"Ethics and Journalistic Integrity"

[syntheticgerbil]

The law hasn't remarked on Let's Plays, which are probably fair use exceptions or original performances, and using copyright law as an example of something that makes sense and is worth paying attention to is pretty reaching.

People use fair use all the time when explaining away their selling of fan art prints and ultimately they have no point to make. That's not how fair use works. Finally some comic cons are banning the selling of copyrighted characters in the artists alleys (or just bootleg shirt sellers) and Deviant Art does not allow you to sell prints of the same either. You could argue people only like those derivative works because they are coming for the artist's style but that's not supported by copyright law and in many cases it makes artists of the IPs unhappy.

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

All of this supports a review or critical analysis (like Jim Sterling's videos) and none of it supports a long play that makes money.

DMCA takedowns also rarely actually have anything to do with law. A form letter gets sent to YouTube and they take unilateral action.

Digital Millenium COPYRIGHT Act.

 

I get it, we are all steeped fan culture now, but I don't think that should be at the expense of any creator or copyright holder. The law supports that, the shared ad revenue is a concession.

[Mangela Lansbury]

Yes, but the YouTube DMCA takedown process is largely divorced from the law. There are no real checks in place to make sure that it's not being abused, or even used properly. This is why you see so many ridiculous takedowns -- YouTube gets a notice from a company, and they automatically comply. There are no courts and no real law involved. Just fancy corporate procedures masquerading as law to offset risk of actually violating the DMCA.

Edit: Also, Fair Use is not a checklist. Those criteria are a useful guideline, but there are cases that don't fit any of the points and cases that fit all of the points. There are a lot of ways to argue that Let's Plays are legal though, so that's beside the point.

[syntheticgerbil]

I would think that's because Youtube is offering a platform for all these people to make money and a lot of it out there is violating copyright law, which is why they equip content ID and such so they can avoid actual lawsuits over hosting copyrighted content. Whether Youtube is correctly taking down things or not or the robots are doing a bad job doesn't really divorce the intent of the system from copyright law in the first place.

 

Everything was so much easier in the days when people just uploaded their speed runs to archive.org for fun and not profit.

[syntheticgerbil]

Okay I'm gonna type my final thing on this issue. I've heard all of these arguments and I've thought long and hard on all of this stuff many times over the past few years and my mind is simply not going to change here.

 

I'm going to back up and just frame it the case of me licensing royalty free music for any animation I do for commercial or whatever, for profit basically. I look up the songs on the sites where they are being sold or the creator themselves and I see what the cost is for the royalty free song (or sound effect even, some people sell foley sound effects). You pay the musician based on what the extent of the license is going for, who is going to view it, how many viewers your work is expected to have, where it'll be shown, etc. If you expand the license, it is your duty to pay more. It's all sliding scale and can result in lawsuits if not properly paid for. Plus it's just a matter of respect.

 

Once you have purchased the music you are free to alter it and make it fit the piece with a sound editor, maybe even slowing it down or speeding it up, thus creating some derivative. Often these tracks will come in zip files with split up portions for you to easily do so.

 

No one is necessarily coming to any commercial or promo video for the music, but it is there as part of the content. The final work lives with someone else's work and they should be paid accordingly. What amount they want to charge or whether or not they allow it for free with the caveat of a credit is up to them and is their right. If they want to charge a ton of money they are free to do so, although people might not buy the music that way. Although usually the stuff that goes for like $1000s is pretty awesome music and probably gets licensed to larger media companies quite often.

 

To me, this is exactly how creating a Let's Play works. It's still using someone else's work and they should get paid, especially if there are certain people making a ton of cash, hence why licensing royalty free music is charged on a sliding scale.

And what sucks is I'm sure musicians get fucked all the time on this stuff as well because there are a lot of people out there who don't respect the system and you can easily find sites that give you the same music for free because some asshole bought it and shared it with everyone.

[Problem Machine]

Man I super want to get into the original intent of copyright and western society's counterproductive and neurotic ownership culture and the fact that every human work ever is built to some degree on the work of others, but that would derail this even more than it's already derailed. Maybe someone should make a topic or something, but I don't think it will be me. I believe almost all of the arguments forwarded thus far are premised on a system and culture that is at this point deeply broken, and are to some degree unresolvable on that basis.

[syntheticgerbil]

Yeah I'm not even gonna being to agree with you on any of that, so no point if your objective here is to convince me of something else.

 

P.S. I don't see how any of this is a derailment considering this whole Ethics in Game Journalist heavily involves certain toxic Youtube celebrities who only have a mouthpiece in the first place because of ethically questionable content creation.

[Problem Machine]

I... no, my point was to say that it was too complex an issue to really do justice to here without massively derailing the thread. I didn't even really state any arguments, just what they might be about. I'm sorry you didn't find my, um, summary, convincing.

[SuperBiasedMan]

There's actually a thread called Stealing on this exact topic, I think in the game development sub forum? Clyde was interested in the ethics of appropriating other people's photos/work without permission.

[Problem Machine]

Oh interesting, I'd seen that thread but hadn't considered it in context of Let's Plays

[Zeusthecat]

For what it's worth, I think I'm convinced by syntheticgerbil's argument that it is totally fair for developers/publishers/whatever to take a "royalty" cut from Youtuber's that create content based on their games. Songwriters receive royalties whenever their song is played on the radio. So it stands to reason that a Youtube personality that creates content based on another person's work should also pay a royalty to the original creator whenever someone views their video. Sure, they inject their personality and everything but the video game they are playing is a core part of their production and they would have nothing without it. Seems pretty straightforward and fair to me.

 

Honestly, I haven't given this much thought until now and tended to take the side of the Youtube personalities. But after giving it some thought, is it really that unfair for a Youtube personality to have to pay a royalty to broadcast someone else's content to the internet?

[Bjorn]

Mystery Science Theater 3K had to license every movie they used (except for the ones that were in the public domain).  I don't see a significant difference between MST3K and YouTubers. 

[Zeusthecat]

Mystery Science Theater 3K had to license every movie they used (except for the ones that were in the public domain).  I don't see a significant difference between MST3K and YouTubers. 

 

That's case closed in my mind. It really isn't at all an unreasonable thing to expect.

[Bjorn]

That said, I also agree with Problem Machine that copyright is a completely broken and unreasonable mess in many ways that doesn't just need an overhaul, but likely needs rebuilt from the ground up.  But as things stand, I think that creators getting a share of revenue or a licensing fee from YouTubers is a reasonable stance. 

[Twig]

To clarify my earlier posts: I have no moral objection to video game devs in general getting a bit of the revenue.

 

My problem is that, as Problem_Machine has mentioned, it's often just Big Guy vs Little Guy. Nintendo vs Some Random YouTuber. If the shared revenue was going to, say, the developer of To the Moon, or whatever else, that's awesome. But Nintendo doesn't need that fucking money. They're filthy rich! And, worse, they aren't even the reason people watch. People watch to enjoy the personalities. This is how this business works.

 

So, essentially, it's not Nintendo saying "Hey, you stole content"; it's Nintendo saying "Hey, you are entertaining people and happen to be using our product along the way, give us money, or else".

 

That's gross.

[itsamoose]

I might be alone here, but I've always seen Youtubers as kind of the talk show hosts of the video game world.  Also related to the DMCA copyright claims on youtube, as I understand it any claim made initially will take the video down, but then at some point a human will review the claim and decide whether or not the claim is valid.  Now I'm sure by whether or not the claim is valid is really just Google determining if they can get sued for it, but it doesn't seem like the draconian mess people tend to make it out to be.

[Twig]

I might be alone here, but I've always seen Youtubers as kind of the talk show hosts of the video game world.

I was actually thinking this, too, but didn't bring it up, as the comparison is sorta hard to do. Talk show hosts don't talk over a whole movie if they're gonna talk about it.

 

(Which brings me to another aside: even if a YouTuber plays through a whole game and posts it all up, that's still SIGNIFICANTLY different from actually playing it yourself, even for a story-based game. They're not analogous to movies, so I don't think the MST3k comparison is all that valid, either.)

[Gaizokubanou]

Yeah movie comparisons are off in that regard, but syntheticgerbil's music comparison stands very well.

 

Say group of popular musicians took off and their works are basically nothing but remixing other people songs (I don't mean to entertain the thought that perhaps every piece of modern music is just remix of collective human musical achievements... I mean these guys will use the source material, etc. leaving no doubt as to where the original song came from) without any license.  And they are using it for profit.  With big record companies I'm sure we are all going to lose any bit of sympathy since they are busy fucking over others, but otherwise that would be pretty detestable.

 

The music comparison stings a lot every time I think about it, because it's like... a game is, for the most part, collection of variety of mediums ranging from picture, animation, and of course, music... so by combing them with gameplay, they all suddenly deserve less protection according to the popular opinion (legally individual pieces still stand so people worry about games with licensed music) because...???

 

But on the flip side, I would also hate to see rigid protection laws + big license holders locking down creative ventures... this is where I probably differ from syntheticgerbil in that I think many unlicensed fanarts should be monetizable(sp? is this even a word?) because they are so different from licensed products and hence ultimately adding to the society by producing works of value that would otherwise never have existed... so long as small (I want to emphasize small here, but probably scalable) part of the profit is returned to the license holder to perhaps prevent abuse (imagine how gross it would be if Disney did this and just fucked over every smaller writers by making movies based on popular books and claim "lol fanart that would otherwise not exist").  Ultimately like problemmachine, I and Twig mentioned before, something that has to be scalable based on the strength of the parties involved because one law cannot fairly cover both extremes.

 

I would have liked to see devs getting say, 5 ~ 25% cut from videos based solely on their work WITHOUT being called out by LPers and the common opinion as being 'greedy'.  But the current ad revenue model where this would have made sense is collapsing rapidly, so without ad revenue, not sure how this new landscape should look.

[itsamoose]

Anytime game developers ask for more money they get called greedy, I think it just goes with the territory.  To build up on that point Gaizokubanou made, what is the real difference between selling fan art and the works that produce them?  Aren't these just two different parties doing the exact same thing?  When you say fanart should be monetizable, what is the difference between a drawing of the Hulk purchased at Comic Con booth vs. a drawing of him in a comic book?  Why should a fan be able to use and monetize images of marvel's characters but some other comic book label shouldn't?  Correct me if I'm wrong, but I don't think the concept of fair use covers things being sold for profit, and the only reason it works on youtube is because they are paid via ad revenue indiscriminate of the product.

[Mangela Lansbury]

Correct me if I'm wrong, but I don't think the concept of fair use covers things being sold for profit, and the only reason it works on youtube is because they are paid via ad revenue indiscriminate of the product.

That is a myth, but it's understandable that you think that because copyright is really fucking confusing.

There's a good amount of commercial fair use cases, and they boil down to transformation and cultural contribution -- mainly, has the appropriated work been transformed enough in its use for the resulting work to be considered an original cultural contribution? If the resulting product is distinct enough in this highly specific but highly ephemeral way, the use is fair.

But I actually think the best thing to model Let's Play licensing on is the play distribution model (you license a set of rules and create an original performance), so what do I know

[Gaizokubanou]

Anytime game developers ask for more money they get called greedy, I think it just goes with the territory.  To build up on that point Gaizokubanou made, what is the real difference between selling fan art and the works that produce them?  Aren't these just two different parties doing the exact same thing?  When you say fanart should be monetizable, what is the difference between a drawing of the Hulk purchased at Comic Con booth vs. a drawing of him in a comic book?  Why should a fan be able to use and monetize images of marvel's characters but some other comic book label shouldn't?  Correct me if I'm wrong, but I don't think the concept of fair use covers things being sold for profit, and the only reason it works on youtube is because they are paid via ad revenue indiscriminate of the product.

 

When dealing with entities like Disney I think the distinction is really hard to ethically justify because the license passed hands multiple times and is now being held by an entity that is clearly not even a human (person by law but not an actual person).

 

But when dealing with smaller original works distinction is clear.

 

Or like I did, flip the situation.  Say you make an original story and Disney creates 'fanart' of it for profit without including you.

 

The more I think about this topic, so much of it really depends on the parties involved :x

 

That is a myth, but it's understandable that you think that because copyright is really fucking confusing.

There's a good amount of commercial fair use cases, and they boil down to transformation and cultural contribution -- mainly, has the appropriated work been transformed enough in its use for the resulting work to be considered an original cultural contribution? If the resulting product is distinct enough in this highly specific but highly ephemeral way, the use is fair.

But I actually think the best thing to model Let's Play licensing on is the play distribution model (you license a set of rules and create an original performance), so what do I know

 

Like deadpan mentioned earlier, I think this is extremely divergent within the games medium.  There are something like board games or minecraft where the play distribution model makes perfect sense.  Then there are extremely story/setpiece driven games where bulk of the performance is carried out by the video game itself.

 

I think almost all multiplayer sessions can also safely fit into play distribution model pretty safely...

[itsamoose]

So given the current understanding of ownership of digital goods, basically you own a license to use a thing as opposed to owning that thing, does anyone know if Let's Plays and the like are covered by those multi-page user agreements that I totally read every time?

[Zeusthecat]

So given the current understanding of ownership of digital goods, basically you own a license to use a thing as opposed to owning that thing, does anyone know if Let's Plays and the like are covered by those multi-page user agreements that I totally read every time?

 

I'm not sure I understand the question but are you basically asking if someone would be totally fine to make a Let's Play of a Let's Play and profit off of it without having to pay royalties/license fees to the original Let's Player?

 

That's probably not what you're asking but it would be interesting to see how Youtuber's would react if someone did a Youtube video of their Youtube video with commentary over it. Would they try to demand a cut of the profits?

[Mangela Lansbury]

Sometimes. It depends on the company and the game. FFXIV has a Materials Usage License that originally didn't allow for monetizing on YouTube, but was amended to allow it. Activision has a standard User Generated Content provision in its license agreements, which is just bullshit legal stuff that grants them a lot of rights and you not very many. The example below is from a PS4 license agreement, so the "content sharing features" include streaming and video capture.

 

USER GENERATED CONTENT

 

The Product may include message boards, content sharing features, and other means by which you and other users may share content that users create (“UGC”).  To the fullest extent permitted by applicable law, by submitting any UGC (including without limitation, images, videos, customer service submissions, idea submissions, suggestions and message postings) you automatically grant (or represent and warrant that the owner of such rights has expressly granted) Activision a perpetual, worldwide, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, sub-license, create derivative works from and distribute such UGC or incorporate such UGC content into any form, medium, or technology now known or later developed throughout the universe, and agree that Activision shall be entitled to unrestricted use of the UGC for any purpose whatsoever, commercial or otherwise, without compensation, notice or attribution.  You waive and agree not to assert against Activision or any oF its partners, affiliates, subsidiaries, or licensees, any moral or similar rights you may have in any of your UGC. If you are validly using the Product from outside the United States or the United Kingdom then Activision may be required to request that you enter into a separate license agreement permitting Activision to use the UGC for certain promotional, administrative, or other purposes.

 

To the extent the Product permits other users to access and use your UGC, you also grant all other users of the Product the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your UGC on or through the Product without further notice, attribution or compensation to you.

 

You represent and warrant that any UGC you provide (a) does not and will not violate any third party intellectual property rights and/or any other person's rights, including without limitation any so-called "moral rights"; and ( when used as contemplated herein does not and will not require the payment of any royalty or any consideration to a third party. You may not upload or post any UGC that infringes the copyright, trademark, or other intellectual property rights of a third party, nor may you upload any UGC that violates any third party's right of privacy or right of publicity, or may require the payment of a royalty or other consideration to a third party. Each user is responsible for any UGC he or she places on or through the Product, including the transmission, posting, or other provision of text, files, links, software, photographs, video, sound, music, or other information or material. You may only upload your own UGC to the Product; do not upload anyone else’s UGC.  As set forth in Section 15 below, you agree to indemnify Activision for any losses related to or arising out of UGC you submit.

 

Activision has no obligation to monitor, approve, verify, or prescreen any UGC that you or other users may contribute to or through the Product. Activision reserves the right (but has no obligation) to remove, block, edit, move, or disable UGC for any reason in Activision’s sole discretion. To the maximum extent permitted by applicable law, Activision does not assume any responsibility or liability for your UGC or that of other users, or for any failure to monitor, edit, or remove UGC. You agree that you shall not hold Activision liable for any loss or damage arising from the contents of any UGC (yours or another user’s), including without limitation in respect of any defamation, harassment, or false endorsement claims.

 

You agree not to do any of the following actions while using the Product:

 

• Harass, threaten, embarrass or cause distress or discomfort upon another  participant, user, or other individual or entity;
• Transmit any UGC that Activision considers to be disruptive, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, or racially, sexually, ethnically or otherwise objectionable;
• Impersonate any person or entity, including but not limited to Activision; 
• Disrupt normal Product functionality, or otherwise act in a manner that negatively affects other participants and/or the overall Product experience;
• Post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation;
• Intentionally or unintentionally violate any applicable law, regulation or treaty while using or accessing the Product;
• Post multiple posts of the same content (i.e., “spam”); or
• Invade the privacy or violate or infringe any right of any person or entity, including, without limitation, any intellectual property right.

 

Activision does not endorse, or guarantee the accuracy, efficacy or veracity of, any UGC.

 

Activision used to have a boilerplate UGC policy in the legal section of their web site, but I can't find it now. I guess that's what they've got instead.

 

EDIT:

 

 

I'm not sure I understand the question but are you basically asking if someone would be totally fine to make a Let's Play of a Let's Play and profit off of it without having to pay royalties/license fees to the original Let's Player?

 

That's probably not what you're asking but it would be interesting to see how Youtuber's would react if someone did a Youtube video of their Youtube video with commentary over it. Would they try to demand a cut of the profits?

 

From above:

To the extent the Product permits other users to access and use your UGC, you also grant all other users of the Product the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your UGC on or through the Product without further notice, attribution or compensation to you.

 

¯\_(ツ)_/¯

[Gaizokubanou]

it would be interesting to see how Youtuber's would react if someone did a Youtube video of their Youtube video with commentary over it. Would they try to demand a cut of the profits?

 

Problem with that theoretical is that it is so far from realm of probability because big LPers and streamers are celebrities where the main profit comes from their charisma.

 

What I mean is, whatever answer they might give, it is so meaningless because they know they are very much protected from such situation actually causing them noticeable harm.

 

...

 

Actually you know what, I just recalled some of them getting very upset when their videos were used by others as point of reference for the game in question WITHOUT the video being cited back to them.  I mean I think they deserve citation but the response went so far as to "you need my permission!!!" so I guess that's our answer for some.

[Problem Machine]

I would have liked to see devs getting say, 5 ~ 25% cut from videos based solely on their work WITHOUT being called out by LPers and the common opinion as being 'greedy'.

 

Anytime game developers ask for more money they get called greedy, I think it just goes with the territory.

Part of this is that, as I mentioned before, available evidence seems to suggest that these videos being out there increase sales, and thus there is already a profit motive for developers, so asking for a cut on top of that is double-dipping. Part of what complicates the issue is that the awareness boosting effect of these videos is likely diminished for something like Nintendo properties, where awareness is already high, but Nintendo also doesn't need the money from youtube views.

 

That's probably not what you're asking but it would be interesting to see how Youtuber's would react if someone did a Youtube video of their Youtube video with commentary over it. Would they try to demand a cut of the profits?

Depends a lot on the Youtuber I imagine. Northernlion has explicitly said before that he'd be fine with it, though I doubt I'd be able to find the video since I think it was in one of like a million Isaac videos. Others seem to be ludicrously protective, like the dipshits who came after Errant Signal for using a bit of gameplay footage to illustrate a point.