

Nintendo grabs money, control from fans promoting its games on Youtube - c-oreills
http://penny-arcade.com/report/article/nintendo-takes-legal-action-against-its-own-community-claims-rights-over-yo

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DanBC
It's a stupid move by Nintendo.

Some people view Let's Plays before buying a game. People aren't going to go
to the trouble of recording Let's Plays without getting any kind of ad revenue
from it. So people aren't going to bother recording Nintendo games anymore.

And they can just delete all the Nintendo videos they already have up. So now
Nintendo doesn't have anyone promoting their games (for free to Nintendo) and
isn't getting any of the very small amounts of ad revenue and is competing
against a bunch of other games that do have Let's Plays up online.

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_pmf_
> Some people view Let's Plays before buying a game.

Maybe the reasoning is that this is not very beneficial to Nintendo, since
most of their games are visually at most a "Meh".

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freehunter
Really? I've always held that the common thought was that Nintendo games are
very stylistic and artfully designed. I hear people talk for days about how
beautiful the new Zelda game is or how artistically styled the new Mario game
is. They might not pump out the most pixels, but they can designed around
their limitations.

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belorn
How can Nintendo claim ownership of the videos? I can see how they might claim
ownership of the images and in-game sounds, but the commentary and actions
made by the player is the ownership of the player.

Taking control of content which they only have partial legal right to is still
very much illegal and copyright infringement. They are basically knowingly
committing commercial piracy, including sending knowingly false take down
notices (if they claim complete ownership). In times like that, the authors of
said videos has a good chance to sue for damages.

~~~
raganwald
"Claim ownership of" is within the context of YouTube's ecosystem and
YouTube's TOS. As a YouTube partner, they have the right to monetize videos
that YouTube agrees they "own," block them, &c.

I don't think that asserting ownership within YouTube is equivalent to
asserting legal ownership of all of the IP involved. For example, I can't see
them rebroadcasting any of these videos in another medium.

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belorn
Can the actually author of the video take down the videos (ie take control of
the copyright)?

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sp332
Yeah, the video is still on the account and under control of the original
uploader. The only thing that's changed is they can't control is that the ads
on their videos now fund Nintendo instead of themselves.

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tlarkworthy
Presumably Youtube asked the same question to Nintendo that Youtube did to
Mojang, do you want to monetize your trademarks? Mojang declined earning off
Minecraft's massive youtube impact[1], Nintendo wanted the cash.

And so we can clearly see Nintendo has lost its way and Minecraft is the the
new Nintendo.

[1] <https://twitter.com/notch/status/335045859156819969>

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antidaily
This is key, I think. YouTube probably came to Nintendo. Like, sales guys.
"Hey, here's 8 figures you could be pocketing".

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shawabawa3
Why would youtube do that though? They get their cut whether it goes to
nintendo or the channel owner, and in fact it makes a lot more sense for them
to keep the money going to the channel to incentivise them to make more videos

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witek
They could have given it as one of the reasons to entice Nintendo into the
partnership program.

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ttt_
On one side there is huge incentive to be social on the web, which paramounts
to sharing stuff with others.

On the other side, no one will let you share their content.

If the world were a person, he would be right on track for schizophrenia.

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adamors
It's not entirely Nintentdo's content though, is it?

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J_Darnley
No, I believe most of these "Lets Play" videos contain commentary voice-overs
by the players, but neither they nor Google care about this with the Content
ID system.

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freehunter
I'm not a copyright lawyer, but that sounds like an unauthorized derivative
work. For fair use to apply, the work has to be transformative, changing the
original work in a substantial way. Since I'm not a lawyer I don't know if
recording your own voice over the video would be considered significantly
transformative or not.

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LanceH
The original work is an interactive piece of software.

The videos in question are people showing what can be done with something
which is copyrighted. They videos don't provide any ability to play the game.
The games are only being played by a single person. There is no copy of the
game being made.

A running commentary of a single played instance of a game is entirely
different than sitting down with a controller in your hand and playing the
game. That seems significantly transformative to me.

~~~
freehunter
The audio/visual aspect is kept. Interactive gameplay is simulated. The person
watching gets to see the story unfold. It's clearly a derivative work, the
question is where does the line stand and does making a LP cross it?

And that's a huge problem with copyright law, it's so grey in so many areas.
If the exact situation hasn't been defended in court, it's unclear whether or
nothing something is legal.

~~~
LanceH
The story playing out is one thing that makes it a tough call where the line
could be drawn.

What if it isn't a RPG? What if we're talking about a video of mario kart?

If I bought a physical Nintendo chess set, I don't think anyone would claim a
video of my gameplay would be Nintendo's property. By extension, a video of me
playing a virtual nintendo chess game with my commentary should still be mine,
after all, the story is being written by the players. I think that's fairly
analogous to a commentary of a mario kart game.

Now it gets interesting with a role playing game like zelda perhaps. I
certainly have a right to produce a gameplay from it. Do I have a right to
record it? Why not? How is it really any different that recording a play with
a physical object, something which is done every day. Nintendo may have the
storyline, but they didn't create the actual play. That is a result of an
authorized use of the game. Player runs over here, picks up a sword -- that's
something the player did, not Nintendo.

I think in the end it boils down to what the lawyers can convince a judge is
true, rather than what can be proven or what is the law.

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sillysaurus
A good analogy is buying a car. If I buy a car and make a video at the beach
that happens to include the car, what right does the car manufacturer have to
say, "The video incorporates my IP, so therefore we're going to force you to
show ads for our car"?

You could argue that videogames are somehow different. But they're not. If
someone makes a video about having fun with their friends, then the game
they're doing it in is almost incidental. For example:
<http://www.youtube.com/watch?v=uD5J5LEBVCk>

Videos such as that one take a lot of work to make. It takes many hours to
record the content, many hours to edit it, and a way to promote it once it's
made. The game maker probably doesn't deserve any slice of revenue generated
from that. The game is incidental.

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bvdbijl
I wouldn't really call that a great analogy, a better analogy would be if you
record a video of you showing the insides of the car and going on a trip where
you describe how the car drives. But still, dumb dumb move by Nintendo

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arkitaip
Christ, how deep in trouble is Nintendo if they are going after youtubers' -
i.e. their marketing partners - money? I mean, what kind of revenue are we
talking here, a couple of millions?

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witek
Yeah, nuts. Also, did nobody there work out how much they would have to PAY
for this much coverage?

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lomegor
All these articles are assuming Nintendo will get the whole profits from the
videos, but I'm not seeing that in any sources. Does any one have more info on
that? As far as I understand it, Nintendo will only get a cut from the
profits, YouTube another cut, and the rest will go to the creator of the
video. Not that it makes the move much better, but I think it's important to
note if people can still make money from Nintendo Let's Plays.

The other thing I would like to know if anyone has more info, is if this in
fact, affects Let's Plays. Maybe they were only going after machinima, or
videos that show trailers or cutscenes. Is there any source where I can read
more of that? I think this could be the crux of the issue: if they aren't
trying to get money from Let's Plays, the move isn't so bad. EDIT: NVM, read
the original source and they are claiming LP videos... that's sad, really.

What I find weird about this whole thing is that neither Nintendo or YouTube
have issued an explanation of how things are going to work, and why they think
the move is a good one. With all the backslash that this has created in the
last week, I would think those companies would like to offer their side of the
argument.

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zamalek
Quick question for the legally-knowledgeable here (I am not an LPer and won't
act on the knowledge, just want to know if what I know about the law is
right).

As far as I know when you use any recorded human product (voice, movement,
etc.) you need a signed "release form" from the people involved in that - else
you stand to be sued for damages (due to rights violation, nothing to do with
copyright, although I guess the LPers could have a case there as well). Music
artists, for example, need to sign one of these release forms to give their
publisher the rights to their voice.

Considering that the LPs are 50/50 Nintendo/LPer couldn't the LPer's [in
theory] lash back and demand royalties because Nintendo illegally become their
publisher without acquiring release forms (the YouTube EULA is between the
LPer and YT, not the LPer and Nintendo)? Or indeed demand damages that far
exceed any form of profit they have lost from the adverts in the first place
(rights violation)? Or am I completely wrong?

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xanadohnt
You're killing free advertising, Nintendo. Good move.

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specto
I understand that some people view this as a bad thing, but if you want
Nintendo to keep making games and consoles, some revenue would do them good.

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sillysaurus
Ad revenue won't help them if they die as a videogame company. This is a long-
term strategic mistake.

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mistercow
I don't even know that it's that long-term of a mistake. We can expect
professional quality Let's Plays for Nintendo games to die off almost
instantly (since it's no longer a profession if Nintendo takes all the
revenue), and for the people who do them to switch to non-Nintendo games.

In other words, they aren't even going to make very much money off of this in
the short term, and they're driving the free advertising to their competition.

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rusbra
Nintendo taking after Sony.

