I sincerely hope that the response to this move is that LPers upload thousands of hours of video of Nintendo games doing whatever they do without player input. Hundreds of days-worth of start screens and 45-second attract demos.

This. That discussion is far from being relevant to the actual point.

I agree that Nintendo is probably well within their rights to do this. I also agree that this was probably not the best move for Nintendo to do, considering LPers are naturally a very vocal group. However, I have a couple of opinions on this situation.

LP'ing always involves a work somebody else created by its nature. While there is a lot of work with commenting and editing the video, the underlying game under all of that was authored by somebody else. It's really hard for me to rationalize that Lets Players have complete ownership of everything they produced. It's also hard for me to rationalize that the developer can deprive a Lets Player from profiting off of his commentary and editing. So then we are left with a real hard question, "How much ownership does each have over the contents of a let's play as far as money is involved?" I don't have a good answer for this, and I haven't heard a good one yet.

I am also fairly unsympathetic to the career LPlayers that are outraged that they are losing money. I don't think that any of what I would call a "good" LP was from anybody who made a living from doing them. I am not saying that nobody enjoys these LPs, they obviously get view counts, but the more popular the LPlayer becomes the less it is about showcasing the game and the more it becomes about just the LPlayer's personality. After a certain point, I question their inability to profit from just their personalities.

I would really like to know what Nintendo was thinking here. I don't think Nintendo meant this as a way to get back at LPlayers for ruining their games. Is Nintendo hurting so much financially that they would consider this as a viable way to get money? I don't think Nintendo is that desperate. I also don't think that it could be that much money for Nintendo in the grand scheme of things. This can't be about control either, Nintendo is not shutting down LP's just profiting from them. A person can still produce crappy Nintendo LPs, they just can't profit from them. Did Nintendo really not expect the outrage? Given how Nintendo seems out of touch with the internet in general, this really wouldn't surprise me.

My 2 cents

Yeah. I keep thinking of attitudes towards rock in the 50's/60's ("That's not real music!") for whatever reason.

A job is something you're being paid for. Not sure why some people have to be judgemental about it.

On a note. This is not only affecting LPs it is affecting everyone doing content for nintendo games of a certain length. Preview? Flagged, Review? Flagged, Speedruns? Flagged. And they have benn already videos flagged with way less then 10 minute content.

Watched it. I disagree with almost everything the guy says. Especially the comparisons he makes, which are ridiculous almost to the point of lunacy. How is a "let's play" content creator like professional athlete? A StarCraft "athlete" could be compared to a professional Athlete, but a let's play content creator is in no way the same. A reasonable comparison would be a guy in the stadium with a digital camera streaming out the football game to the internet and doing his own play by play commentary which... guess what... is also illegal.

And you don't have to be an IP lawyer to discuss the legality of IP. Since, as the guy points out in the video in one of the only right things he says, this is all new territory and being created as we speak. As someone who has followed copyright discussions on things like this for a decade, I have heard MANY IP lawyers and, better yet, the judgments by IP JUDGES, that provide a framework for discussion.

I dunno. I wanna say a big part of it is jealousy but that feels pretty dismissive...even if it is true for a bunch of people. Making a living putting vids on youtube isn't as complicated or nearly as important as being a doctor, sure but who cares. You're paid to do something you love, who doesn't want that?

There is now lawcase for LPs. No one actually knows if its right or wrong. It is a grey zone and as long no judge has judged such a case it always will be.

@darji: I still remain unsympathetic. I may just not the target audience for video reviews/previews on youtube since I get that from Giant Bomb, and I don't believe that they monetize through youtube. I also have not heard the speed running community getting too bent out of shape over this as they typically don't get too much ad revenue in the first place compared to LPs.

I disagree. Society has an opinion on what is and is not a job. It earns the right to have that opinion when it starts having to make protections for jobs. Almost every job you do in the United States, some protections have been put forth to keep your profession afloat. It's just a part of economics. In order to have people do the jobs that need to be done, one has to make the jobs worth doing. We have decided that creating software is a profession worth protecting. As such, we extend copyrights to make sure those people have incentive to do that. Now the decision has to be made "Is playing videogames on video a job worth protecting?" If so, we offer them protections under the law. If not, we don't.

Wonder if Nintendo believes extensive footage of the games is decreasing the sales? Maybe they assume people are just watching videos of the game online instead of actually buying the game the themselves.

This is "Playing A Game Is Performance Art" argument which I don't find compelling for a number of stream-casters who just play the game. If you are going to do a "Let's Play" then do something with it beyond playing. Anyone can play OoT. Why does the streamer need ad revenue let alone Youtube for that? On the other hand what "Two Best Friends" do is create additional stuff along with editing and post processing.

If I need to be clearer, I watch "Two Best Friends" play random games because of the Pat and Matt not because they might be playing a Nintendo game this episode. Why should Nintendo make money on just because the game has Yoshi in it? On the other hand, if a Let's Play just shows someone running through Super Mario World then it is unclear why Nintendo shouldn't be using this for ad.

I totally think its jealousy. If it wasn't just jealousy, then people would have to also say that they think half of the GB crew's job is not legitimate since Quick Looks are in the same vein as LP's. Some people in this thread just have a chip on their shoulder.

Oh if you like it or not is a total different thing. And it seems that Giantbomb does not make money on youtube as far as I can see (no ads) but only because they get their money from their site. As for speedruners. They are currently pretty big on twitch and that is how they make money right now. Dont know about youtube though. But it would affect such videos as well. These content ID search machines to not make exceptions. Everything with a certain amount of nintendo stuff will be flagged. and that is very very bad.

Hilarious.

Ok do you also work 10 12 or even 16 or more hours a day including weekends? No thought so.

Well, if you watch Two Best Friends because of the two guys, then why do they need to show any videogame content at all? The answer is because the game contributes a meaningful amount to the videos. In fact, the game contributes the MOST to the videos. Why else would any of these youtubers care? If they were the draw, they would continue to BE the draw without the game. But, no, the game is the draw. Or, rather, their interactions with the game.

I realize that Nintendo is well within their rights to do this, but I don't get why so many people think that's an acceptable excuse. If every company decided to do this, then it would kill the entire format. Nintendo isn't going to start raking in the profits off of these videos, the people who were making money off of them are just going to stop doing them. If every publisher handled this situation the same way then every LP that anyone posts would be an amateur production made in their spare time. Regardless of how legal it is, that sucks, and you shouldn't defend things that suck. If laws cause shitty things to happen, then they are shitty laws.

Not to mention the potential ramifications for sites like Giantbomb whose entire content schedule is based around the idea of playing a video game and talking over it. This whole thing is a really slippery slope, so regardless of whether or not you agree with this move, you should be worried that Nintendo is willing to do this.

@jazgalaxy "Two Best Friends" wouldn't make sense unless you see the game they are playing. The last one I watched was about them playing the new Star Trek game. I didn't know they were doing the new Star Trek game. I didn't care they were doing the new Star Trek game. Their jokes wouldn't make much sense unless you see what they were doing in the new Star Trek game. Can Paramount or whoever made that game demand they take it down unless they get to put a Star Trek movie ad in it? I have a feeling the answer should be "no"

It would be like some stand up comic act doing a riff on how ugly their neighbor's house looks then getting sued by the neighbor for N% of the comic's take from the night they mentioned their house was ugly. It wasn't the comic's property but it also wasn't the neighbor's jokes.

This is what we should be talking about, really. GB's content isn't really that different from that of some of these LPers, except that they're not advertising (I think?) on YouTube. Where is the line drawn between two separate instances of people talking over video game footage for money?

A lot of people have made the legal right of Nintendo to take down the Let's Plays a cornerstone in their argument in this thread - and they do indeed have that right, just not the way most people think. It all really comes down to just one, single factor: the contract between Youtube and its content creators which give the former the ultimate right to remove or change monetization of any upload, for any reason and without any warning. Since Youtube have decided to automatically approve any requests from copyright holders, Nintendo do indeed have the legal right to what they are doing right now.

But this has nothing to do with the legality of Let's Plays.

The truth is, that legality is not at all decided - there are no applicable precedents here because copyright holders have either not yet opted to ever sue or no-one has been crazy enough to go to court over something as trivial as a Let's Play. This means that there is no clear answer as to whether Let's Plays fall under Fair Use or not. A lot of you have pointed out that it obviously can't because they are completely reproducing the copyrighted material. But this isn't entirely true either - if I may, please take a look at this precedent:

A US court case in 2003, Kelly v. Arriba Soft Corporation, provides and develops the relationship between thumbnails, inline linking and fair use. In the lower District Court case on a motion for summary judgment, Arriba Soft was found to have violated copyright without a fair use defense in the use of thumbnail pictures and inline linking from Kelly's website in Arriba's image search engine. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation, who argued that it is clearly covered under fair use.

On appeal, the 9th Circuit Court of Appeals found in favour of the defendant. In reaching its decision, the court utilized the above-mentioned four-factor analysis. Firstly, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution like the original artwork was. Secondly, the fact that the photographs had already been published diminished the significance of their nature as creative works. Thirdly, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by the creation of the thumbnails. To the contrary, the thumbnail searches could increase exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgment after Arriba Soft had experienced significant financial problems and failed to reach a negotiated settlement.

Take special interest to the court's reasoning: despite the fact that the copyrighted works were reproduced in their entirety, turning them into thumbnails were deemed fair use because it was not how they were supposed to be used in their original form, and therefore sufficiently transformative. It should be readily apparent how this could be applicable to Let's Plays seeing as how watching a video of someone playing a video game is nowhere close to the way it the work was supposed to be used in its original form - that is, played. Both factor three and four are possible to co-opt as well, and the fourth one, well... it shouldn't be too hard to argue.

So it is not unreasonable that a lawyer could very well argue successfully in favor of Let's Plays being Fair Use. It's not at all black and white.

And this isn't even approaching the subject of whether Nintendo's actions are ethical. As a consequentualist I would argue that they are not, seeing as how Let's Players in my view are not hurting Nintendo but Nintendo, for no apparent reason, have chosen to harm the Let's Players - whether they are legally entitled to do so or not.

He's not correct when it comes to Let's Play videos being a transformative work, and allowed under fair use.

There are several things within a game that are copyright:

• Artwork - the character designs as seen in the game are owned by Nintendo. As the copyright holder, Nintendo controls when to display it publicly. You can make your own artwork of a character though, that would be a transformative work.
• Music - the game's soundtrack is owned by Nintendo, and they control when it can be performed. How about people who make a cover of a song and upload it to Youtube? Those are derivative works. A copyright holder can claim those and ask that they be taken down. Many won't if you're not trying to profit off of it. If you try to release a cover for profit, you need to license it from the owner of the copyright.
• Story - The video mentions this. The cut scenes, dialogue, and plot of the game is owned by Nintendo. If you took a movie and adapted it into a play, modifying some scenes, it's still a derivative work. That's a bigger change than simply adding commentary, or even adding your own overlays, to a game, and trying to claim it's transformative. Heck, taking Super Mario Bros. the game and making it into that movie required the copyright holder's permission, and the end product was vastly different than the source material, while sharing some elements.

About the only thing the video got right is that the gameplay with regards to the game's mechanics may be different. Starcraft tournament footage is closer to fair use than someone's playthrough of a Zelda game because it isn't making use of the game's storyline while being mainly focused on the competitors playing abilities.

Let's Play videos that show the majority of the game aren't comparable to previews, reviews, or Quick Looks. One of the things looked at for fair use is how much of the copyright material is used. It's a percentage of the original work. There is no exact value specified, but is clearly not as much as what is presented in Let's Play videos. The Supreme Court had ruled against a publication that used 300-400 words, even with some paraphrasing, of a memoir without permission.

If this does affect previews, reviews, or Quick Looks, then that is unfortunate. They do qualify under fair use and are simply collateral damage. It might be hard to determine which video is part of a Let's Play series when the games are broken down into several videos. Endurance Runs are not fair use, as much as we might love them. Swery coming into the Giant Bomb offices clearly showed that he didn't have a problem with it, but that doesn't make it a transformative work.

I'm not arguing in whether Nintendo should or shouldn't have done this, but simply whether they are legally able to do this. The answer is yes. Let's Play videos that show the majority of a game aren't protected by fair use.

I know the Two Best Friends videos wouldn't make sense without the video. That's the point. People can claim they are going for the personalities and not the game, but the game is an integral part of the content and arguably the MOST important part of the content. Without the game, the content is nothing.

Your comedy analogy is unequivalent. It would be more the case to say "What if a standup comedian was doing a joke about how ugly his neighbor's house was and showed a picture of his neighbor's house. Then when the neighbor says "you can't make money off of pictures of my house!" The comedian says "well the joke wouldn't be funny unless I show the pictures of your house!"

In both cases, the artist is merely repackaging someone else's property and selling it as their own.

@jazgalaxy: you're getting nit picky about what defines a job and that's not really relevant to the discussion. If you get paid to do something and you aren't breaking laws, that's your job. If somebody pays me $500 a day to punch me in the face that's my job. The whole 'fair use' part of this is a grey area but most company's are cool with LPers and they're supporting themselves with this. It's their job.

I'm not being nit-picky. The details are everything.

You said, if you get paid to do something and you aren't breaking laws, that's your job. Sure, but in this case, Nintendo is saying they ARE breaking laws. That's the whole conversation.

Yeah someone is being implying way to much to ownership let alone IP rights. Just because Nintendo created and owns IP rights on games doesn't mean they control everything about anything that happens to show something with their IP.

Anyone can make jokes about Nintendo games and make money doing it. Such a comic wouldn't own the rights to the game or created it but they sure can use it to deliver their jokes where Nintendo has little legal right to demand they stop or part of their pay.

Anybody else feel like they missed out on a free money train?

@slag said:

No, because I'm not funny or interesting enough to consistently get over 100000 views on every video I produce. Most people aren't.

@nivash: I've never said anything is unlimited. That's the purpose of fair use and what we're discussing.

Reviews and previews are covered under fair use and may use screenshots, so yes, screenshots would fall under fair use. I can't start selling photocopies of Olly Moss prints, but I may be able to post a picture of it online on a blog and say how awesome it is. There was an issue last year regarding the ownership of a picture of a bear falling out of a tree because some sites were posting it without the copyright holder's permission.

A 29-second clip isn't the whole song in it's entirety, so it could fall under fair use. You could claim fair use as a parody if you included an entire Beyonce song, but had babies acting out her music video. Dogs barking a Christmas song may be covered.

A movie contains a lot more than simply the story being told, the whole work doesn't need to be adapted to be protected. A lot of movies rely on the visual effects and soundtrack. A one-person play acting out the movie would still be a derivative work. More importantly, copyright is established once a piece of work is created. You are correct that an idea is not protected by copyright, but scripts and storyboards are. Game development isn't simply get an idea and then put it to code. A game writer writes down their idea, others may story board how the cut scene will go, *skip some steps*, and the final product is a game that is still a derivative work of the story the game writer came up with. That is still protected by copyright.

Sure, Let's Play videos' claims to fair use are undecided in that they haven't challenged copyright claims in courts. I don't think they would fair will if they tried.

Intellectual property and copyright are two different things.

I can make jokes about Quentin Tarantino movies. There are no copyright protections I'm infringing on. I cannot make those jokes while showing those movies and post the result online. That doesn't fall under parody fair use. I can make a parody movie like Space Balls though.

@jazgalaxy: except that its not the conversation at all. The conversation that's really important here is, is this a good idea on Nintendos behalf an I and a lot of people would say no for the same reason devs from small indie studios all the way up to Valve and Blizzard are all for it. Places run by forward thinking people who know how to take advantage of the communities that build around their games and know that benefit outweighs whatever ad revenue they aren't getting. Nintendo continues to be five years behind everyone else.

@sergio: You really did come off as saying that Let's Plays can't be Fair Use because of the reasons you listed. And you really did make it sound like they were unlimited rights in scope by the way you presented it too, as with the phrase about artwork that said "Nintendo controls when to display it publicly" which came with no caveats whatsoever and the rest of the points were written in a similar style - hence my somewhat brusque response.

No, I don't think Let's Plays would fare all that well in court either if for no other reason than that the resources a company like Nintendo could throw at it would be overwhelming compared to those of a poor Let's Players (and sadly, this does matter a great deal) but from a completely legal standpoint it's not that clear cut. A good enough defense lawyer, and you could have a groundbreaking precedent. Because at the heart of the matter is the fact that the Let's Players are, at the end of the day, adding something to the original work that simply wasn't there before which is the very definition of creativity - and a judge, or jury, could very well focus on this and conclude that in this case copyright should allow for fair use seeing how the law isn't designed to stifle creativity but to protect it. It is possible to use the four factors of Fair Use favorably in a defense. And at the end of the day, as long as you can prove that the use doesn't hurt the copyright holder you get a lot of leeway.

@nivash: Sorry, I was actually paraphrasing who controls the usage of media protected by copyright, so it might have come off as an all-or-nothing from me. Since this is spread out over three threads, I didn't bother repeating what someone already said in this or another thread regarding what constitutes fair use.

I don't think adding something creative as a defense would really work. It definitely doesn't work for patents unless it's patent troll who is stretching the limits of their patent.

Let's Play content creators best hope would be to get aid from the EFF, but even then, I don't think they would prevail.

I think you just hit the nail on the head. This is exactly what it is like. People can say what they like about the personalities of the LP'ers selling the videos, but without the original content from the game producers no-one would be watching these videos. The best you could say is that Nintendo et al, is that they could maybe cut some deals with the best and most popular LP'ers and give them some revenue if they think the promotion is worth it.

However they aren't removing the videos, everyone who wants to continue making these videos as a labour of love can do so, but you cannot expect to make money using someone else's content. Its not right morally or legally.

I don't think it's right.

The line between a crappy Lets Play and one where the creator adds a significant voice and style to their video are too narrow in a legal sense. I feel like there are plenty of Youtubers that produce content with enough skill and style that the game being played isn't the main draw and it leans more into creative and artistic expression based around the video games world. I can argue that many people use the game to create an extremely unique product. Sure, they're using a game created by Nintendo but how different is that from a guitarist making money off the music he creates with his Les Paul or Andy Warhol selling a painting of a Campbells Soup can? That may be a stretch but if someone is expressing themselves through their lets play videos and puts in significant amounts of time to learn the craft and find their voice and how their voice fits in with the game being played I don't see how it is different than any other instrument.

I think unique content, even art, can be created within the confines of a game and if the Lets Play producer is creative enough they have every right to monetize what they make.

Maybe this is actually a good way to give youtubers (worst word ever) the incentive to create better content that is more in line with their personality and less focused on the game being played. If we want to make the argument that games are art than we can't look past the fact that they are also interactive experiences. All the humor, love and meaning that the creators of the game inserted into the experience can be molded by the players to make it unique to them.

At the very least the lets play creators should be given some of the profits for the hard work they put into their creation. If Nintendo is able to make money off of something that they didn't post or make then so should the Youtuber.

Any new follow-up for 2015 since this stuff is still going down. link to a newer article / commentary . . unless Nintendo tried to monetize the article as well.

I feel like in this argument Nintendo is some fresh-from-the-academy Rookie Cop coming onto the Force all zealous and filled with a passion for the job.

Then all the people there are crooked and lazy and slack around the office all day. So Nintendofficer goes "Hey, you can't do that?! Why are they doing that?" and looks up his training guide to see if he missed something but from every point of view he can see they are doing wrong. He consults his superior officer Chief Inspector Lawyer and he agrees this is how procedure is done, but Lawyer never spends enough time with the rank-and-file to catch on.

So then the regular employees sling an arm around Nintendofficer's shoulders and say "Look man, this is just how things work here!" but he's not swayed and goes ahead with filing an official complaint about his colleagues and as a result new stricter procedures and limitations are put in place to ensure people are by-the-book.

Cept of course everyone's like "Hmph what a jerk" afterwards.

Nintendo are in the right. It's a real luxury that people can play videogames and just make a living off of it. I'm sure some of the best will still survive (they are the best because they like videogames after all) and if it culls some of the massive LP community on the internet well I'm sure plenty will be around afterwards.

Also if folks are saying it might hurt Nintendo, what if other companies take the same approach to their property after seeing them do it? If everyone enacted this policy (Microsoft, Sony, etc) because after all it's free money they are due then frankly people would stop claiming it's hurting Nintendo because it'd be the new standard of the 'youtube market'.