Topic: Nintendo Starting to Reverse YouTube Copyright Claims

[TJ Spyke]

Pictures fall within fair use, 2+ hour videos do not. And if they want to upload just a audio file of their commentary, that would be legal and Nintendo would not do anything. Uploading a video makes it violate copyright laws though. If you say people watch for the commentary, then they should be willing to do it without video. If someone would not watch it without video, then they are paying for the video.

[Enner]

This is a nice surprise.

I wonder if Nintendo only planned to temporarily claim the content ID revenue in order to set some sort of precedent (legal or whatever). Or maybe Nintendo wanted share the revenue somehow but couldn't find an easy way to do it? No, that sounds stupid.

Anyway, nice to see Nintendo picking up some "good image" points by dropping the ad revenue claims.

[UncleBob]

Pictures fall within fair use, 2+ hour videos do not.

Says who?  Pictures are protected by copyright law as much as video is.

And you still haven't answered CurtDogg's Backlogg or the example I asked you about above.

I can't imagine why you're avoiding questions that make you uncomfortable.

[MegaByte]

There is no law that determines what specifically is fair use; it only lays out some factors of its consideration. Fair use is determined on a case-by-case basis in court.

In any case, the points about Nintendo possibly doing this because of Google/Youtube's system is very likely. Youtube's all-or-nothing automated system is pretty inflexible and isn't set up well for this kind of scenario, which has led to all sorts of similar grief. Having dealt with it from both sides, it's a huge mess, and most of that is Google's fault.

[pokepal148]

Pictures fall within fair use, 2+ hour videos do not. And if they want to upload just a audio file of their commentary, that would be legal and Nintendo would not do anything. Uploading a video makes it violate copyright laws though. If you say people watch for the commentary, then they should be willing to do it without video. If someone would not watch it without video, then they are paying for the video.

isn't a video just a bunch of pictures(which you have already stated fall into fair use) moving in a predetermined sequence (fps) and an audio track(which you have stated is legal)?

[Mop it up]

Hopefully this means that they're going to figure out something in between.

[Soren]

Pictures fall within fair use, 2+ hour videos do not.

Not true. As it's already been stated, fair use is determined on a case-by-case basis. In addition, there have been instances in the past (Betamax case) where copying entire works have been determined as fair use. So there is no exact magic cut-off point where fair use becomes copyright infringement.

[oohhboy]

TJ won't have an answer for you UncleBob because he has none. His position never had any real basis other than his own assertion that it was the correct one and that because a big corporation was behind it, it must be right.

Another thing he forgets is that this isn't currently a legal decision, its YouTube(Google) policy and tools. This process is entirely confined within YouTube.

Also it never made sense for Nintendo to capture that money even if it is perfectly legal for them to do so. Even if the person was earning $10000 a month from one of the videos, Nintendo couldn't buy that kind of marketing for $10000 a month. For that much money they couldn't fund one GameCenterGX. By not discouraging this kind of activity, they would have an internet full of GameCenterGX's with social darwinism doing the heavy lifting.

[shingi_70]

Cool. Free advertising is never a bad thing for your console.

Did Nintendo ever do anything like this for Twitch?

[TJ Spyke]

I was at work dooboy, so I couldn't give long responses. And I never said video in general is not fair use, but a 2 hour video is not (fair use would be more like 5 minutes).

Curtis is not making money from his streaming his play sessions (and its streaming, not uploaded), that is a key point. I have no problem with these people uploading videos for free (which they should not mind if they are doing it out of love instead of making money), it changes when they want to use someone else's work to make money.

Soren, the Betamax case was specifically about making a copy for your own private use. It's why CD-R's and DVD-R's are legal. It changes if you try to profit from them (i.e. it's illegal for you to make a copy of a movie and then sell it).

[UncleBob]

TJ:

A) I asked about BackLogg yesterday.  I hope you haven't been working a long shift since then.
B) Site makes money off of ads shown while the streaming video is playing.
C) Still have never answered the question about using someone else's copyrighted program (i.e.: Word) to create a work (i.e.: novel).
D) Profit isn't the only thing that makes it legal - I can't make copies of a movie and give it away either.
E) Do you think it's fair for Nintendo to profit off someone elses work?
F) You didn't say video is always fair use, but you tried to claim that photos are fair use.  Which is what started that portion of the debate.

[TJ Spyke]

I worked til 10PM yesterday, and went to bed when I got home. I didn't log back online til my lunch break today at 5pm.

He is making money from the ads, which is that company paying him. It's a shady area, but not as bad as the LP.

You use hyperbole to try and make a comparison that is not valid. You would not be making money from the program. It's already been established law that using a program legally to do something illegal doesn't make the program at fault.

I didn't say profit makes it legal or not. Though companies are more likely to ignore you if you do it for free (though companies can, and have, gone after free uses too).

Nintendo is not profiting from someone else's work. They are profiting from their copyrighted video being used. If Company B makes illegal copies of Company A's work, Company A can legally get all the profit Company B made from it.

And someone else brought up the claim that pics used here (or other sites) would be the same, so I said that pics are generally fair use (though if you have hundreds of pics from the same game, that may no longer be considered fair use).

[UncleBob]

He is making money from the ads, which is that company paying him. It's a shady area, but not as bad as the LP.

Um...  What the heck do you think the people who make Let's Plays are getting money from?  They get money from ad views/clicks that run before/during/after the video.

You use hyperbole to try and make a comparison that is not valid. You would not be making money from the program. It's already been established law that using a program legally to do something illegal doesn't make the program at fault.

So, you're okay with someone using someone elses copyrighted program to create a work that they make money off of?

I didn't say profit makes it legal or not. Though companies are more likely to ignore you if you do it for free (though companies can, and have, gone after free uses too).

Heavily implied ("It changes if you try to profit...")

Nintendo is not profiting from someone else's work. They are profiting from their copyrighted video being used. If Company B makes illegal copies of Company A's work, Company A can legally get all the profit Company B made from it.

So playing through the game, recording it, and making interesting commentary on it isn't work?

And someone else brought up the claim that pics used here (or other sites) would be the same, so I said that pics are generally fair use (though if you have hundreds of pics from the same game, that may no longer be considered fair use).

Pictures are pictures are pictures and they care copyrighted the same.  You don't get to decide what is fair use or not, that is up to the creator of the original material and the courts.

[TJ Spyke]

You are seriously trying to claim using a program to LEGALLY make another program is even comparable to someone willfully violating copyright laws and making money from it? That is just beyond laughable.

Maybe I should have worded it differently, though profit doesn't change legality.

You are not allowed to profit from someone else's work, plain and simple. Playing a game is not work, recording it is not work. Doing commentary? That itself is not illegal, but including video of it IS. If they want to upload just the audio, that is fine.

Ugh, read my comments again. It depends on how much you use. A few pictures is fair use, hundreds is not. Using like 2 minutes of video could be considered fair use, 2 hours would not be. You bring up the creator, and the creator has made it clear how they feel.

[UncleBob]

A single picture isn't fair use simply because it's only one photo.  That's not how it works.

Noticed you completely dodged the fact that sites like NWR will show long periods of video and make ad revenue off them, just like Let's Plays.

Playing a game can, in fact, be work.  Recording it *is* work.  If someone is doing it just for fun, there's no need to record it - you're recording it so that *others* can enjoy it.

And, again, you're okay if I take an existing program and use it to create my own work, in spite of the fact that the original program is copyrighted material that someone else created that I'm using in order to create my own work?

[UncleBob]

Re: One single photo's copyright - look up Eiselein vs. Buzzfeed.  Still working through the courts, but Kai got a C&D issued against Buzzfeed, forcing them to remove his single image that they used without his permission.

[Soren]

And I never said video in general is not fair use, but a 2 hour video is not (fair use would be more like 5 minutes).

You need to stop making up numbers because until a legal case is brought on YouTube and Let's Play players nobody has any idea the exact length that would constitute fair use. It could be 5 minutes or 2 hours.

[TJ Spyke]

And I never said video in general is not fair use, but a 2 hour video is not (fair use would be more like 5 minutes).

You need to stop making up numbers because until a legal case is brought on YouTube and Let's Play players nobody has any idea the exact length that would constitute fair use. It could be 5 minutes or 2 hours.

:facepalm:

I am going on past cases, not specifically YouTube. It doesn't matter, because it sounds like you will only accept it for every individual site.

[UncleBob]

TJ - can you cite any of these "past cases" where a court determined how many minutes/hours of video game footage constituted "fair use" in any aspect?

I'd be interested - as I know back in the day, there were many "unauthorized players guides" put to VHS that would have used significant amounts of video game footage.

[TJ Spyke]

I will continue looking, but I am having trouble locating them. A large part of it depends how much of the copyrighted work they used, which at 2 hours+ may be too excessive (the more video used, the less likely a court is to side with a defendant).

[UncleBob]

Wait - you said you were going on "past cases", yet now cannot cite any of these cases you've been going off of?

[TJ Spyke]

I am having trouble finding them at the moment, I was going off of memory.

[UncleBob]

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

[oohhboy]

He won't find them because they doesn't exist. Let me quote the full article from which I derive my views on this from. I quote it in full because TJ is known not to bother reading articles from other people even when it bloody well answers the question even if it is from an expert of the relavent field. For those who don't read, the article pretty much says the issue is untested and fluid. There is no absurd arbitary length as TJ asserts that make something "Not Fair Use". In fact length has nothing to do with it. In fact commentary isn't needed to make it fair use. So, please keep making stuff up as per your usual M.O.

Yesterday, Gamasutra and other news sources reported on Nintendo's claiming YouTube ad revenues for videos featuring gameplay footage.  Nintendo explained that "for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips."  Apparently, in practice, what this means is that certain YouTubers who were monetizing extended Nintendo gameplay videos will now lose their advertising income stream.  Instead, YouTube will share those revenues with Nintendo.

If you worked to create a video channel and a YouTube subscriber base only to have Nintendo grab your ad revenues, would you be happy about this?  No, you wouldn't.  Zack Scott, a YouTuber with over 200K subscribers, isn't happy.  On his Facebook page, he explains (to a growing chorus of over 8K "likes") that he's giving up on making any more Let's Play videos for Nintendo games: "I love Nintendo, so I’ve included their games in my line-up. But until their claims are straightened out, I won’t be playing their games. I won’t because it jeopardizes my channel’s copyright standing and the livelihood of all LPers."

As Gamasutra reports, other LPers (Let's Play creators) are upset too.  But the claim they make isn't just that they're being deprived of their livelihood.  They also complain, like Scott, that Nintendo is betraying its "fans" and shooting itself in the foot.  A common theme is that Let's Play videos provide "advertising" for Nintendo, building interest in their games and helping to sustain the community of enthusiasts.  (In a similar vein, see this article on game modding by Hector Postigo.)  To put it simply, if Nintendo cuts off Zack Scott's income stream and Scott stops making walkthroughs of Nintendo games, it's Nintendo that loses.

So why would Nintendo shoot itself in the foot?  The answer can be summed up in two words: intellectual property.
As a co-director of the Rutgers Institute for Information Policy and Law, my day job is teaching and researching how intellectual property law applies to new technologies.  I also have a particular affection for the law and business of video games.  So I'm going to break the IP issues here down, as briskly as I'm able, in four component steps: 1) YouTube, 2) copyright, 3) trademark, and 4) IP policy.

1. YouTube

First off, I think it's interesting that much of the media coverage of this situation is simply pitting the Let's Play creators against Nintendo.  This conveniently lets the technological behemoth that is YouTube float in the background in soft focus.  But YouTube should really be front and center in this dispute.  Consider: YouTube created the various "livelihoods" at stake by starting its Partner Program; YouTube orchestrates and directly profits from the advertising monetization of Let's Play videos; it is YouTube's Content ID technology that is helping Nintendo to locate gameplay videos; and finally, Nintendo could never have usurped Zack Scott's ad revenue streams if YouTube didn't enable that action.  YouTube is smack in the middle of this dispute, and it is playing on both sides of the field.

But, in a way, that's a legally mandated position for YouTube, if YouTube wants to stay in the good graces of the copyright regime.  From the standpoint of intellectual property law, YouTube's actions as an intermediary are primarily governed by the rules of the Digital Millenium Copyright Act, and 17 U.S.C. 512(c) in particular.  As an online "service provider" under that statute, YouTube can be shielded from liability for the copyright infringements of its users, but only so long as it complies with the "notice and takedown" requirements of the statute.  This means that when a copyright holder informs YouTube that a particular video infringes its rights, YouTube must "expeditiously" disable public access to that content.  YouTube must also comply with many other requirements of Section 512.  For instance, it must terminate account holders who are repeat infringers and must accomodate "standard technical measures" that relate to copyright policing.
So, essentially, in order to benefit from the "safe harbor" of Section 512, YouTube is required by law to play nice with the copyright industries.  Apparently, in this case, YouTube has made the decision that playing nice means that Nintendo, not Zack Scott, is the rightful owner of the advertising revenues that are generated by Zack Scott's Let's Play videos.  As YouTube states in its monetization policy, "Videos simply showing game play for extended periods of time may not be accepted for monetization."
So YouTube owns its platform and it can run the platform as it sees fit.  But is giving Nintendo the advertising revenue stream here the right call as a matter of copyright law?  That's a tricky question.

2. Copyright

Among the general public, copyright law is an increasingly familiar concept.  Still, that doesn't make copyright "ownership" any less weird as a theoretical matter.  We know what it means to own a physical item, but when we say Nintendo "owns" fictional characters such as Mario, Toad, and Princess Peach, what does that mean? 

From the standpoint of copyright law, "ownership" means that Nintendo has the exclusive right to reproduce and distribute copies of the many works that incorporate those particular characters.  Nintendo also hold the exclusive rights to adapt those works into new forms of media and to "perform" those works publicly.  You can find these and other exclusive rights (there are six in total) in the copyright statute at 17 U.S.C. 106.  In theory, a Let's Play video could infringe upon several of those rights.  The uploaded videos (arguably) reproduce Nintendo's work, perform it publicly, distribute it, and may even create a "derivative work" based on it.

But does that mean that all unauthorized uses of recognizable Nintendo works on YouTube are always infringing?  No.  Indeed, it's notable that, in its statement, Nintendo referred to "Nintendo-owned content, such as images or audio of a certain length."  That's a curious qualification for Nintendo to make as the copyright holder -- why "of a certain length"?  I think Nintendo is probably admitting that short clips of gameplay footage, when used in the context of commentary or criticism, are not subject to Nintendo's exclusive control.  This is because the copyright statute, at 17 USC 107, makes it clear that the public has a right to "fair use" of copyright-protected works.  This means that, without Nintendo's authorization, the public, in certain circumstances, is entitled to use Mario, Toad, and Princess Peach "for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research."

So doesn't that apply directly to Zack Scott?  Isn't a Let's Play video a form of commentary or criticism under Section 107?  Maybe it's even a form of "news reporting" or "teaching"?
Perhaps, but the case law on fair use makes it clear that not all uses of a work in "commentary, criticism, news reporting", etc., will be fair use.  It's certainly possible to use a work and comment upon it, yet to use too much of the work and thereby exceed the protections of the fair use doctrine.  For instance, I could not republish the entire first Harry Potter book with a few additional comments added, and claim that act of reproduction as a legal fair use.  It may be that Nintendo believes game play videos "of a certain length" will be categorically outside the bounds of fair use and should be exclusively within its control.

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.

I'm hardly certain that the average federal court would accept that argument, but I do know that such evolutionary twists and turns are common in the law of fair use, which is notoriously unpredictable.  Indeed, I think part of what may be motivating Nintendo's move here is the concern that the unauthorized monetization of gameplay video performance is rapidly becoming the "new normal."  Nintendo may be concerned that if it doesn't assert its copyright interests, courts will ultimately start to accept the practice of monetizing unauthorized game play footage as a conventional form of fair use.  And that sort of rule could have significant repercussions for the emerging North American pro-gaming scene.  (As a point of comparison, see, e.g., T.L. Taylor's discussion of Blizzard's dispute with KeSPA in her new book.)

3. Trademark

Although copyright is the IP language being used by all the parties here, it's worth pointing out that Nintendo's IP rights aren't limited to copyright: Nintendo also claims trademark rights in Mario, Toad, Princess Peach, etc.  (The "Princess Peach" trademark is at Reg. Serial No. 85,497,172, if you want to look it up.)  In theory, trademark law is narrower in scope than copyright law.  Trademark is intended to protect consumers from being deceived about the source of the goods and services they find in the marketplace.  And personally, I don't think most people watching a Let's Play video featuring a Nintendo game are going to be confused about the origin of the video.  In other words, I doubt anyone would presume Zack Scott's videos are the works of an employee working for Nintendo.

However, in recent years, some trademark owners have become much more aggressive about their IP rights.  Some have sued, for instance, filmmakers who make humorous references to their products without authorization.  Statutory expansions in the legal protection of brands, such as the Trademark Dilution Revision Act, may apply to famous video game characters, such as Mario and Luigi.  For better or for worse, many trademark owners feel legally obliged to actively police against unauthorized commercial uses of their brands.  This means that concerns about Nintendo's trademark interests, as well as its copyright interests, may explain Nintendo's efforts to limit the emerging business models of Let's Play monetization.

In summary, while Nintendo may indeed be shooting itself in the foot by grabbing the revenues from YouTube Let's Play creators, it may think this short term sacrifice makes sense in the long term.  Nintendo may be willing to shoot itself in the foot today rather than allow unauthorized monetization to shoot it somewhere closer to the heart in the future.  Nintendo may see today's Let's Play monetization as the tip of a looming user-generated iceberg.  It may view the loss of "free" advertising as preferable to the loss of exclusive control over the performance of its games and its associated brand.

4. Policy

Finally, I'll want to add a brief appeal to you, the reader.  Nintendo might be making a mistake, but it is surely pursuing what it believes is best for its own interests.  But in the context of IP rights in video games, what do you think is in the best interest of the public?  What should be the scope of intellectual property rights in video games?

This isn't just an idle question -- it is a matter that is being debated in Congress right now. The day after Zack Scott complained about Nintendo's YouTube actions, a Congressional subcommittee was considering how copyright law might be better adjusted to our new digital era.  Copyright law is hardly set in stone.  Periodically, Congress rewrites the copyright statute in very significant ways.  It seems that a new balancing of digital copyright law is on the horizon in coming years.  But in the case of new media, what should that balance be?  Would we be better off in a world where Zack Scott could monetize Nintendo games in Let's Play videos to his heart's content?  Or is it better if Nintendo has the right to sue unauthorized Let's Play creators for statutory damages?

At present, I'm trying to come up with my own answers to that question, in part by gathering data about the extent of contemporary creative practices surrounding games and other new media.  As part of a project funded by the National Science Foundation, I'm doing research on the extent and nature of user creativity online.  I'm looking at YouTube and many other forms of game-related creative production.  So, if you have a second, I'd be very interested in knowing about your own creative practices related to video games.  I've posted a survey online here.  My research team hopes to publish the results of the survey, as well as other research from the project, by the end of the summer.  And in the meanwhile, I'd be interested in hearing your thoughts about the rights and wrongs of the Nintendo / Let's Play kerfuffle in the comments below.

[TJ Spyke]

Actually, length does factor in, and has for other copyright cases (the ones I found where considered not to be infringing because they were only short clips and not long).

And the article you posted even supports what I say in that fair use does have limits and that includes how long the video is. The example cited is you can't re-produce a Harry Potter book and get away with it by adding your own comments to it. Just like you can't produce a very long video of a game and get away with it just by adding your commentary.