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JonCole

"Ethics and Journalistic Integrity"

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Cool dudes, my mind totally changed when you took the route of biting at me personally!

 

You're right, I shouldn't have gone there and I'm sorry. I shouldn't have taken what you said personally, but I kind of did. I still don't exactly see though how you can say this:

 

I find it obnoxious that somehow what I'm saying should be tied to my attempts to have a career, and then be discounted on it.

 

and still feel completely comfortable taking all these potshots at a field of work that is directly connected to the kind of work I do and is frequently mischaracterized the same way as the work that I do. I just really don't appreciate the sudden turnaround of "Well, speaking as somebody who is affected by this" because myself and others are too.

 

According to you and deadpan, assets in gameplay is considered to be transformed enough to be a new work of art

 

Put them all together and ADD gameplay and bam, no protection???

 

I think so many LPs and streams would fail the test because so many of them don't sufficiently transform the actual base assets. 

 

It's safe to say I didn't entirely follow your hypotheticals, but I think these statements show a misunderstanding that can maybe be cleared up. I don't know about Problem Machine obviously (although I think we're in agreement on this), but I'm not arguing that streamers deserve protection because they transform the game itself and therefore can lay claim to it, I'm saying that they own their playthroughs, because these were authored by them, even if developers set up the boundaries within they could operate.

 

That doesn't overwrite the protection of the assets the developer created, it just sets up a context in which that protection is temporarily suspended, since enforcing it would conflict with the streamers' ownership of their creation. I'm arguing that most kinds of streaming are a form of fair use, and the concept of fair use doesn't contradict, threaten or invalidate copyright and intellectual ownership. It just protects certain permissions within those sets of rules. The rules themselves and the public acknowledgement of authorship aren't endangered by this.

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You know what, clearly we are just going to step all over each other's toes for absolutely no benefit to either of us so whatever, I'll agree to disagree on what counts as sufficiently trans-formative work to void copyright in both legal and ethical sense.

It's hard because I can tell we're talking past each other but I can't tell how. The place you're arguing from just isn't quite clicking into place for me, and I can tell that because of that I'm not really addressing the questions you're trying to ask. For my own part, it feels like my arguments are being construed as a defense or apology for LPing -- understandable given that that was largely why I entered the conversation, but at the moment I'm more just trying to understand what exactly is being advocated here. I just don't really understand what you're saying, and I think we both find that frustrating. Are we talking about the law or ethics? Are we discussing them as they are or as they should be? Are we talking about the obligations of the streamer or the obligations of the dev or the rights of the streamer or the rights of the dev? I can't tell.

 

So let me try to set out my stance, rather than leaving it open to inference. I believe that artists have a moral right to their creation, but should have very limited rights to control how that creation is interpreted and used. I think creators should have almost no power to shut down original fan-works outside of trademark disputes and interference with the original moral right to their creation, IE these works promote confusion as to what was made by whom. I think that the bar for transformative use should legally be set very low, but that artists should be good citizens and give credit where credit is due. When it comes to LPs the source games are obviously credited so that's not really an issue, but comes up all the time in other stuff.

 

Adding money to everything makes things a lot more complicated, since capitalism is pretty inherently unjust. A lot of our understanding of who a real artist is and isn't is grounded in capitalistic assumptions that work to further the interests of corporate entities rather than artists, and especially rather than art itself, which is enriched by more and more creations. Because there is no real ethical participation in capitalism, I have no idea what the right way to handle money as it pertains to LPs is, except that the system as it is seems to be a mutually beneficial arrangement for both parties as long as neither gets greedy and tries to double-dip.

 

So the rhetoric I've been using basically splits into two lines: The line which corresponds to the first paragraph, discussing the moral rights of creators and limitations thereof, and why I believe in a generally open economy of ideas: And the rhetoric of balancing equitable trade between two abstract business partners, and why attempting to disrupt that is in no one's best interest and tends to stem from inherently anti-artistic capitalistic assumptions and impulses.

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While you guys have discussed all this I've made $13.85 selling derivative illegal garbage fan art!

I'm a filthy rich criminal!

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I honestly don't understand what Nintendo is trying to accomplish with that. Even if it's within their legal rights to do it (which it seems like it is although I'm sure that up for debate)aren't they basically pissing off a bunch of their fans for little perceivable benefit?

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This is especially bizarre to me after their release of mario-maker encouraged streaming content.  It seemed like they were starting to get it.  I guess not.

 

That said, it is highly questionable about whether it is within their rights legally to DMCA this content.  What's more important, is that it is allowable within the Youtube policies.  If, for example, Nintendo tried this with twitch, I suspect they would find a lot more resistance from the platform.

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That said, it is highly questionable about whether it is within their rights legally to DMCA this content. What's more important, is that it is allowable within the Youtube policies. If, for example, Nintendo tried this with twitch, I suspect they would find a lot more resistance from the platform.

I haven't read through Nintendo's software licenses, but if they're predominantly going after tool-assisted runs, that would count as a modification of their software, and modifying their software is probably against their license agreement. As long as the decision is within the 5th Circuit's jurisdiction, they are basically guaranteed that it's within their legal rights.

Otherwise, they could argue that the Let's Play is an unlicensed non-transformative public performance of licensed work, and again, as long as they argued within the 5th Circuit's jurisdiction, they are basically guaranteed that it's within their legal rights.

Copyright law is hugely fucked up in America. I can't imagine a situation where a company like Nintendo would go to court outside the 5th Circuit, and corporations are essentially guaranteed wins in that circuit.

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At this point, I think it is mostly speculation because these cases haven't really been adjudicated.  I think everyone is afraid of losing and in the case of game companies, they should probably be afraid of winning too.  It's likely that New Media probably do more good for game companies than harm.

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I have some less than flattering thoughts on this regarding Nintendo's intentions, but to be honest I can't quite decide what they hope to get out of the Creator's Program requirement.  Do they want to control their content?  While I get the desire here, I don't see what having this control gains them.  Is it just about the money?  From what I understand youtube pays out something like $25 USD for every 1k views, so the juice just doesn't seem worth the squeeze here.  I get the sense that Nintendo is probably the only company that could get away with something like this as the occupy a pretty unique space in games, but I don't see what all this effort gets them besides animosity and less coverage of their games.  I feel like there is a major piece of the story that Nintendo just isn't sharing with the rest of us that makes this all make sense.

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It's also hard to say, but Japan has a slightly different attitude towards streaming and media culture, based on a more expansive idea of what constitutes someone else's content. I don't know what YouTube does over there, but Niconico is very big on encouraging users (including corporations) to post only the content that they expressly produce and own, with a certain latitude for highly transformative works like remixes and mashups, and this conception of content is most often enforced through silent takedowns promoting conformity. Really, I don't even know if there's a cultural and economic framework for fully recognizing the power of streaming and Let's Plays.

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There is and there isn't. As I understand from my (fairly rural) Japanese friends, PC gaming culture isn't big in Japan, but among it streaming is accepted. Outside of PC gamers, streaming isn't generally understood, outside of being a thing that "other people" might like.

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...anything to do with gamergate? No? :)
 

I haven't read through Nintendo's software licenses, but if they're predominantly going after tool-assisted runs, that would count as a modification of their software, and modifying their software is probably against their license agreement. As long as the decision is within the 5th Circuit's jurisdiction, they are basically guaranteed that it's within their legal rights.

Otherwise, they could argue that the Let's Play is an unlicensed non-transformative public performance of licensed work, and again, as long as they argued within the 5th Circuit's jurisdiction, they are basically guaranteed that it's within their legal rights.

Copyright law is hugely fucked up in America. I can't imagine a situation where a company like Nintendo would go to court outside the 5th Circuit, and corporations are essentially guaranteed wins in that circuit.

 

 

This has probably never been a question of 'legal rights'. Nintendo could probably wipe youtube clean of their game footage right now and it would all be completely legal. At least I've been told that e.g.

if they really wanted to.

 

The problem is that video game culture has decided that this kind of game use is fair, and Nintendo committing crimes against these unofficially rewritten laws hurts their reputation more than they obviously imagine. 

 

Nintendo's on its way down, down, down. I haven't had anything to do with Nintendo these last decades, but well of course I bought a GameBoy in 1989 and played the shit out of NES action adventure classics like Faxanadu and Battle of Olympus. So what they're doing now... it really does hurt. :mellow:

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It's also hard to say, but Japan has a slightly different attitude towards streaming and media culture, based on a more expansive idea of what constitutes someone else's content. I don't know what YouTube does over there, but Niconico is very big on encouraging users (including corporations) to post only the content that they expressly produce and own, with a certain latitude for highly transformative works like remixes and mashups, and this conception of content is most often enforced through silent takedowns promoting conformity. Really, I don't even know if there's a cultural and economic framework for fully recognizing the power of streaming and Let's Plays.

 

And yet, there are huge comic conventions in which people sell comics and fan art full of other people's work. Some in fairly high distribution numbers. I don't understand Japan's view on copyright, but then I don't understand the US's view on it either so *shrug*

 

To be fair to Nintendo, they announced this weird YouTube revenue sharing thing a while ago, and it's not going to gain any traction if they keep letting people have Nintendo content up for free. I would think this guy could have seen it coming?

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What that dude was posting was inherently illegal already, he was using a rom hack, plus the argument over the last 6 pages of derivative content. It's still within their rights, especially if they feel this competes with Mario Maker. As amusing as any of this stuff is, why does this fan culture fail to understand what they are doing is always in risk of the copyright holder's whims? It's like when people who make fan video games get upset that the owner cancelled it.

 

And yet, there are huge comic conventions in which people sell comics and fan art full of other people's work. Some in fairly high distribution numbers. I don't understand Japan's view on copyright, but then I don't understand the US's view on it either so *shrug*

It's finally being cracked on in the recent years, but sadly it's only because of pressure from big corporations, not from individual copyright holders who continue to get screwed. Since the artists alleys aren't going away, it's a good thing because then you get to see people trying hard to put some original work on display.

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Legality is not synonymous with morality.

 

People know it's within Nintendo's rights. But that doesn't make it inherently not shitty of Nintendo when it does happen.

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Morality can be pretty subjective though. And since a ton of people out there seem to not understand fair use, I'd say a lot of people don't know it's in their right, hence some of this entitlement.

 

The Kotaku article on the matter is much better because the commenters there have a much clearer idea. Someone brought up that the reasoning here is most likely that Nintendo does not want people to mix up what you can and can't do in Mario Maker with a rom hack. Whether you want to give weight to everyone's smarts to distinguish the difference or read the description is up to you, but I'd guess Nintendo erred on the side of most being ignorant.

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I can't get over this apparent disregard for anyone who creates something based on an IP which isn't 100% original (none are but whatever). Out of curiosity, do you share this same level of disdain for, say, the creators of the Sherlock television series, or people hired by DC to write Batman comics? Or is it only people working in an 'unlicensed' fashion that are lesser artists?

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The laws wouldn't exist without someone decided they should exist in the first place, and "should" is inherently subjective, as well.

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Out of curiosity, do you share this same level of disdain for, say, the creators of the Sherlock television series, or people hired by DC to write Batman comics? Or is it only people working in an 'unlicensed' fashion that are lesser artists?

No and no. Sherlock is public domain, as I stated before, ownership needs to run its course and I'm against bloated corps like Disney licensing and reselling IPs until the end of time. Perfect demonstration of how it should work is Little Nemo. Winsor McCay makes good money in his time, owns his IP, and dies before the 75 years are up. Now anyone can compete against each other to reprint these amazing old works in best quality and also IDW has started up a new line of Nemo stories. No one is competing against Winsor McCay and the IP is more than dead otherwise.

 

I'm not going to argue for the logic to extension to 120 years for corporations or 75 plus life of creator because I have issues with it, but Steve Gaynor wrote something interesting about it last year in reference to licensing music from a record label.

 

It's kind of besides the point because I see exactly why Nintendo would crack down on stuff they feel is competing with their recent release.

 

And last, I'm not even sure why you would think I have something against anyone hired by DC to make Batman stuff. That's how business works. Wha?

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I can't get over this apparent disregard for anyone who creates something based on an IP which isn't 100% original (none are but whatever). Out of curiosity, do you share this same level of disdain for, say, the creators of the Sherlock television series, or people hired by DC to write Batman comics? Or is it only people working in an 'unlicensed' fashion that are lesser artists?

 

I assume he means just the latter, because he's working on a licensed Star Trek poster himself.

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