they got greedy. Content became less about doing it for fun, but doing it for a profit. Now all we get are billions of annotations and constant "PLEASE RATE COMMENT AND SUBSCRIBE!!!!!!".

Whether you agree with how much power copyright holders have or not, seriously think about what youtube has become with all these monetized channels. The quality has gone down and most people have become just annoying. Also, the arguments of "I can't do this anymore if I don't get paid" is pretty shitty. I say shitty because if you existed at a time before monetization, your reasons for making videos were for pure entertainment. Now, you are just admitting to making them for pure greed.

Anyone can make a video. 13 year old kids were putting up just crap just because they wanted to become "Youtube famous". If this stops all that, I can't be unhappy. You can find anything you want on youtube, but you have to really look through a lot of hot garbage to find something even worth your time.

This is all just disappointing. Big business sucks. Youtube sucks now. I think that we can all agree on.

P.S. You would think with how big youtube is, they could actually make a decent website design. Heh.

Right. It's exactly the same except for the part where they've built an actual website where they do actual work on top of the silly talking on top of videos stuff they do. So not at all.

Why do you think these youtubers do not have their own websites where they can host their own videos and monetize as they see fit without having to compete with sneezing pandas and robots that are out to fuck them every second of every day? Do you think it's mainly the lack of talent, or the fear of doing actual work?

Either way they are using free tools, free hosting, playing games that they did not make and pretend that the fact that some companies think that they have as much right to ad revenue from the "performance" as they do is ridiculous, which is plainly is not. One of the parts of the equation takes dedication, skill and real craft and the other takes a $40 mixamp and half decent mic and the ability to talk. Some are almost coherent, many are not.

None of them are "illegally using copyrighted content"

@kaiserreich: yah like a lets play of vvvvvv

Greedy out of the times idiots sweeping everyone under the same rug as usual. I really hope all this crap gets sorted eventually. Some of the best youtube "personalities" are being harshly effected by this nonsense and the world would be a shittier place without them.

AngryJoe for example I fucking love his reviews and most of the poor guys video library has been flagged because of this bs.

Google: Be evil.

I know there are significant issues with moving your audience and the amount of traffic these guys need to make a living on this stuff, but it sounds like they're going to start having to move off of YouTube.

Great article, and it looks like it's going to take a very in-depth look into what it is that needs to be changed in copyright law as we know it and translating it into something that can be made widespread in order for everyone to get behind it, so that we can all have a single voice in order for this to be changed.

I might be getting out of my depth here, but perhaps a detection system could be created wherein variations in the original sound file provided for Content ID could be used to determine if the content is being used for fair use? Of course, there are a lot of flaws with that kind of thing, but it would at least rule out all the 'copycat' channels that simply put a song on, with a picture.

As someone who has wanted to get into the Let's Play scene for a while, as well as use it as a platform that could spark some good debate, the threat of even showing a clip of a trailer in order to illustrate my point (which, let's be honest - ease of reference is kind of half the point of putting something into video rather than writing it) puts me off the whole thing if it means that my video could be muted or even taken down.

I think this is going to be a battle that will barely have reached any kind of official court in 2 years. I guess this is the turbulent era of 'the future' where all this technology has grown separate from one another and it's all trying to get along. Here's hoping that the people who put their lives into their passions aren't the casualties for it.

Also, that title. Goddamn. I'm still getting over that wordplay.

Goddamn.

Funny because you could really say that about most quick looks and most premium content on Giantbomb itself, but with higher production values. Without that, are we left with just trailers with a one sentence snark line, and a few articles and reviews a month?

@somejerk: Youtube's owned by Google. If any company had enough influence to change copyright law for the better, it's Google. But no, they'd rather duck being sued.

God damn do I want to see Youtube fall. Will it happen? Probably not. But oh how I want it to.

Destroy all you can't control.

Control all you can, even if it destroys yourself.

A long "v"; no vowels. It's like Xillia or Vill Laimbeer, I say it like I'm gonna say it.

This all makes me angry, no common sense around these days

Possibly, but that also puts an additional burden on Youtube that they may not want to deal with. In the end, Google is providing a free service with Youtube. Requiring a burden of proof from claimants means Google would also need to hire people to look into each claim that is made, reducing their own profits just so someone else can monetize on their free service. That's something their stockholders aren't going to go for, so they have Content ID in place.

Claiming fair use on videos of video games on Youtube is not a gaping chest wound that is copyright law.

@johnyliltoe: "But taking ad revenue from the videos that I edit and add commentary to? They are now infringing on MY copyright, making money off of MY work without my permission."

Editing and adding commentary to a Let's Play video may be considered a derivative work, in which case, you don't have a copyright. Also, they aren't "infringing" on it, as they're not taking your work and reproducing it, distributing it, or creating a derivative work without your permission.

Actually, we don't. Fair use is fair use as determined by any court case dealing with it. While one can make an argument for updating copyright law in terms of the life of a copyright, fair use doesn't really need to be updated. Just because some might want to claim that talking over a video of them playing a video game constitutes fair use, doesn't mean it is, and certainly doesn't mean that we need legislation to protect Let's Play videos.

While some people do have permission from the copyright holders, that isn't always the case, so I would question monetizing off of someone else's work as "innocent intentions."