Topic: Nintendo Starting to Reverse YouTube Copyright Claims

[UncleBob]

So... What were some of the details on these past cases?  Like, can you remember specific companies involved?  Defendants?  Any specific game titles?

[oohhboy]

Read the pargraph directly after it. You can't even read properly even when it's given to you on a plate.

Nintendo may believe that, but I'm not so sure.  As Zack Scott puts it: "Video games aren't like movies or TV. Each play-through is a unique audiovisual experience." I think that's just right -- the peformance of a video game is something different than a clip from a movie.  It could be argued that footage of original and creative game play -- even extended footage of creative game play -- constitutes a form of "transformative fair use" under copyright law.  A very recent case in the Second Circuit, Cariou v. Prince, might be understood to support this argument.  Following that case, if the aesthetic appeal of a Let's Play video is perceived as fundamentally different than the appeal of the interactive game, fair use might actually exist.

[TJ Spyke]

I did read on, and checked the case. First, it was in regards to pictures, not video (which is a different medium altogether). And in that case, 20 of the 25 pics were found not to be infringing, the other 5 had the appeals court standing by the original courts ruling (which found them infringing).

The rest of the paragraph is opinion, with the blogger saying they think its OK. That is not binding.

[UncleBob]

So... What were some of the details on these past cases?  Like, can you remember specific companies involved?  Defendants?  Any specific game titles?

[Soren]

Video game walkthroughs and tutorials with commentary
Even though video games are copyrighted, it is now a widely accepted practice on YouTube to post walkthroughs and tutorials ("let's plays"). Both the player's original commentary and the fact that their gameplay creates a unique subjective experience with the game make the use transformative. As long as you include your own original commentary about the game and don't just post straight raw footage from the game, it is likely fair use. It is possible that even un-commented gameplay is still fair use, though this is less certain.

http://fairusetube.org/guide-to-youtube-removals/3-deciding-if-video-is-fair-use


As the article states: Let's Play videos are likely to be withing fair use, but we won't know for sure until someone takes it to court. At least I'm glad it won't be Nintendo doing that.

[TJ Spyke]

I wouldn't use that article as any kind of legal standing, it's the opinions of whoever wrote that (who I extremely doubt have any knowledge of copyright law).

[Soren]

I wouldn't use that article as any kind of legal standing, it's the opinions of whoever wrote that (who I extremely doubt have any knowledge of copyright law).

This site is maintained by Patrick McKay, a Colorado-licensed attorney and 2012 graduate of Regent University School of Law in Virginia Beach, Virginia. After successfully fighting takedown notices against his own videos on several occasions, he started this site to spread awareness that it is possible to defend your videos from copyright notices on YouTube.

You were saying?

[Soren]

Ugh, sorry for the double post, the "modify" button is missing. I wanted to say that I understand an article on the internet does not equate with legal standing. I did however wanted to refute TJ's claim that the guy writing the article has no knowledge of copyright law. While he may not specialize in copyright cases in the law firm he is working, he still has some experience with copyright issues on YouTube.

[TJ Spyke]

Soren, I will just add that that are people with law degrees who think all kinds of things are "legal". Hell, some members of the Supreme Court think it's OK for companies to discriminate against people based on their sexuality, a certain former president had his lawyers try to say that torture is OK (even though it violates US law and international law). And not all videos are copyright violations, but he tries to make it sound like all (or most are OK).

[UncleBob]

So... What were some of the details on these past cases?  Like, can you remember specific companies involved?  Defendants?  Any specific game titles?

[UncleBob]

So... What were some of the details on these past cases?  Like, can you remember specific companies involved?  Defendants?  Any specific game titles?

Come on, TJ - you're always ready to pop into a thread to chime in with some random fact or correction.  You *have* to remember something about the past cases you're citing.  *Something*

[EasyCure]

hey guys, stop posting for like 5 minutes. I need more popcorn..

[oohhboy]

He seriously won't find any because LPs are untested in court. Expert opinion is the best we have. That expert opinion overrides TJ's "Because I said so". Seriously, we had closed this discussion back in the first page of the first thread before TJ stumbled in swing both fists in a bar fight with himself. TJ, you're trying to reconcile an inconsistent, conflicting internal view to reality, guess which one is going to win.

I am not paid enough to sort your headspace out. Popcorn time.

[ThePerm]

Actually there is an fair use education rule, BUT you can' profit directly OR indirectly. As soon as that happens... it doesn't count

[UncleBob]

Actually there is an fair use education rule, BUT you can' profit directly OR indirectly. As soon as that happens... it doesn't count

Even that is... iffy.  If I'm a teacher and I want to use a text book, I can't just photo copy the whole thing for my students...

[Oblivion]

Half my teachers in high school did just that because the school was too poor to afford books for everyone.

[EasyCure]

Half my teachers in high school did just that because the school was too poor to afford books for everyone.

Mine did something similar, although a tad strange. The homework for most classes were the textbook questions copied right out of the book, because we couldn't take the books home. I guess that means there was enough per class but not per student.

[UncleBob]

The important thing about "Fair Use" is that there is no singular magic bullet that determines if something is "Fair Use".  17 U.S.C. § 107 states that it's to be determined on a per-case basis.  It goes on to list some "factors to be considered", but nothing that says "X is fair use".

[smallsharkbigbite]

Half my teachers in high school did just that because the school was too poor to afford books for everyone.

Mine did something similar, although a tad strange. The homework for most classes were the textbook questions copied right out of the book, because we couldn't take the books home. I guess that means there was enough per class but not per student.

Just because it occurred doesn't mean it was fair use.  The publisher has to know something is happening before they can respond.  It is unlikely that the students were going to report a fair use violation or that the teacher would self report their fair use violation.  There are a lot of copyright violations that do not go reported and are left unknown by the publisher. 


My guess is that the reason they didn't let you take a full copy of the text home was rather the cost/time in copying a book rather than their concern of fair use.  Case by case and the facts aren't listed so it is hard to know if this would be a violation.