Nintendo Enforceing Copyright Claims on Let's Play Videos

Well if anyone now needed a reason not to cover Nintendo games, here it is... well done Nintendo

well first of all I don't watch totalbiscuit because he's super annoying.

second of all, does that really matter? How does a LP video (specifically a video with commentary) inspire you to buy a game where a regular non commentary run would not?

and the only full LP's that have inspired me to buy a game is games that do not have a story or are (near) infinitely replayable as a rule.

Many publisher even EA Capcom Square Enix and Co see huge potential in this free Pr and it will affect Nintendo in a long run because you will see a lot less LP's of Nintendo games from now on. So less exposure means less attention of their products.

That doesn't really prove or disprove the point though. That's you specifically, that's like saying a certain advertisement didn't inspire you to purchase said product. The fact remains though that you saw the ad and were made aware of the product the same way a LP or somebody streaming Starcraft or DOTA makes you aware of those products and might inspire you to buy them. It might not but at the end of the day Nintendo or Valve or Blizzard isn't losing anything by you having seen them.

@thesoutherndandy: but we're not talking about streaming starcraft or DotA. Those are games that literally never have to end and if they do, that decision falls to you.

Take, for example, an LP of spec ops: the line. I'm never going to buy that game (well maybe when it's like 5 bucks or something) because I saw the story, which is the main reason to play the thing. Nintendo doesn't exactly have infinitely replayable games.

Because otherwise I would have not watched. it. Take La mulana for example. Without some guy I recently watch playing this game. I would first of all never really heard of it and lastly not have bought it.

I did just to support the developer XD

@darji: I never said there weren't people like you out there, I'm just saying that pretending that you are the example and not the exception is, well, hard to prove.

I think there's this assumption that people weren't aware of a product until they saw the LP. I'm sure it happens with some games, particularly with small, indy games, but I think it's less likely with Nintendo games. Now there may be people who are aware of a game, then seek out a LP to determine if they want to buy it, but there is no real way to gauge how many sales are driven by a LP. It's just anecdotal claims unless they are using an Amazon-affiliate link to the game.

If true, it certainly reenforces the rather stark *disconnect from the real world* vibe I'm getting from everything Nintendo has been doing regarding online (and otherwise too). I don't see what Nintendo has to gain from going after Let's Players, other than a whole lot of bad press.

Seeing how Sony, and likely Microsoft too, do embrace the Let's Play culture natively with their future hardware, this development seems even more outlandish. Nintendo was always a little odd, might just be the ongoing failure of the Wii U to establish a sustainable foothold in the market put them right over the edge - because this is plainly insane behaviour.

I know people whose jobs are creating LPs, especially of old NES, SNES games.
It has paid their bills and made them a lot of money over the years and now they have to go find another job.

Pretty scummy but I guess Nintendo has the right to do that.
It's kinda on par with what SEGA was doing.

Not really. Mine craft only got so big because of Let's plays. Dozens of Indy games only got popular because of this free PR. Like Game Dev Tycoon as newest example. ManvsGame a popular twich streamer recently promoted a kickstarter game called Chasm that almost failed but because of his stream they got over 12k in a few hours and made this game a reality. Kingdoms of Amalur got a huge sales increase after Total biscuit playing it first on stream and then on youtube.

I only wish all companies do this and the whole "play 10 minutes of a game while talking about doing laundry" phase of making money goes away.

Another example is one from my own personal experience, I watched the GB persona 4 endurance run. The Persona games are not games I'd ever go out and buy because from appearance and from what I've read, chances are I wouldn't really enjoy them at all. But after watching the endurance run of Persona 4, I went and got Persona 3 for PSP and am thinking about getting the fighting game when that comes out in europe... had it not been for that endurance run I wouldn't have bought Persona 3 and I wouldn't be even thinking about investing it the fighting game.

LP's/Endurance run's help spread word around that "hey this game is kinda awesome" weather or not you buy the game they are LP'ing doesn't really matter, its the free publicity that it generates and awareness of a brand you might not be willing to spend money on, but sure will check out a free video.

It's short sighted by Nintendo to think that they should be able to control these and will only serve to alienate people, which isn't something they can afford to do.

There is one logical explanation: Nintendo just doesn't know how the internet works, period. That would explain so much.

It's all based on friend codes right?

No they don't and for an example like that where the story is the thing I can see a LP changing your decision to buy the game. The thing is though, if a person has a strong desire to play a game, they will because they know watching a LP of a story based game will ruin the experience, and that's also a specific example. When you're talking about Nintendo products as a whole, the type of game isn't important, it's the fact that LPers are giving Nintendo free advertising. Regardless of it being Luigis Mansion, Ocarina, Smash Bros, it doesn't matter, it's a ton of eyes on Nintendo games. That's why even though every company could clamp down on this because they're totally within their rights to, the majority of them don't because they know what they get out of it. I've seen a bunch of devs on twitter today saying how they get more business from LP's then big press outlets.

Nintendo being clueless about how the Internet works is nothing new, that's been their story for years and it continues to be, this is just another example of that. Yeah they are legally within their rights to do it, it's not shady or skeezy at all, it's just dumb.

@darji: again, all indie games besides amalur and I severely doubt the 'big' bump that TB gave amalur was really that big.

I would argue it is not, because, unlike a movie, or a book, a game is dependent on the player, and so combined with the commentary, the different play styles and techniques, one person playing the same game can differ completely from another person playing the same game. Unlike most other media.

So I would argue the opposite. That it is legal. Because it is so player dependent.

It made it to a topseller on steam for that date. Another example Dragons Dogma which became hugely popular after several people playing it on a live stream. Same with Dark souls or Square Enix giving early copies to 100 Youtube LP and streamer just to promote FFXIII-2 for free. Why do you think so many Companies also now have Twitch channels in which people play their games? Because it is almost free PR and helps a lot.

TB's stream alone no, it only had around like 100k viewers at max, I think someone was saying.

But there was a stream-a-thon thing going on with all kinds of different people streaming it. Day9 did a stream with Felicia Day, TB did one and a whole lot of other Youtube/twitch personalities were in on it which helped it reach out to a bunch of people (each stream having over 10k viewers, obviously, because of the people streaming).

Wasn't enough to make that game popular enough but still.

People like them have been the reason games have gotten greenlit, kickstarted and what have you. They know what they're doing, that's why they have a job doing it.

Example: How many people from Giant Bomb do you think would've bought a copy of Deadly Premonition or Persona 4 if it hadn't been for their Endurance Runs?
I'm not gonna say "Nobody" obviously but still, I'm willing to bet a lot of people did because they saw those videos.

They were greedy even in the days of the NES, with all those developer rules and regs. That being the case, this doesn't come entirely as a surprise to me. Such a shame. I used to love them and their products so much, but they keep lessening that fondness with every stunt like this.

Well, as a new lawyer, I can probably comment somewhat one question number 3. The answer is that LP videos probably do not qualify for the fair use exception. Of course, in true lawyer fashion I'll also tell you to "never say never." Really, this is a pretty complex topic that is worthy of its own discussion (maybe I'll write a blog post about it). That said, at the risk of vastly oversimplifying things, there are four statutory factors to determine whether something is fair use:

1) The purpose and character of the use, including whether such work is of a commercial nature or is for non-profit or educational purposes: This factor is the one the US Supreme Court has determined to be the "primary" factor in the analysis. Works that are produced for profit are less likely to receive fair use protection than those works produced not-for-profit or for teaching purposes. Obviously, since LP was receiving ad revenue from YouTube for their videos, they were producing them for profit and are thus less likely to qualify for fair use.

2) The nature of the copyrighted work: This factor looks at whether the copyrighted work was factual or creative in nature. Creative works receive more copyright protection than factual works. For example, a novel gets more protection than an atlas. The reason for this is the idea that society as a whole has an interest in the dissemination of facts and information. Thus, the specific form of copyrighted factual information is protected (i.e. an atlas or dictionary), but not the information itself.

Here, since Nintendo's works are creative and not factual, they receive more copyright protection and it is harder for people like LP to get a fair use exception.

3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole: This one gets tricky because there are really two things at work here. First, fair use is less likely where a large portion of a copyrighted work is used. Since LP often produces videos showing large segments of a game, this factor cuts against them. You can call this the "amount" prong. However, even if LP showed only small snippets of a game, they might still fall outside of fair use if the snippet they showed was particularly important to the game in some way. You can call this the "substantiality" prong.

For example, assume that YouTube had existed when "The Empire Strikes Back" had come out, and that someone decided to post a video about it. This video would fall outside of fair use if it showed all or almost all of the movie. This would be an obvious violation of the "amount" prong. However, it would also fall outside of fair use even if the video showed only five seconds of the film, provided those five seconds were the part where Darth Vader said "Luke, I am your father!" Since this is obviously central to the movie, it would fit the "substantiality" prong and not qualify for fair use.

4) The effect of the use upon the potential market or value of the copyrighted work: Of all the factors, this is the one that favors LP the most. As many have pointed out, Nintendo isn't really losing anything by LP putting up their videos. Nintendo is so large and so popular that people will still buy their games regardless. The video might even increase the value of the property by giving Nintendo free advertising and generating interest in the game.

So in summary, three of the four factors in determining fair use cut against LP. This makes it extremely unlikely that they could successfully block Nintendo's actions by claiming fair use.

Oh no, were going to lose gems like this...

I 100% see that point and agree with it to a certain extent, however Im just going by what my friend who is a media copyright lawyer tells me.

You would have a point if they stripped out anything to do with story/plot, such as cut scenes, when an audio log is played, etc, and only showed the mechanics of the game.

@lawgamer: Oh no one is saying they are in the wrong they have all the right to do so. But it is a totally stupid decision because the only thing they really gain is bad PR and less coverage of their Products.

This argument is probably going to head down the same road as pirating has. Some people will argue that by pirating a game/watching a LP they actually get into it and eventually buy the full product, others (Nintendo in this case) will argue that by pirating the product/watching the LP you negate the need to buy the product. Each side has pretty legitimate cases and I can sort of see where Nintendo are coming from here, people are essentially putting their whole games out there for free. Admittedly, watching an LP isn't the same as playing the game for yourself but you are getting a significant chunk of the experience and Nintendo are getting nothing in return.

LPs are as important to my process of gathering information about games I'm interested in as traditional websites, podcasts, impressions from friends or forums, developer-made content and demos/ betas and the like. Any company that tries to limit my access to that information will be less likely to sell me on their games. From my perspective it is that simple.

Games require way too much time and money for me to take a gamble all that often. So I don't trust companies that fuck with people's ability to provide that information for me. Furthermore, a game that can fully be experienced through watching an LP is not worth buying anyway (aside from the fact that such a game might not even exist in the first place).

Doesn't this just say that Nintendo will put its own ads on Nintendo videos of a certain length so THEY get the ad revenue instead of the LPers?

I don't see why that's a big deal or how it's even scummy.

You guys are acting like they are prohibiting, taking down, or suing anyone that does an LP. They are just taking the ad revenue from them. And I don't have a problem with that.

Nintendo is getting so few games for the wiiu and all with like no multiplayer appeal, so they are trying to stop people from being able to just watch the cool stuff on the internet. This is a theory, a dumb one at that, i really hope this is not true.

@wrighteous86: its not scummy at all but if a LPer does what they do for a living or depends on some of that revenue they're not gonna play Nintendo games. It's not a question of it being scummy it's a question of it being kinda a dumb move. Which it is.

Because people make a living out of this for example. And if they do not get money for it they will not providing any Nintendo coverage anymore. As I bought this example from this Zack guy who had a Luigis Mansion play through and each video had over 300k views. That is a lot of PR that is now gone because he deleted these videos . This news already made it to BBC news so yeah it is bad PR because a lot of people on the internet are pissed. Will it harm the casual Wii customer? No it will not but these people are also not intersted in the Wii U so the only people nintendo had left were gamers and with this action today they are going to lose a lot of them now too. So yeah. Nintendo is so out of touch that it is becoming really dangerous for them and their future and this is just another example of it.

Some people have made playing Nintendo games(or, games made specifically for Nintend Consoles) their jobs because those are the games they know the mechanics of and can talk about for hours without rambling about random stuff that happened in their life. It paid the bills, now no longer.

That seems pretty scummy to me, but maybe that's just me.

STICK IT TO THE MAN! DON'T LET THEM TAKE OUR JOBS! and all that :P


*cough*

@darji: As I said in my post, I was not commenting on the wisdom of their decision, I was merely responding to OP's third question as to whether LP might be protected by the fair use doctrine. I totally agree that this seems quite foolish on Nintendo's part, although in their defense I would be interested in knowing how many of those posting here are actually the type to buy a Nintendo game. Speaking only for myself, their actions certainly make me like them less, but then again I haven't owned a Nintendo system since the N64.

If I had to guess why Nintendo is doing this, I would guess that it is about controlling their message and their brand. Nintendo has always seemed pretty careful about defining themselves as the "family friendly" video game company, particularly when it comes to properties like Mario and Zelda. Although the LP videos do provide them with a means of free advertising, they also don't have control over what gets said. It is entirely possible that LP could put up a video that bashes a Nintendo game and actually decreases interest in that game. They might also produce a video that juxtaposes something like Mario with more salacious material, which risks damaging the perception of the brand.

Nintendo probably figured that sending take down notices would be too draconian, but given the risks inherent in being unable to control what goes up, they also probably felt the need to get some compensation for what was being produced.

I don't agree with Nintendo's decision, even though they are within their legal right, but I think there's this over estimation of the impact to them.

It's bad PR, but for whom? A lot of parents buying their kids Nintendo products won't care. It's only bad PR for those deeply involved in gaming culture, and even then, if they've already bought into the Nintendo ecosystem, this won't stop many, if any, from buying Nintendo games.

This is less coverage of their game, but considering this is Nintendo, there still is coverage of their game. While there may be some who might not know of a new Nintendo game and only learn of it from a LP, I don't think it's a significant number of people.

I know why they're doing this NOW...they're trying to prevent Jeff from making his encyclopedia bombastica about yoshi's island.

Nintendo is stepping up to Microsoft levels of dick.

Good on them for letting the videos stay up. Could have easily forced them to be taken down.

How does this affect people who speedrun Nintendo games? They can't take away my speedruns, I need those to live.

They aren't taking away anything, they will just put ads on them.

Alright, I can live with that

Desperate move from a desperate company.

In line with Nintendo tradition of being total bitches.

Sinking ship.

The thing about law is that it is not black and white. I could sue you because you defamed me, you didn't. But thats not what I would argue, and thats not what you would argue. Either way, it is up to a judge to decide. Just by being alive you open yourself up to lawsuits. The problem for Nintendo is that it would cost so much more if everyone started fighting them.

Also remember that a lot of people do not live in America. Where the same laws apply.

I think people making LP content would be less likely to be able to afford a lawsuit than Nintendo, even if all of them tried to fight. They would need someone like the EFF to stand up for them to have a chance. And since Youtube is essentially in America, the laws would apply to them, and they'd do whatever Nintendo said.

@darji: What fool would try to make a living on LPs?

On one hand they're just enforcing current copyright laws.

On the other, current copyright laws are pretty ridiculous, and most companies would be better off culturally, and maybe even financially, if they chose to forego some of their copyright... rights.