91 replies to this topic

[Beefster]

Then perhaps we're all misunderstanding each other?  My whole argument is just built around the "something for nothing" saying.
 
If Youtube never existed, the only way you'd be able to see anything from a game,, that's not in any commercials or trailers, is if you bought the game yourself, and played the game yourself.  No game, no content, no information, save for what's in the commercials, trailers and maybe word of mouth.

Or if you watch a friend...

EDIT2: It would be a terrible thing for us all to revert to the nineties... where we spread stupid rumors about features that don't exist in games. That's what things would be like without YouTube. That is not moving forward and will inevitably lead to a revolt of sorts.
 
Watching video games will never be the same as playing them. I am far more likely to play/buy a game if I watch someone play it and it looks fun.
 
If it isn't on YouTube, these things will just find a backdoor somewhere else. You can't prevent piracy... and really there's no good reason to aggressively combat it- for the consequences of fighting it have historically been negative. DRM only serves to hurt the experience of legitimate users, C&D's alienate hardworking fans, shutting down videos kills your marketing, etc...
Honestly it's pride and greed that drives these kinds of things. Either way, it's shortsighted and terrible marketing. No matter how big you are, fans are more important than money in the long run, so you should always embrace everything fans do to promote your material- even piracy to some extent. Pirates aren't going to buy your work anyway, so nothing really is lost from them.
 
Copyright simply does not work in this day and age and it needs to be reformed.

EDIT: Also, this:

I'd also like to stress that a lot of these shenanigans only exist because youtube enables it. (Since they don't want to deal with anything.) Quite much of this content would also fall under fair use, which they would not be entitled any form of compensation in the first place. I'm well aware that fair use can only be proven in court, but with youtubes system, fair use is completely out of the picture, furthermore, they take steps further than what the law requires in regards to DMCA.

Note the bolded.

Nintendo is overstepping their legal bounds. They do not own our gameplay experiences.

Edited by Beefster, 02 February 2015 - 01:12 AM.

[Fabbrizio]

I'm trying to get you guys to understand how Nintendo could be looking at this whole thing.  Yeah the whole grand scheme of things shows that LPers can help bring in sales, but what about the legality of it all?

Yes? What about the legality?

Even if the law were on Nintendo's side (and under fair use, it isn't), the law isn't infallible. If something is illegal that shouldn't be, we change the law. Laws exist to protect people. A law prohibiting a victimless crime is a waste of everyone's time and money.

It doesn't matter how Nintendo looks at things. Nintendo's made lots of terrible decisions in their day. This will likely prove to be one of them. Bad PR is more detrimental than whatever revenue is hypothetically lost to LPers (still have yet to see the hard evidence, but assuming hypothetically that someone at Nintendo keeps a book of this).

Edited by Fabbrizio, 02 February 2015 - 01:34 AM.

[Koh]

I like this post from Spriter's Resource, and am sharing it here.

 

 

 

Post by Gwen

With anything else, you either have to share profits, or pay for the rights to use material. Don't see why this should be any different. It doesn't matter that it's peanuts for Nintendo. Quite frankly it's their product that's being used to make money and they should be compensated. They're fully within their rights to shut these people down but instead they want to at least try working together. If I were an LP'er I'd be extremely grateful they're fine with me making any profits off of their content.
Also I don't get why we're lumping Game Journalism in with this. Most respectable places that review stuff get press kits, and aren't showing off the entire game. They may show a few clips but most of what they have to say is their opinion on the game itself.

EDIT: To answer that last point Helmo, if Nintendo wanted to I'm sure they could ask for this place to pay a fee for rights to use all of that. As it stands, most people use it for fan projects which aren't based around making money.What's greedy is that people think they should get to keep all of the profits off of using somebody else's product.

 

 

 

 

 

I think calling it a royalty fee is actually quite perfect, because that's what is needed here.  If you're going to use someone else's content to make money in whatever fashion, you should have to pay royalties.  I wish I had thought about it from that angle before, because now it makes even more sense.

Edited by Koh, 02 February 2015 - 06:42 AM.

[Eddard McHorn Van-Schnuder]

I like this post from Spriter's Resource, and am sharing it here.

 

 

 

 

 

 

I think calling it a royalty fee is actually quite perfect, because that's what is needed here.  If you're going to use someone else's content to make money in whatever fashion, you should have to pay royalties.  I wish I had thought about it from that angle before, because now it makes even more sense.

The thing is though, if a lot of these videos also work as free advertisement, why should Nintendo get paid on top of that? And how do you single out the videos that don't work as advertisements, how do you figure out what should give you royalties and what should not? You can't, really, not without creating issues like they are doing right here, where they are taking a much, much larger cut than they should even be allowed to, on top of the fact that they don't put any work into the creation of these videos.

 

If Nintendo helped out, if they paid for equipment, community management and other various costs that comes with being a 'professional' YouTuber, then sure then they could start talking about deserving a cut. The fact of the matter remains though: they don't do any of that stuff, yet they want to be paid for it. That doesn't make any sense. Sure, they made the game, but as we've gone through, a video of a game is not the same as pirating a movie, you can't really compare the two mediums this way. You also can't say things like 'Nintendo owns 40% of this video because gameplay is included in it', because like we've also gone through, there's a lot more that goes into creating these videos than just recording gameplay and hitting the upload button. That's not to say people don't also do that, but those people don't really earn much, if anything at all to begin with. We're not talking about those people here, we are talking about people who do this for a living. Nintendo is ensuring that they can't do this for a living, at least if they want to work with Nintendo products.

 

Let me put it this way, if you want to compare this to movies: if Michael Bay makes a new movie and there's a bunch of Mercedes vehicles in the movie, you know he didn't pay Mercedes to use those cars in his movie, but Mercedes most likely paid to have them in the movie. This analogy somewhat works in this context as well, because the video game footage is the car in this scenario. While it is true that there is 'more' of it in most videos of games, than there is footage of the cars in a movie, that doesn't automatically means that Nintendo somehow owns part of the video, because again, there's a lot more to making these videos than just hitting the record button. If you're recording Nintendo games to begin with it is likely that you've also had to pay up for a screen recorder of some kind, as Nintendo does in no way try to help you capture footage of their games. 

 

If Youtubers were charging you to see their videos, I would have a completely different stance on this. They are not though. They earn ad revenue, just like TV shows do. Conan doesn't have to pay Nintendo whenever he brings a new game on, it's an advertisement. Youtube videos are comparable to this, really. It's like I said, Youtube is taking the place of the TV, and Nintendo have not been able to evolve with it as quickly as other companies have. Other publishers have reacted like Nintendo did initially as well, but they now allow these videos because they see the potential benefits of doing so. Ask yourself this Koh: If EA, Activision and Ubisoft all think that they have no claim to the money Youtubers make off of their videos, what gives Nintendo the idea that they are so special? We're talking about the three most greedy, terrible video game publishers we have, and none of them are taking this money. In this case I really feel that what Nintendo is doing is unjustifiable.

[Koh]

Your Mercedes example doesn't work, because if the company that owns them paid to have them featured in a movie, they're PAYING to get advertised, and thus also giving the movie producers the rights to make use of their product.  These let's play videos, on the other hand, aren't given explicit permission to be recorded and uploaded, and definitely do not have any rights with regard to the game content.  Whatever voice overs, comments, or video editing they create is certainly theirs, but whatever content is from the game isn't.

 

Also, this first portion really concerns me.

The thing is though, if a lot of these videos also work as free advertisement, why should Nintendo get paid on top of that? And how do you single out the videos that don't work as advertisements, how do you figure out what should give you royalties and what should not? You can't, really, not without creating issues like they are doing right here, where they are taking a much, much larger cut than they should even be allowed to, on top of the fact that they don't put any work into the creation of these videos.

Are you saying that just because someone is advertising a product freely by showing all of its contents, which goes against distribution rights by the way, gives them a get out of jail free card when it comes to royalties?  The use of copyrighted music, graphics, sound, and everything else is just totally safe under the premise they're given publicity?

Edited by Koh, 02 February 2015 - 12:06 PM.

[MarinaraSauce]

I believe this has already been said in some manner, but let's say I record a real life comedy video using a Canon camera.  I post it to Youtube and monetize it and make a metric shit-ton of money.  Would it be fair if Canon demanded that they received a share of my profits?  After all, if it weren't for their product, the video would have almost no substance.  Do you see what I'm saying?

[Eddard McHorn Van-Schnuder]

The thing is, right now you can't say that it's the same as stealing. If anything, the law needs to be updated to work with all the new mediums we've got today. But fact of the matter remains: making these videos is not illegal. It just isn't. What Nintendo is doing isn't protecting their IP, or going by what the law says, they're actively trying to create a precedent. I'm sure they'd want this to be illegal, because then they wouldn't have to actively work against it, but it all becomes pointless when you realize that no one is losing anything here, if everyone is just left to their own devices. It's like Fabbrizio put it, there's no victim here with the existence of these videos. It's not even a victim-less crime, because it technically isn't a crime.

 

So it's a thing that doesn't cost Nintendo any money, that as far as the numbers say right now could only potentially benefit them. So why would they want to stop it? What's the reason? Where is the motive here? It's like I said, they see the quick and easy money, but they're blind to the potential benefits of what Youtubers could have to offer.

 

In the long run I do agree though that right now, it's like the wild west. Things will probably change, though I doubt companies, at least in general are going to require royalty fees to be paid to them for the use of gameplay. Maybe there's a way to go about this whole business that you and I haven't realized yet, but that doesn't change the fact that what Nintendo is doing is counter productive to everybody's cause. Even their own. That's why this is an issue. Another thing to keep in mind is that a lot of these Youtubers are working almost journalistic kinds of jobs, so if they are to continue what they're doing right now it's essential that their viewers trust them. If they have to make some sort of contract with Nintendo just to be able to use their footage, a contract that already gives you a bunch of rules and specifically states that they can 'arbitrarily' (their wording, seriously) change whenever they want, without explaining why. So in theory Nintendo could make a deal with say TotalBiscuit, so that he can make first impression videos of Nintendo games. Now he's in a contract with them. But because their contract says they can change it at any time, they could suddenly say that he can no longer say negative stuff about their games. That would hurt his integrity, and a lot of his viewers would jump ship if they knew he had such a deal with Nintendo. At least they require you to disclose the deal in the video itself, either verbally or visually, but who knows, they could change that as well. Meaning they would turn these youtubers into advertisement machines that work for Nintendo, but at the same time giving their revenue to them. The big problem here is that the deal they offer doesn't go both ways, it doesn't show good faith and it leaves a horrible taste in my mouth.

 

And this is on top of what I've said before, about how you can't prove that a video view equals a lost sale. And yes, you have to think about it like that, because if there are no sales lost, then no one is losing anything here. This is when you ask yourself if you still think Nintendo is entitled to money on top of that. It is essentially 'free' money. They didn't put in the work for it, they didn't financially back the Youtuber who could have spent hundreds upon hundreds of bucks on equipment and a bunch of other stuff. Running a successful Youtube channel isn't something you can really do from your mom's basement without investing anything into it. It costs both sweat and money, it's hard work and it's real work. Nintendo is not entitled to a single cent that TotalBiscuit earns off of his videos, and while I agree that stuff like straight up walkthroughs become questionable grey zones, the second you put commentary on top it becomes a new, different product. Like I said, people don't watch Pewdiepie for the game, they watch him for Pewdiepie. Selling video games isn't what he does, but it has been proven that his videos can drive sales still, so the only thing Nintendo has to lose here is potential customers, and a great opportunity to expand their online community of fans. If Nintendo instead embraced this, and tried to work with them instead of against the Youtubers... well, you probably know where I'm going with this. It could only be beneficial. So why not do it? Why cling to this idea that 'hey it might be illegal' when right now it clearly is not illegal.

[Koh]

Actually it is illegal if you look at the last line of my previous post:  "The use of copyrighted music, graphics, sound, and everything else is just totally safe under the premise they're given publicity?"

 

For example, Zelda music.  Nintendo hired whatever composer to compose the music for the game.  Only that game has the legal right to make use of the music.  Unless another company gets distribution or commercial rights, like Apple for iTunes for example, it is illegal to put that music in any other product.  In this case, these let's play videos.  The music is quite plainly playing in the background while whoever talks over it.  Just because they're talking doesn't mean it isn't there.  This is why things like Content ID matches and Viacom Takedowns happen.  

 

"So what if they play the game on mute and talk over it?"

 

The graphics will then be an issue.  The graphics are only given permission to use for that game, not your video.  

 

"Okay, so no video or sound, how about that?"

 

This is where the original content that is created by the Let's Player comes in.  Their commentaries, their jokes, their webcam, etc.

Edited by Koh, 02 February 2015 - 12:39 PM.

[Fabbrizio]

There's also the change of form to account for. When music or video is used in another work, it is always the same form. It is equivalent. But video games, being an interactive medium, are not retaining their form when placed in a video. The interactive element is a very significant majority of the experience of the game, as well as a significant majority of the developer's efforts. When that element is removed, it is not the same work.

I cite this hypothetical scenario: should Bicycle get royalties if you film a game of chess on a Bicycle brand chess set? Is it stealing to produce such videos?

Edited by Fabbrizio, 02 February 2015 - 12:45 PM.

[Eddard McHorn Van-Schnuder]

Koh, you saying a line in a specific way doesn't make something illegal. What I mean when I say that it's not illegal, is that there are no laws that states that recording gameplay from games is to be considered the same as stealing. You can of course personally see it that way, but that doesn't make it illegal.

 

If you can point to a case where a company like Nintendo wins a case like this in court, thus setting a precedent, then I'll let you have this one, but I don't think you'll be able to do that. As far as I'm aware, there are no laws that concern this. Does that mean that the law is perfect? No, but it doesn't automatically means that it's the same as stealing.

[Koh]

Well this isn't a case, but reading this and the responses posted might serve as my answer to that.

 

 

I cite this hypothetical scenario: should Bicycle get royalties if you film a game of chess on a Bicycle brand chess set? Is it stealing to produce such videos?

This scenario doesn't work, because the brand here doesn't matter.  Chess pieces are like tools.  A means to an end.  It'd be like if someone recorded a set of wrenches just sitting on a table, there is no distribution, as you haven't cloned the chess pieces and gave them away for free.  The music, sound and graphics in a gameplay recording, however, are subject to copyright and distribution laws, where you need a license to legally make use of them.

Edited by Koh, 02 February 2015 - 12:52 PM.

[Fabbrizio]

This scenario doesn't work, because the brand here doesn't matter.  Chess pieces are like tools.  A means to an end.  It'd be like if someone recorded a set of wrenches just sitting on a table, there is no distribution, as you haven't cloned the chess pieces and gave them away for free.  The music, sound and graphics in a gameplay recording, however, are subject to copyright and distribution laws, where you need a license to legally make use of them.

Except you aren't giving the video game away for free when you make a video of it! They are not equivalent! A video of a game is not a game, a video of a chessboard is not a chessboard, a video of a slice of cheese is not a slice of cheese!

If the concern is the resources - the art, the music - then these royalties, if hypothetically we were to pay them - should be going to the artists and musicians, not to Nintendo. Nintendo didn't make the music. Koji Kondo, Masato Nakamura, Nobuo Uematsu - individuals - sat down at their respective worktables and created the music. If they were asking for the royalties, or if there were any assurance that they were getting a fair cut, I think many people would be more compliant. But we have no assurance, and all things considered, we shouldn't take it as read that they will.

Even if Nintendo did have a case (they still don't, legally, and this fact has been largely ignored for several pages), the ethics don't favor them.

Edited by Fabbrizio, 02 February 2015 - 01:30 PM.

[Koh]

I'm pretty sure I don't need to cite all the cases of Viacom taking down a video that utlizes some resource of theirs, such as music without permission. That's their legal right to do so. It's the same for assets in a video game, and has, and continues to happen daily. "This video has been removed due to copyright violations."

The artists and composers under Nintendo may have signed a contract that states whatever assets they produce for the product will add Nintendo as a company as a co-owner. We don't know, and if royalties were a thing like they should be with this, we'd have no idea who'd ultimately receive the money. With this said, though, Viacom certainly didn't produce whatever music that was removed from a video, but they probably had the ownership rights to have it removed. Otherwise, they couldn't have.

[Eddard McHorn Van-Schnuder]

Koh, I can sort of agree when it comes to things like straight up complete walkthroughs, though you have to understand that the legalities of this is not something that we actually have a precedent to go by with. There is no law that says you can't do this. There are many issues with finding a middle ground when it comes to this, I mean, take for one that you can't prove in any serious manner that people are watching walkthrough videos to say, hear the music, rather than buying the soundtrack or the game. Sure, we can all imagine that some people might do that, it's possible, but there's no actual reason to think that it's a widespread issue, and that it's costing anyone anything. So the laws certainly need to be rewritten, or in many cases made to begin with, surrounding the whole issue of copyrighted material and video content on Youtube, but I don't think this extreme of an action really fits when compared to the issue of losing money that right now no one can prove actually exists.

 

A lot of people have intros to their videos these days, say if you use the Zelda theme in your intro. I believe you need to have the rights to use the track in that context, but I don't think Nintendo should automatically get a share of all the ad revenue the video will ever make. Music playing in the background of gameplay commentary is more of a grey area, especially so when in most games these days, music is actually licensed through other companies, meaning that it's not just the publisher of the game that owns the right to the music being played. And like I mentioned earlier, on top of that you can't actually prove that anyone watches those videos as a makeshift way of pirating music, so it becomes even harder to figure out with that in mind. But regardless of how weird of an issue this is, fact remains that right now it's not illegal, and what Nintendo is doing, while not illegal either, is still taking much more than they should, and they're approaching it in a way that makes it very greedy, and it makes them look full of themselves for thinking that they are somehow better than every other game publisher out there who seems to be taking a much, much more lenient route. The thing is, those other companies has been much more successful at everything they do compared to Nintendo, at least if you look at it from a money rules all point of view. Which is what companies that want to stay profitable has to do. What makes Nintendo think that those other guys with all their success has got it so wrong?

 

It's short-sighted. It's bad for business. It's too much. If they were so sure of their cause they should just take people to court and see if they were right. I don't think they'd win. Again though, my point here is that there's no reason for anyone of us to pretend like this is illegal or something, because right now it is not. The topic of the future of copyright is a very interesting one though.

 

Edit:

 

I think what Rockstar did with Grand Theft Auto was pretty interesting. Xbox One and PS4 both include the feature to capture footage at any time, so it's clear that these companies realize that online

video content is the future of entertainment, and they are willing to give people the tools they need to earn money off of their content without actually paying them royalties. Rockstar however, use a lot of real world music in Grand Theft Auto, music they own the right to use in their game, but people capturing footage of their game does not. So they simply have it so that the radio stations are muted in the footage you get out of it, though the in-game soundtrack that was written for the game that will play whenever the radio stations are turned off will remain regardless of if you're capturing footage or not. They're okay with this. Rockstar knows people will earn money off of videos of their game, Sony and Microsoft have even made a feature that helps people do this, Nintendo on the other hand are going in the complete opposite direction. This example isn't meant to prove anything, but it's something to keep in mind.

Edited by Robin, 02 February 2015 - 02:10 PM.

[Koh]

I'm also thinking discussing what modificafions, amendments or deletionz to current copyright laws aould be an interesting topic. Care to do the honors?

I think we had a good discussion about this specific topic here, though. I can see where you guys are coming from, and I can also see where any game company or other company that does this is coming from.