The Business Side of Video (Space) Games EXCLUSIVELY ON IDLE THUMBS

[Dewar]

The problem in this case isn't so much that LPs violate copyright so much as Nintendo wants the money.  Basically, what they're doing is taking all the revenue generated by ads during the videos, and saying "we want it because we made the game" instead of letting that money go to the people who made the video.  Obviously, they're legally allowed to do so (since they are) but money generated by ads is nothing compared to the revenue generated by hardware/game sales.  Really, a lot of LPs function as free advertisement since the people making the videos don't claim to have made or own the games and are usually just showing how much fun it is.  I was convinced to buy Minecraft because of LPs.

 

Fair use laws (which are already confusing enough as is) get even more difficult once someone starts turning a profit off of it. I wonder if they served up Giant Bomb with a legal notice.

[jeremywc]

The problem in this case isn't so much that LPs violate copyright so much as Nintendo wants the money.  Basically, what they're doing is taking all the revenue generated by ads during the videos, and saying "we want it because we made the game" instead of letting that money go to the people who made the video.  Obviously, they're legally allowed to do so (since they are) but money generated by ads is nothing compared to the revenue generated by hardware/game sales.  Really, a lot of LPs function as free advertisement since the people making the videos don't claim to have made or own the games and are usually just showing how much fun it is.  I was convinced to buy Minecraft because of LPs.

 

There's a difference between an multiplayer open world game like Minecraft and a single player story driven game like Legend of Zelda, though. If all you want to know is what happened in a game, then watching footage from a play through could also kill your desire to buy the game. I found a leak of all the cinematics from Heart of the Swarm that succeeding in killing my interest in purchasing the game, because I don't really play multiplayer StarCraft. LPs for story driven single player games aren't too far removed from throwing a DVD rip on YouTube, IMO.

[SecretAsianMan]

That is true to an extent, but the real focus on most LPs isn't the game itself but rather the experience of playing the game and the commentary of the person/people playing the game.  It's the same reason the Saturday Streams are great.  Not because we can watch someone build a rocket to send Kerbals to the Mun, but because we can watch Nick realize he has no fuel while Chris serenades us with Space Asshole.

[syntheticgerbil]

Well maybe it will convince people to stop putting ads on all of their videos, I don't know. I'm fucking sick of every Youtube video now requiring me to wait for an ad to play when it's often the user reposting someone else's video or putting copyrighted content on display with ads on their own channel.

 

I can't see how this would hurt anyone who legitimately loves throwing Let's Play videos together just for fun. That's how it started in the first place, not for cheap ad revenue.

[tegan]

Jeremy Parish elaborated quite elegantly.

 

I can understand why YouTube folks are upset about this. It seems like horrible corporate horribleness from the outside.

But I'm surprised and disappointed by all the folks in the press who jumped up on a soapbox to declare Nintendo to be Stupid and Bad. A rudimentary understanding of intellectual property law should be mandatory for journalists! It's important!

Nintendo is actually obligated to do things like this to protect their ownership rights. American copyright law is vile and weighted heavily in favor of preserving corporate ownership of concepts in perpetuity, but there are ways to break that control. If a property owner doesn't take good-faith measures to protect its ownership of its material, their ownership that material will at some point no longer be legally defensible and the content will pass into the public domain.

I think they're managing this balancing act really well. They could have been stupid like certain other game publishers and just shut down all YT videos containing their material, but instead they simply forbade people from making money off of Nintendo property. It's essentially saying, "Hey, it's cool to use our stuff for your work, but we're the only ones allowed to profit from it."

I've seen some people cite Fair Use as a defense, but that means they don't understand the nature of Fair Use. The doctrine of fair use places very exact limitations on content: It can only be for academic or critical purposes, and the material reproduced must be less than a certain percentage of both the original work and comprise less than a certain percentage of the derivative work -- I don't remember the exact percentage, but it's something like 25%.

Anyway, there was no way Nintendo was getting out of this without a black eye, but I guarantee they infinitely prefer a bit of pissy public relations for a while to seeing Mario pass forever into the public domain.

[syntheticgerbil]

Bravo!

[Henroid]

The fact of the matter is, YouTube policy actually addresses the monetization of Lets Plays.

http://support.google.com/youtube/bin/answer.py?hl=en&answer=138161&topic=1115890&ctx=topic

 

Without the appropriate license from the publisher, use of video game or software user interface must be minimal. Video game content may be monetized if the associated step-by-step commentary is strictly tied to the live action being shown and provides instructional or educational value.

Videos simply showing a user playing a video game or the use of software for extended periods of time may not be accepted for monetization.

That Jeremy Parish quote though is pretty accurate to the whole thing. My whole angle in this is that monetizing Lets Plays has forever existed in a gray area and people are suddenly surprised about the other shoe dropping.

[SecretAsianMan]

I admit my initial reaction was a bit of a knee-jerk defensive one along the lines of "Nintendo bad, boo".  I still stand by my statement that LPs have done more to persuade me to buy a game than any advertisement has, but I completely agree that current copyright law is terrible and can understand Nintendo wanting to protect its property.  I feel like there should be a better way to let people show how fun it is to play a game without either party saying "give me the monies" but I don't know what that way is.

[Ucantalas]

I feel like a lot of responses to this are knee jerk "Nintendo is being an asshole" responses, when in reality they are not doing as bad as they could (say, requesting all videos be taken down). I might be underestimating the impact here, but now that Ive had time to think about it... I don't think its that much of a big deal that Nintendo is actually trying to hold onto their intellectual property.

[syntheticgerbil]

I mean does this grant Nintendo the ability to force ads on any user's video of them playing a Nintendo product? Or is it a case where if someone opts in to ads on their posted video, the money goes directly to Nintendo if it is IDed as one of theirs? I don't quite understand how Youtube works in response to acknowledging you are posting copyrighted material or not outside of taking it down or removing audio.

[Henroid]

I mean does this grant Nintendo the ability to force ads on any user's video of them playing a Nintendo product? Or is it a case where if someone opts in to ads on their posted video, the money goes directly to Nintendo if it is IDed as one of theirs? I don't quite understand how Youtube works in response to acknowledging you are posting copyrighted material or not outside of taking it down or removing audio.

With respect to the changes affecting only the ad opt-ins or just anything, nobody knows yet.

 

As for YouTube's systems, it's very much a shotgun. Lots of things in the automated process get picked up that shouldn't. Now, they do have a method where you can contest the targeting of videos and accounts, but it's not streamlined at all yet and a big pain in the ass.

[Zeusthecat]

Maybe I reacted too harshly too. But at the same time, let's be honest, it takes a hell of a lot for something to officially be deemed a part of the public domain. I seem to remember Xerox or some similar company running up against this issue years ago and they still ended up keeping their rights to their trademark despite the fact that their trademark had for the most part been genericized. 

 

I think as a whole the move may have been more of a detriment on Nintendo's part just because most people would see it as a dick move. Yeah, they may have been protecting their IP but does it really matter all that much? Had they not made the move I doubt there would have been any substantially increased risk of their IP entering the public domain. In reality, I think they just ended up pissing some people off but at the same time maybe made a few extra bucks. In the end it's probably all pretty inconsequential. They still make good games and it's no reason to boycott Nintendo. But maybe still reasonable to be a little irked by the move.

[Ucantalas]

Now, before I say what I'm about to say, remember that I am not a lawyer.

But I do recall hearing that one portion of... either copyrights or trademarks? ... was that the owner must take action to prevent people from using it as they see fit. Now, granted, I doubt Nintendo is in danger of losing IP to inactivity or what-have-you, but it's one thing to consider. Maybe.

All that said, I think a lot of people are overreacting. And people who do those videos for money will switch to other games. Theres a whole WORLD of games out there.

[shammack]

If a property owner doesn't take good-faith measures to protect its ownership of its material, their ownership that material will at some point no longer be legally defensible and the content will pass into the public domain.

 

Has this ever happened? Can it actually happen? I've never heard of it. My understanding is that copyright lasts seventy years past the death of the author, period. I feel like he's confusing copyrights with trademarks. 

[Zeusthecat]

It mostly applies to trademarks. But even for copyrights and patents if they don't do some level of policing to prevent infringement it could technically enter the public domain. Most cases are with trademarks though, i think it may have happened with vasoline but don't hold me to that.

[TychoCelchuuu]

Just because Nintendo has to take action doesn't mean it has to take control of ad revenue. In this case protecting its trademark is as easy as giving YouTube content makers permission to monetize their content. This would stop infringement by making it hard/impossible to infringe.

[elmuerte]

You do not have to actively protect copyright, it's yours "forever" and violators will always have to compensate (especially when used in a commercial context).

For patents, you don't have to actively protect them either. But when you want to get license fees from a company that has been violating your patent for years, and you could have known about it, then the judge will probably not grant you the satisfaction of license fees from the past years. But you still own the patent, and you can still charge license fees from others.

Trademarks you have to protect actively, otherwise you lose it. It's part of the trademark terms. However, protection only applies to competing products in the same protection field. You cannot use trademarks to license people/companies from using the name of your product to identify your product. For example, Apple cannot claim illegal use of trademark when Samsung says "Better than the Apple iPhone 5".

[Henroid]

Just because Nintendo has to take action doesn't mean it has to take control of ad revenue. In this case protecting its trademark is as easy as giving YouTube content makers permission to monetize their content. This would stop infringement by making it hard/impossible to infringe.

 

Giving permission for use in such a broad-sweep without any other action gives the perception - legally speaking - of lack of protection. Our sentiments don't matter, legal precedent does.

[SecretAsianMan]

I just saw that Interplay grabbed the rights to Freespace for just $7500.  That seems criminally low to me.  I loved Freespace 2 and I don't even like flight/space combat sim games.  I'd like to think this could mean a Freespace 3 at some point, but I seriously doubt it.

[Sno]

You should probably be pretty sad that the shambling corpse of interplay is where it ended up, because it almost certainly means nothing will come of this.

[Dewar]

Since when could Interplay buy anything? Wasn't their last property the Fallout MMO?

[Henroid]

I can't remember what episode this was from, but a long time ago in Idle Thumbs Chris was speaking about E3 (or GDC, I can't remember which) saying that it would get him excited for video games - then he would see the NPD data after and say in defeat, "Oh. Fuckin' whatever."

 

I guess that's definitely happening this year.

 

NPD report shows software, led by Injustice: Gods Among Us, down 44% as total industry sales fall 25%. Software sales were the lowest since May 2000

[BenLuke]

NPD doesn't take into account Steam or any digital sales of any sort, so everything they say is bullshit based on incomplete information that can be safely ignored.

 

From a few months ago, but still relevant: http://www.penny-arcade.com/report/article/its-time-for-the-gaming-press-to-grow-up-and-ignore-the-npd-group

[brkl]

Movies are dead. Nobody's been able to sell a single VHS tape in the past five years.

[tegan]

So I guess you can really tell which browser Microsoft owns now.