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Jake

Idle Thumbs 107: GIANTBOMB.COM

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So is Jake telling us that J Allard's style was modelled on Alan Wake and not the other way around?

And is it coincidence that the games of Xbox 360 hype man Alan Wake games are this week's humble bundle, just as the Xdawg was #Xrevealed, or has Absent Allard been pulling strings all along?

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I find it funny that a black box has such polarizing opinions about whether it looks cool or not.

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I would actually direct people to Retsupurae's comments on that Nintendo thing (they have a podcast they host via YouTube in addition to their other content). They have pretty much the most accurate approach to the whole subject.

I listened to the first 20 minutes or so and am currently too angry to fairly regard any cogent arguments presented later on. Okay, I shouldn't have read the comments first, but disregarding that, if you want to seem unbiased then characterizing the response as "kneejerk overreactions" may not be a good way to start. I'm super fucking annoyed that apparently no one understands the concept of transformative fair use and fully expects to cede all rights to corporations for 'intellectual' content, despite all of that content being built with tools owned by Adobe or Microsoft or whoever. Apparently, it makes a world of difference if it has a character on the box whether you're allowed to use it to make something else.

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I had a good time listening to this episode.

 

I was laughing to myself about Chris’s story about why he stopped playing Metro 2033. It’s funny how memory works or how inconsistent it is. I remember Chris telling that same story back a few years ago, I believe the ending was a little different. I specifically remember that story because it simultaneously made me want to play and never play Metro 2033.  I guess you could blame Nick Breckon for completely stomping all over it.

 

It got me thinking about how I do that kind of thing too. Something happens, an event or crazy thing, and your recollection of it to a friend completely works, knocks it out of the park, you get the energy right, the pace, your friend gives you great feedback (via excited gasps and other empathetic responses). Anyway, it gives you a buzz, and you think "Yes that's a good story!". However, the next time you tell it, it's less fresh, maybe whomever you’re telling it to responds less empathically (maybe's heard it before), you compensate by exaggeration, inadverently "changing events", but it still misses and you end up flailing around in a disappointing anticlimax.

 

 

Anyways, chin up Chris! :)

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I'm super fucking annoyed that apparently no one understands the concept of transformative fair use and fully expects to cede all rights to corporations for 'intellectual' content, despite all of that content being built with tools owned by Adobe or Microsoft or whoever. Apparently, it makes a world of difference if it has a character on the box whether you're allowed to use it to make something else.

 

I don't think it's that no one understands. Nor even that no one cares. More that nobody has the money to fight Nintendo's lawyers, and if you're going to pick a hill to die on (get litigated into the poor house on), there are worse offenders out there.

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I think it's some of each tbh. I think that we've gotten so beaten down in regards to fair use rights that a lot of people don't even regard them as rights any more because it's impossible to defend them in court against corporate pockets. Really, I'm not even terribly upset at Nintendo: What they're doing is stupid and unethical and on shaky legal ground, but if they want to make stupid decisions I'll be happy to watch it bite them in the ass.

 

No, what makes me mad are the apologists who think it's completely okay that corporations steal the meager revenue of buskers just because they provided them the tools to make their content. I don't think people would be okay with it if Adobe or Microsoft started collecting ten percent of their pay, and I'm not clear on what's qualitatively different when it comes to creative works as opposed to technical works. Everything in the modern world is built on top of everything else, and to decide that this is where the line is drawn and to then deprive entertainers of their income on that basis is fucking absurd.

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Just to get everyone up to speed, Microsoft is saying they're aiming for a billion units of the XBone to be sold in its lifetime.

http://www.vg247.com/2013/05/24/xbox-one-microsoft-aims-for-1-billion-lifetime-sales-100-million-xbox-360-units/

 

What is the closest any console has gotten to this? As of March of 2012 the Playstation 2 sold 155,000,000 units and the Wii has sold 99,840,000 as of March of this year.

 

Edit - Okay the original source article has updated to clarify that Microsoft is saying that all consoles this gen will sell a combined 1 billion units. Which is still absurd, but at least it isn't out-there-crazytown.

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How many times are they planning them to be multiple sales as a replacement to the same individual? Like 3-4?

 

 

e: Re - things you learned when you played video games, I answered questions in college that I knew because I'd played Age of Empires and Civilization.

 

I may have been taught those things later, but that's where I learned them.

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That just sounds absurd.  If it truly takes off running people will look to copy their vision.  You can expect a company such as Apple or Google to release something that you can plug your cable box into and control and watch videos, listen to music, etc.

Just to get everyone up to speed, Microsoft is saying they're aiming for a billion units of the XBone to be sold in its lifetime.

http://www.vg247.com/2013/05/24/xbox-one-microsoft-aims-for-1-billion-lifetime-sales-100-million-xbox-360-units/

 

What is the closest any console has gotten to this? As of March of 2012 the Playstation 2 sold 155,000,000 units and the Wii has sold 99,840,000 as of March of this year.

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Neither Apple not Google would do that, they want you spending money to watch that stuff in their store, not off cable. AppleTV like services is about as far as they'd go I'm willing to bet.

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The original source article has updated to clarify that Microsoft is saying that all consoles this gen will sell a combined 1 billion units. Which is still absurd, but at least it isn't out-there-crazytown.

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I did find it hilarious, the idea of seeing a murderer in your Kinect-reflection, turning around to see no one, then turning back to see the illumi-room has scrawled blood across your living room.

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They were just quick examples, basically what I'm saying is if Microsoft even starts to approach half a billion sales, there are going to be copycats that cut into their market share.

Neither Apple not Google would do that, they want you spending money to watch that stuff in their store, not off cable. AppleTV like services is about as far as they'd go I'm willing to bet.

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The original source article has updated to clarify that Microsoft is saying that all consoles this gen will sell a combined 1 billion units. Which is still absurd, but at least it isn't out-there-crazytown.

 

Maybe they are hoping the XBone generation will last for another three decades and by that time 1 billion will be a tiny percentage of the population.

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I think it's some of each tbh. I think that we've gotten so beaten down in regards to fair use rights that a lot of people don't even regard them as rights any more because it's impossible to defend them in court against corporate pockets. Really, I'm not even terribly upset at Nintendo: What they're doing is stupid and unethical and on shaky legal ground, but if they want to make stupid decisions I'll be happy to watch it bite them in the ass.

 

No, what makes me mad are the apologists who think it's completely okay that corporations steal the meager revenue of buskers just because they provided them the tools to make their content. I don't think people would be okay with it if Adobe or Microsoft started collecting ten percent of their pay, and I'm not clear on what's qualitatively different when it comes to creative works as opposed to technical works. Everything in the modern world is built on top of everything else, and to decide that this is where the line is drawn and to then deprive entertainers of their income on that basis is fucking absurd.

 

Your analysis of Nintendo's legal status as "shaky" is inaccurate, and not supported by the facts (I make no judgment on the wisdom of their approach). First a quick disclaimer: although I work in intellectual property law, I am not an attorney, and although I have some experience with copyrights it is not a specialty. So everything I'm about to say should be considered to be my understanding of copyright law, which is not the opinion of a legal expert, and in no way shape or form should be considered legal advice.

 

A video of someone playing a video game is indeed a unique work, however it is based on a similar work (the video game in question), and therefore it is considered a "derivative work", which is protectable under U.S. copyright law (see 17 USC § 103). Of course it is true that there are some exceptions to what sort of intellectual property is protected by a copyright, namely things that fall under fair use. However I can't imagine any judge would consider a lets play video of passing the 4 tests in considering whether or not fair use applies to it (17 USC § 107). In particular it fails the 1st and 3rd prongs of a fair use test 1. If the complaint is Nintendo is taking away advertising revenue it fails fair use for being a commercial work, something the creator intended to make money from, 3. The derivative work utilizes substantial material of the original work rather than a discrete, limited amount.

 

You also ask how that is different from an Adobe or Microsoft product, which suggests you are confused about what sort of intellectual property copyright law actually protects. Copyright protects creative ideas, which we can define as the unique expression of an idea, but not the idea itself. Example: you can copyright the script of a romantic comedy, which has the same plot as every other romantic comedy, but you can't copyright the plot device boy meets girl, boy loses girl, boy wins girl back. The plot device is simply the idea. The script, and subsequent film is the expression of that idea. Video games fall under the prism of unique expressions of an idea. A product like Excel or Photoshop does not. In the case of Photoshop or Excel there isn't any unique expression being expressed, those programs really are just a tool set. You can say video games are also tool sets for the player to express him or herself, and you are correct in a sense, but they are nonetheless defined by expressive parameters set forth by the game developer.

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I am far from an expert but I will argue this on the facts I do have available, culled from your citations and the wikipedia article on transformative work.

Under the first of the four 107 factors, "the purpose and Page II character of the use, including whether such use is of a commercial nature . . .," the inquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is controversially "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

So that addresses the first of the four. I think it would be very difficult to make a case that Let's Plays are in any way intended to or capable of superseding the original work, and thus I believe are a prime candidate for defense under transformative use.

 

So, that leaves the third, which is indeed very difficult to defend if you assume that the actual gameplay content of a game is of no intrinsic value-- a particularly ironic claim for Nintendo to make, being popularly regarded by their fans as one of the only places left to go for a game that's actually fun to play instead of being cutscene-laden 'cinematic' pandering. You could show a game like Spelunky beginning to end a hundred times over and still not have scratched the surface of what it has to offer, because the content is the gameplay. These are not films. You are not giving the product away by showing it. Nevertheless, yes, that would be the point of contention. I didn't say Nintendo didn't have a case, merely that it was not the obvious open and shut case most people seem to be of the opinion it is. Though, sadly, I do agree with you that no judge would find against them, that says more about my confidence in the courts than anything else.

 

Regarding the last point, I am clear on the difference, but my point is that this is a contrived and nonsensical and arbitrary division and our ready acceptance of it is the product of approximately a century of overreaching IP litigation. The problem is, as time goes on, everything comes to be built upon everything else and someone owns a piece of everything. I perceive a slow erosion of usage rights, which would be alarming and worrisome on its own, but what is driving me crazy is that there are people cheering it on against their own best interests, and in so doing treating people who have done nothing but make a living trying to entertain while having a bit of fun with the most astounding contempt. It plays into a lot of my pre-existing anxieties, so sorry if I get a bit shrill on the subject, but, ugh. It is just emblematic of a whole lot of super gross legal and political shit that is going on right now.

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The content really isn't the gameplay, as far as the owner of the copyright is concerned. A game contains a huge number of assets (art, music, dialogue, etc.) all of which are subject to copyright. Ironically, the actual gameplay is not subject to copyright, but the expression of the gameplay through those copyrighted assets is  copyright. 

 

So accepting that the various assets in the game are subject to copyright, it's pretty easy to see how a let's play interferes with the copyright. Take music. I wrote a song and licensed that song exclusively to Nintendo for their sole use in a game. When you use that song in a lets play, you're interfering with my copyright in the song. I have a right to decide who gets to use that song and how. Unless you license the song for me, you cannot use it in a video. The same is true for the art assets: I designed art for Nintendo to use, and you cannot exploit that art commercially without getting permission first. 

 

As soon as you commercialize someone else's intellectual property--and that does include using someone else's music, art, or game in your own work--you need to seek permission to use that intellectual property. 

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I suppose I've always bristled at what I perceive to be the artificial divide between technical work and artistic work, as one who does both. To me, this seems a lot like stealing the entirety of a musician's revenue because he or she used an unlicensed sample or synthesizer patch. What if you, as a musician working for Nintendo, did exactly that: Extrapolating forth, would the creator of that sample then be entitled to all of the revenue for that game?

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The musician who uses an unlicensed sample doesn't lose the whole of his or her revenue. The copyright holder still has to prove damages. Quantification of damages is pretty complicated and varies from country to country. The aim is to compensate the copyright holder for the loss he or she incurred from the unauthorized use, and/or to force the copyright infringer to give up the profits he or she made from the infringement (but not all the revenues of the work, just those revenues that are attributable to infringement). Many countries also have compensation schemes set out by statute. 

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They were just quick examples, basically what I'm saying is if Microsoft even starts to approach half a billion sales, there are going to be copycats that cut into their market share.

 

If Microsoft hits half a billion in sales in what we consider a "typical" console life cycle (5-8 years, who knows what it will be for the future), they will be a runaway insanity smash success and chortle at the copycats that lag behind them.

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Chortle they may but there's no way they'd reach a billion sales which was my original point.  However as the actual quote was a billion sales for all next gen consoles the entire argument is somewhat moot.

If Microsoft hits half a billion in sales in what we consider a "typical" console life cycle (5-8 years, who knows what it will be for the future), they will be a runaway insanity smash success and chortle at the copycats that lag behind them.

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...what is driving me crazy is that there are people cheering it on against their own best interests, and in so doing treating people who have done nothing but make a living trying to entertain while having a bit of fun with the most astounding contempt.

I am in full agreement with you.

It always saddens and surprises me when I see the way people consider it "fair game" for powerful corporations to go after people. The laws around fair use and other intellectual property issues aren't nearly good enough. They are weighed most heavily in the favor of those who need the least favor.

Maybe I've listened to too much Negativland, but I think every individual should desire a freer creative landscape.

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Jake I have some good news for you.

 

Xbox One maker calls dibs on technique to encourage viewership of shows and ads

 

Xbox One is intended to combine users' gaming and TV watching in a single device, but Microsoft's plan to merge the two goes beyond sticking them in the same plastic casing. Last November, the company applied for a patent on an Xbox 360-like achievements system for watching TV.

 

"Television viewing tends to be a passive experience for a viewer, without many opportunities for the viewer to engage or have interactive experiences with the presented content," the application states. "To increase interactive viewing and encourage a user to watch one or more particular items of video content, awards and achievements may be tied to those items of video content."

 

Two examples given include doling out achievements for watching a single event like the Super Bowl, or for watching an entire series of a single show.

 

"Additionally, by tying the awards and achievements to particular items of video or advertising content, viewers may be encouraged to increase their viewership of the content, thus increasing advertising opportunities," according to the application.

 

Microsoft also envisioned using the Kinect motion-sensing camera in tandem with this system. For example, achievements may be tied to viewers performing specific actions while they watch a show. The system can make sure the user is simply in the room while it plays, or it can tell the user to hold up a specific product. The camera would then scan the item held up and reward the user with an achievement.

 

The patent application details a variety of possible rewards, including points for a GamerScore-like tally that is viewable by other users, new clothes and props for an avatar, virtual money for a game, or even physical rewards.

 

 

Get ready to flip some pickles.

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Jake I have some good news for you.

 

 

 

Get ready to flip some pickles.

 

Holy shit! This is both brilliant and terrifying at the same time. I can just imagine walking by someone's house and seeing a family watching a movie all decked out in Coca Cola paraphernalia posing like the statue of liberty while holding Coca Cola cans as they see "Achievement Unlocked: Brain Raped By Gamification of Advertising". 

 

I have always been irked by a lot of advertising techniques but man, I have to give them credit. They are really reaching a whole new psychological level of mindfucking.

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