I still don't think fans should get to make money from other people's copyrighted work. You want to get paid money for playing others games and talking about it?

That's kind of what video reviews are. I suppose there are two ways to look at it. You get into a gray area where you have to ask whether they're getting paid because of the game they're commenting on or because of the commentary on the game.

I have no real opinion on this. I typically don't watch those Let's Play videos unless I'm looking for a secret room/item or I just cannot figure out how to complete something and Gamefaqs didn't help.

Should websites like NWR get to make money from other people's copyrighted work?

It's called value adding. Let Players are not being paid to showcase the content that's already in the game, they're being payed for the content they themselves produce. The people who watch these videos in huge numbers in most cases aren't interested in viewing the games, they these videos to listen to the commentary. The reason Let Players are able to generate ad revenue in the first place is because they are creating value where none existed.

I'm not saying video game companies are wrong in trying to protect their IP, but let's be honest, without the people and personalities producing these videos who would want to watch gameplay of Sonic 06 or TMNT for the NES?

Am I going crazy or has someone moved the modify button?

NWR doesn't post 2 hour videos of copyrighted content, adding nothing more than commentary.

I take it you haven't seen any of CurtDogg's Backlogg?

And why is it you're only concerned with posting two hours worth of copyrighted video?  Screen shots, box arts, sound files, art work, press releases - those are all copyrighted as well...

It only seems to be in talkbacks and podcast discussion.

Ahh. Ok.

I keep clicking where 'Modify' is usually situated and end up accidentally quoting myself. It has happened like 3 or 4 times, lol.

The website name is copyrighted as well :) and honestly NWR has no website without Nintendo content.  I view youtube as a form of video journalism so I think this is a very valid argument on why they shouldn't worry about it unless they try to shut down all fan sites.  I'm sure you can find some let's play videos where they add nothing, then I bet you can find some where they add alot.  Much like the good websites draw people to them, good let's play videos draw people to them. 


It doesn't make sense either.  Video games are not movies.  I want to produce my own interactive experience with them.  If they were movies, yes I can see wanting to shut them down but they aren't.  It's like free advertising for Nintendo products. 

"Nintendo" is trademarked, not copyrighted. Also, Nintendo allows it because it falls within fair use and is not demeaning. The pics on the site are almost always provided by the publisher. It's not fair use to post 2 hours of video.

So... BackLogg...?

So the NWR news segment should be shut down?

along with any ad revenue from visiting the podcast page and the forums...
I think we'd be down in time for school to start if we followed your advice

News is different since Nintendo only has to put out a press release (side note: are those really copyrighted?) and NWR writes up the story and host a site that people like us will check everyday for news and discussions (like this one!).

Screens shots are also released promotionally and are more valuable because of news sites.

Virtually everything you create is copyrighted the moment you create it.

So, yes, press releases are copyrighted.  This prevents CompanyX from taking CompanyY's press release, swapping the name brand of the product, then releasing it as their own.

As for screen shots - many news/reviews sites create their own screenshots - which would seemingly fall under the same type of copyright as these videos.

TJ - let me ask you this, if you'll ever answer (still waiting for an answer about BackLogg)...  If I use a program, say Microsoft Word, to create a work, say a novel, should that novel be Microsoft's to profit from, since I used their copyrighted program in the process of creating my work?

Semantics.  Trademarks are protected as well and Nintendo has reason to keep their trademark strong. 


Doesn't the publisher publish the game?  Isn't any screenshot then released by the publisher?


These let's plays are no-more demeaning than a poor review or an opinion article about Nintendo's lack of creativity or poor choices, etc. 


The video is not the product.  The game is the product.  Literally, someone could show themselves beating the game and I'm not entirely sure why Nintendo would want to limit it.  I think it would be boring as crap and I wouldn't watch it, but I don't see how it would prevent people from buying the product.  I've never thought I would rather go home and watch somebody play Wii U on the internet instead of playing the Wii U. 


There are only 3 reasons to watch online.  1 - See if the gameplay is interesting and if I want to buy it (review) 2 - See how to beat a part in a game I can't figure out 3 - See an ending to a game that I can't/won't beat or has multiple endings and I don't want to play through it again.  There is no watch somebody play  the game in the entirety instead of purchasing.  That's why the analogy to music/movies is a bad one.  You get the entire product when you watch those. 

or 4. you happen to enjoy the commentator, which could bring you to 1. or you are a person that wasn't going to buy it anyways

Social media is now being utilized heavily to market products.  I'm not a big let's play video watcher, but I like to watch reviews online.  Some of them have have hundreds of thousands of views.  That makes the game valuable and doesn't give them the product.  Sure they could use their commentary to rail on Nintendo, but "news" sites do all the time as well. 

FWIW, I've watched some of the videos on Zack Scott's youtube channel.  I don't normally watch LPs, but I do find him to be genuinely funny and entertaining.  Thus far, I've watched his videos on Telltale's The Walking Dead and Jurassic Park, as well as The Last of Us.  I guess I sort of enjoy his reactions to getting attacked by dinosaurs or zombies.

In the case of JP, I mostly watched it because it was a way to enjoy the game that I probably wouldn't have bought on my own (due to the reviews about the controls).  I was still curious about it, tbh, but I think I enjoyed it much more by watching Zack's playthrough.

That's weird. A press release is not something I'd ever think of as copyrighted. Good to know.

THIS

I wonder if this was the only way for Nintendo to actually see how much they were leaving on the table and decide if that was effective marketing.  If one Let's Player is making $1 Million dollars off revenue then Nintendo be better off doing these in house but, if they make $100 Dollars its an effective marketing tool.  Google probably wouldn't tell them till they took the copyright.  Now that they know they are returning them.  Also a way to allow people to know Nintendo has a recourse if someone goes out of their way to really trash their image through Lets Play.

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.

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.

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.

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.

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)?

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

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.

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.

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

Did Nintendo ever do anything like this for Twitch?

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).

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.

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).

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.

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

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

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

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.

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.

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?

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.

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.

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.

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).

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

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

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

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.

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.

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

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

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.

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

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.

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?

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.

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).

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*

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

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.

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...

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.

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".

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.