Lots of stuff to comment on here, but there is one common thread that people seem to be confusing.
Youtube policy does not equal US law.
This always seems to get missed in threads like this.
That's the creators program. Nintendo was filling claims on people who weren't in the program and taking 100% of the revenue.
Which is Nintendo's right as the IP holder.
Now Nintendo can't issue a DMCA takedown for something that is valid under fair use (such as a critical review), as that would quickly be refuted by a counter-notice and Nintendo isn't stupid enough to try filing suit over a case that it would lose, a YT Content ID claim isn't a DMCA takedown. It isn't even a legal claim. It is a claim under YT policy; a policy that all uploaders using YT have agreed to.
One solution could be to pay royalties if you are using someone's game or IP to make money. Can either be the streamer if they're big enough to be making money or the streaming service like twitch or YouTube
This is the standard for pretty much all forms of IP use. You either get a license or pay royalties if you want to do something that does not fall under fair use. The IP holder is free to deny your use as well.
The only real exception to this under US law is music, which falls under a compulsory licensing scheme. You still have to pay to use it, but the IP holder cannot prevent you from using it so long as you pay up.
I've had people steal my work and it's infuriating, and I've also posted footage from games that's made me money, but I wouldn't be angry if I lost the latter and I was able to takedown the former.
If someone has taken your work and used it without permission in a way that is not fair use, you absolutely have the ability to issue a takedown.* Any host that does business in the US must comply, or be at legal risk.
*NOTE: I'm keeping discussion limited to the US and through all responses here to keep things as simple as possible.
The people showing the game and getting paid for doing so without owing a cent to the people whose blood sweat and tears went into the game is everything thats wrong with youtube when it comes to gaming.
You shouldn't be able to post a lets play without the permission of the creator especially a monetized one, but someone shit the bed in the good sense department and decided copyright laws where youtube is concerned allows screaming like a hooligan over gameplay footage as transforming the experience and free from claims.. taking the power of the creator to advertise and profit off theie own work out of their hands.
Most everyone at this point is so biased and selfish about this topic, what with their favorite youtubers and random situations where its been more of a help than a hindrance, no one wants to agree that okaying lets plays to the degree that we have means a creators creation isn't truly theirs.
Copyright law hasn't changed. Thing is copyright violations are typically left up to the IP holder to police. The criminal justice system doesn't get involved unless a complaint is raised.
On YT, you see a combination of people following the law (fair use, using sources with permission) and people infringing copyright, hoping they don't get caught.
It's not YT's responsibility to police YT for infringement under the law. As the IP holder of "Game X" it is your job. This can be overwhelming for many companies, so some enforce sporadically (similar to how cops issue speeding tickets), while others just throw their hands up in the air.
That doesn't mean the law has changed.
Part of this debate really has to do with Youtube sorting out it's false claim problems (as I stated earlier). In an environment where false claims can be weeded out and real claims can be evaluated for proper 'fair use', we'll see a much more curtailed LP community. In some cases we've seen it in extremes, like when Capcom shut down dozens of Asura's Wrath LP's, but there's a chance it might work better. It's hard to say at this point.
"False claims" under YT are almost all under YT policy/Content ID. False DMCA claims are risky to make as the complainer can be exposed to a countersuit.
Anything done under YT policy doesn't really have anything to do with copyright law.
I really wouldn't mind this. Youtube and Twitch should be providing this without cutting into too much of any side. It would seriously help development and the only hindrance I could see is a focus on tailoring games to be more memetic for views, but some already do that shit anyway.
If YouTube cares about this, they should set up a licensing agreement with the release of new games. The developers should be allowed to choose from a range of licenses from unrestricted (what's happening now), to a portion of the ad revenue, or some kind of scaling payment where they get more from channels with massive amounts of subscribers and less from smaller channels.
Then they should warn LPers before time they expect revenue because that is not the standard practice.
Negotiating licensing agreements can be a very time intensive (and expensive) process. YT and Twitch aren't likely to do so for free.
That said, there is nothing stopping any individual channel from pursing a licensing agreement of its own.
Are people talking over full movies allowed on youtube because I see it as pretty much the same for story based games.
How do people feel about the videos of all cutscenes stitched together from games into a 1-3 hour video, isn't that the same as uploading a whole movie.
It is the same. If it is done with permission, it is OK. If it is done without permission, it is infringement.
But what if you're doing the Jim Sterling thing where you're warning people off a game? Should Digital Homicide receive 50% of revenue for Jim's videos on them?
If it is actual criticism under fair use (and given Sterling's journalism experience, I would assume he is more knowledgeable about fair use than most YTers) then there would be no legal claim whatsoever.
If he just publishes a playthrough video with minimal commentary, then Digital Homicide would be justified in taking it down, regardless of the opinion expressed.
50 percent is an awful baseline.
People aren't watching PewdiePie for the glorious Happy Wheels content. They're watching for him. It's not like people are searching "Happy Wheels videos" and clicking random shit.
For a more accurate analgoy, should the MST3K guys pay the Manos Hands of Fates producers half the profit for that video when the only reason anyone knows that movie exists is because of MST3k?
MST3K licenses stuff so it's not a perfect analogy (though they did it with a lot of public domain stuff too) so something should be considered monetary wise, but nowhere near 50 percent.
Talking in terms of percentages doesn't really work. Some might prefer a licensing fee which is a flat fee. Some might prefer a flat per view fee. Some might perfect a percentage of revenue which could be net or gross.
Without negotiating though, the IP holder more or less holds all the cards.
What a stupid knee jerk comment.
If I take some paints and a canvas that someone else made and create a painting should the paint makers and the canvas makers get a cut of the sale?
Its a lot more than "merely playing a game and talking over it", you have to manage the youtube/twitch channel, there is capturing and video editing, then there is being entertaining while playing a game.
If you wanted to be clever you could turn it back around and say that LP'ers should get a cut of the sales if they are giving them free marketing. (That's not how I feel I'm just showing you how silly your statement is)
Yes and his Skate 3 videos got it back into the sales charts.
Completely agree. I've been watching Lirik play Dark Souls 3 and I would watch him play every single second of it. I am interested in the fiction/bosses but the gameplay does nothing for me and I haven't and never will buy the game and if it wasn't for LP's I'd never be able to experience the content.
The same reason I don't buy certain films, I wait till I can see them free on TV.
Your analogy about paint and a canvas is exceedingly poor.
What would be much better is someone performing a cover version of a song and posting that up on YT. That is still plain copyright infringement, even though they performed it themselves.
As for the bolded, guess what, the TV station is paying licensing fees to show the film. Doing the same with LPs, would have the YT channel paying licensing fees to show footage from the game.
The question is where the value creation lies. The majority of LP generate no revenue whatsoever, regardless of the game in question. PewDiePie, at this point, would make the same amount playing Minecraft as he does playing some "no name" indie game. Can you really argue that that indie game dev has the same right to his revenue, hypothetically speaking, than Mojang/MS? LP as entertainment are clearly transformative, since they transform an interactive experience that is supposed to be played, into a non-interactive one, that is still, for some people, entertaining. This can be through commentary, sketches, editing, whatever. I don't see how a blanket statement, saying all monetized LPs owe money to devs, can be supported.
The obvious counterpoint to that is that if the value in PewDiePie is in PewDiePie and not the games, then there is no need for PewDiePie to play said games.
The problem is a director of a movie is going to sell that movie.
Streamers and LPers don't sell their content. They just get ad revenue and/or donations from fans.
Lirik for example has 30k+ viewers per live stream and then maybe 10k watch the VoD per day which works out at approximately 1m viewers per month. Isn't that kind of exposure worth letting them play the game for nothing?
Hell even a lot of companies approach him to stream their game and even pay him to.
I disagree. People who want to play the game will buy it regardless, people who don't won't. Having a 2 month moratorium does nothing.
Streamers and LPers are most certainly selling their content. It's a business. If they weren't selling, then no one would give a shit when IP holders claimed monetization rights.
The degree of separation from not playing a game, is greater than whatever a director can do with music, in my opinion.
Interaction is the main function of a game.
As long as we're talking about people experiencing a product vicariously, rather than the sheer right of someone to use my stuff in their project (i wouldn't want my music to be used in a Ku Klux Klan promo, as a random example, and not because people get to listen to it "for free").
The "royalty" in any case is paid when the streamer actually buys the game, that's your fee.
Guess what? You can't prevent the Klu Klux Klan from using your music at a rally, so long as they pay the statutory licensing fee.
Purchasing a game does not grant broadcast or performance rights, any more than buying sheet music or buying a script grants broadcast or performance rights.
Every developer should get a slice of the profit made from their game with a Lets Play.
It sickens me that LP fans think developers are greedy to want this.
Every IP holder has the right, under current US law, to prevent others from using their content without permission, with the clear exception being the items that fall under fair use.
The problem, as it were, arises from the fact that although many LPers do clearly infringe without permission, it may not be economically viable for a developer (especially a small one or a foreign one) to pursue a case in US courts.
Even with a judgement, you may end up with someone who doesn't have the funds to pay. This is why many do selective enforcement. As lawyers have been known to say, "Someone without money is effectively judgement proof."
The broadcast rights for a film cost rather more than a single copy of a film does. Is that the solution, introduce broadcast rights for games?
Those rights exist. It's just a matter of negotiating a price. Some game publishers offer them up for free. Some offer take-it-or-leave-it proposals. Some don't want to sell.
It's a question of rights. We as a society have decided that a creator has certain rights. This includes rights to control public performance, reproduction, distribution and the creation of derivative works. I see no reason why LP's are suddenly immune to the same rules and regulations which have allowed and developed the creation of intellectual property. If the CREATOR doesn't want people streaming the game, then that is their right. If you want to do a review, then do a review. Playing a game and speaking over it isn't a review.
LPs aren't immune from the law. It's just that technology has lowered the cost of entry to broadcasting to near zero, so IP holders no longer have a guarantee of getting made whole, even with a judgment in their favor.
I think almost everyone can agree that straight video uploads of interactive story games (aka "walking simulators") isn't a good thing for the industry.
But the challenge is in actually regulating it... What legislation do you pass? How is it enforced? What are the consequences? etc.
No one cares if I upload Let's Plays of CS:GO, Overwatch, Smash Bros, League of Legends, etc. In fact, many of these companies actively encourage it.
Current laws cover it. Enforcement if up to the IP holder. Consequences can be very large monetary judgements.
The problem with the MST3K comparison is that games STILL aren't movies, no matter how linear, so you can't provide only the commentary track and have it sync up to the game like you can with movies. They're similar in concept but you can't make them identical in execution.
Music and scripts have the same issues. They are never identical in execution, yet you can't perform them publicly without permission.
Not every derivative work is automatically a transformative work.
Most LPs are derivative works, which means they can only be done (legally) with the permission of the IP holder.
Try streaming The Force Awakens when it comes out on your average YouTube channel, and see what happens. So cannot the same comparison be made with licensed games?
This is actually a poor example, if only because Lucasfilm has generally chosen NOT to enforce copyright when it comes to fan works. It has enforced it for pure originals (which is why you won't find direct rips of Star Wars films on YT), but not for re-edits or original work. The only thing Lucasfilm hasn't tolerated in the past is people making money off such derivative works.
This is akin to a game developer who gives permission to stream a game, so long as it is not monetized.
That doesn't mean that the law is getting ignored. It just means that a particular copyright holder is choosing to allow, rather than prohibit, a specific activity. The IP holder has the ultimate say.
and a lot with people with short sighted IP protectionist attitudes. Another 80 years for copyright? Yes please! Arguing on the basis of existing copyright laws is just another fallacy where people shouldn't be accepting the status quo. It can easily be argued that such LPs are transformative works and a separate thing from the games themselves.
Not really. The vast majority of LPs are clearly derivative works.
Making a transformative work is a high bar. Plenty of YTers throw that term around, but don't really have any idea of what it means.
And even if a work is transformative, that doesn't automatically mean it passes the fair use test.
