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Old 05-20-2013, 01:49 PM   #1
Talon87
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$$$ made from YouTube videos with Nintendo content now goes exclusively to Nintendo

Ben Kuchera and Andrew Groen report.

I first heard about this a few days ago when rummaging over the most recent comments in an Angry Video Game Nerd I put on play before I went to bed. Most of the comments were unrelated to this news, but one or two people made jeering comments towards James Rolfe indicating that he'd no longer be making any money from his videos. I figured that either they didn't know what they were talking about or else this would become big news and I'd hear about it again later.

It became big news and I heard about it again later.

So what do you think? Should people be allowed to upload Let's Plays of video games to the Internet or does that infringe on the video game companies' copyrights? And if you think uploads should be allowed, do you think that the LPers should be allowed to make money off of those videos? Or do you think that any money made off of them ought to be going to the video game companies instead?

Personally, I've always been pleasantly surprised by Let's Play videos' existence. On the one hand, I believe that, under the current law, they run a tad bit afoul of it and do threaten companies with the potential loss of revenue from people who content themselves to watch a Let's Play rather than going out and buying that game and playing it for themselves. I know many people who have done this, mostly for games that are on video game consoles they don't own and can't emulate or choose not to. I know several people whose "playthrough" of Pokémon Black & White was through YouTube videos; most of these individuals do not own Nintendo DSes. I know that I myself watched someone's professional playthrough of Shenmue 2 on YouTube because I don't own a working XBox -- mine died in the Summer of 2007 -- and this was certainly the faster, easier, and cheaper option. But on the other hand, I am very glad that Let's Plays are (apparently? *shrug*) protected under Fair Use laws. And I'm not entirely convinced by the lost revenue arguments either. For one thing, plenty of people enjoy watching comical or theatrical Let's Plays, like the Angry Video Game Nerd's or like GameCenter CX, but would never in a million years willingly go out and drop $5+ on some of the shitty NES-era titles that they play. For another thing, many games that show up in Let's Plays are no longer produced by the companies which made them, meaning that any sales on the market today are either resales or are supremely delayed first sales; but in either case, these don't equate to lost sales revenue for the original companies either. In both cases, Nintendo (and other video game companies) already made their money when they sold the game to Wal-Mart or to Target or to Best Buy or to whomever. It's those companies which are left holding the short end of the stick if a game sits on store shelves, unopened, for years on end before it's bought by a retro gamer and taken home. And finally, even for those games which are still being printed in factories and which are still being sold on the market, I don't buy that someone who doesn't own the console period and chose to watch a Let's Play is 100% guaranteed lost revenue. If you take away Let's Plays for XBox 360 and PS3 games, I'm not going to go out and buy a console. I'm just going to go without any Let's Play videos that I might've otherwise watched.

I also wouldn't place a video series like AVGN or GCCX in the same boat as typical Let's Plays. AVGN videos aren't really "Let's Plays". They're more like highly-entertaining video reviews with full scripts, cinematography, and other special effects. In fact, in some AVGN videos, I dare say that footage of the actual video game is on screen less than 50% of the time. This includes some of his most popular videos, like his R.O.B. the Robot review. So even if the law does end up coming down hard against the LPers and supports Nintendo's authority to deny LPers any right to make money off of Let's Plays, I don't believe that the same thing should happen to AVGN. And if it does? I definitely think that he should write in to the proper authorities -- courts, companies, you name it -- and point out the obvious double standard in that Nintendo happily permits Fuji TV to produce GCCX (and for their staff to make an income from doing so!) yet targets James and other parody-reviewers who are using Nintendo footage under fair use law and are not simply playing the game, unedited and unscripted, for people on the Internet who are too poor or too stingy to go out and buy the game for themselves.
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Old 05-20-2013, 02:05 PM   #2
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The link doesn't work.

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Old 05-20-2013, 02:20 PM   #3
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I consider a Let's Play original content, because the focus is not simply the game, but the commentary/insight of the player. It's not as obvious as AVGN reviews, but is along the same lines. Moreover from an economic standpoint, one has to assume that the Let's Play audience are people who would otherwise play the game, but prefer the Let's Play instead. I would not describe most gamers as having that kind of demand curve.

I dunno if I've brought it up before, but I felt Wikia and Wikipedia are the next target for anti-copyright lunatic fringe assuming they successfully take down primary source piracy. If you look at the articles on, say, the Naruto Wikia, episodes and character biographies are so comprehensive (with supplemental images) you don't have to watch the anime anymore to get the story. This is particularly danging for manga, because mangas are less reliant on visual imagery than anime, so one effectively is turning a manga into a light novel script through a Wikia chapter article.

I'm the founder of the Muv-Luv wikia so I've gotten some emails inviting me to conferences to discuss such things, although I haven't participated. I originally came up with the idea on my own so I'm not surprised Wikia administration is concerned as well.
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Old 05-20-2013, 02:20 PM   #4
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Notably, the pokemon series games, being under ownership of The Pokemon Company and Game Freak, are exempt from this act of dickery.
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Old 05-20-2013, 02:26 PM   #5
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Quote:
Originally Posted by Doppleganger View Post
I consider a Let's Play original content, because the focus is not simply the game, but the commentary/insight of the player. It's not as obvious as AVGN reviews, but is along the same lines. Moreover from an economic standpoint, one has to assume that the Let's Play audience are people who would otherwise play the game, but prefer the Let's Play instead. I would not describe most gamers as having that kind of demand curve.

I dunno if I've brought it up before, but I felt Wikia and Wikipedia are the next target for anti-copyright lunatic fringe assuming they successfully take down primary source piracy. If you look at the articles on, say, the Naruto Wikia, episodes and character biographies are so comprehensive (with supplemental images) you don't have to watch the anime anymore to get the story. This is particularly danging for manga, because mangas are less reliant on visual imagery than anime, so one effectively is turning a manga into a light novel script through a Wikia chapter article.

I'm the founder of the Muv-Luv wikia so I've gotten some emails inviting me to conferences to discuss such things, although I haven't participated. I originally came up with the idea on my own so I'm not surprised Wikia administration is concerned as well.
A very interesting point on Wikipedia, plot synopses, and copyright, but I worry it'll veer us too far off course if we pursue it in this thread. Perhaps in another thread? Misc, Entertainment, Debate, wherever. It's certainly an interesting topic. Perhaps there's even some foreshadowing of this in the ink-and-paper encyclopedias of the 1990s and before, considering that none of them would ever give you a comprehensive plot synopsis of a film like Gone With the Wind or Casablanca even if they did have entries for those films.
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Old 05-20-2013, 04:33 PM   #6
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While I understand Nintendo's thinking, they are 100% wrong in this situation. People will just stop making Let's play videos for Nintendo products all together. So unless Nintendo themselves start to produce them they'll lose a substantial source of much needed free promotion. For a company that is struggling as much as Nintendo, they need all the free advertising they can get. People don't read about games in magazines anymore to decide if they want to buy them. If I want to learn about a game, I go to you tube and watch a Lets play or review to decide whether I want to spend the cash to purchase that game.

Another thing to ponder is what a slippery slope this decision can create. The base is Nintendo thinks they own those games because it's their intellectual property. The Problem is that they DO NOT own those games. Someone has paid for them and should be free to do with them what they want. It'd be like getting sued by George R.R. Martin for reading A Storm of Swords out loud. In fact this is worse than a book because unlike a book, the user directly changes and effects what happens in the game. Nintendo isn't the one who is playing the game, or taking the time to record it or review it, yet somehow think they're owed. This paints a potentially grim future of having pretty much every game be pay to play. "Buy this new Mario Title! Only $59.99 and then $10 monthly to continue playing our intellectual property! Also read and sign this 10 page terms and agreements about what and what not you're allowed to do with said Mario Title. Buy now!"

Just my opinion I guess, but I can honestly say that I've probably purchased a dozen or so games because I enjoyed what I saw in a Let's play on You tube. Nintendo is shooting itself in the foot.
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Old 05-20-2013, 04:43 PM   #7
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This is sort of like the situation with Torrents, but a slightly less illegal way. Also comic scans.

There was a novel author who found out most of his market were people who first torrented one of his novels. Eventually he convinced his publishers to allow his first novel of a series to be available as a free download. Soon he actually had increased sales from countries known for torrent after releasing the torrent. I think he has a youtube video discussing this fact. I should go look for it. Should...

Comics scans do roughly the same. People will sample a comic by downloading their scans, then choose to buy if it's good. While they might lose some sales here and there, they generally gain them back in the long run. Comic scanning groups even place their 'signature' to identify who scanned it. Sure it's not their name and address, but they could easily be shut down if Marvel/DC/Image/comic industry wanted them hunted down and stopped.
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Old 05-20-2013, 04:51 PM   #8
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Youtubes own rules say ya can't make money offa game footage without permission from the games owners... so all those people that were doing it anyway got zero right ta complain ~_~

The fact that Nintendo can/will add ads to videos the uploader chose not to monetinize in the first place is the part that stinks if they do indeed do so.
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Old 05-20-2013, 05:01 PM   #9
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If Lindsay's right and it's part of YouTube's terms of agreement then it's a completely non-issue, they can't get paid for what they put up.

I know I myself was asked into the revenue sharing program for some videos I uploaded but I didn't want to get FBI'd (nor do I really care about making anything from said videos).
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Old 05-20-2013, 05:03 PM   #10
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Fair use says otherwise.
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Old 05-20-2013, 05:31 PM   #11
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Quote:
Originally Posted by Trepie View Post
While I understand Nintendo's thinking, they are 100% wrong in this situation. People will just stop making Let's play videos for Nintendo products all together. So unless Nintendo themselves start to produce them they'll lose a substantial source of much needed free promotion. For a company that is struggling as much as Nintendo, they need all the free advertising they can get.
Unless you're an advertising agency that has a contract with Nintendo why should ya get paid for "advertising" their games? You're a glorified fanbot shill nothing more O.o Nevermind that most lp videos that at least I've seen rarely have anyone saying stuff like "oh yeah and go buy this game guys!"

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If Lindsay's right and it's part of YouTube's terms of agreement then it's a completely non-issue, they can't get paid for what they put up.
Its just what I've read elsewhere but this screenie seems pretty cut & dry!

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Fair use says otherwise.
Is that fair use being thrown around as a magic bu-bu-but! catchall ala free speech until reality comes crashing down o.o? They're going against the terms of the site they're making money off of how "fair" is that?
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Old 05-20-2013, 05:53 PM   #12
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You realize that with Let's Plays, Nintendo doesn't have to contract an advertising company. They would end up saving MILLIONS each year to not have to make content that is freely being made by fans who show their enthusiasm and love of Nintendo. Now they're going to have to pay people to act happy about Nintendo products?

Sure. The pennies made from Youtube will somehow make up for the millions lost. Okay.

Arguing about Fair Use is better saved for a debate thread.
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Old 05-20-2013, 06:18 PM   #13
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You realize that with Let's Plays, Nintendo doesn't have to contract an advertising company. They would end up saving MILLIONS each year to not have to make content that is freely being made by fans who show their enthusiasm and love of Nintendo.
If its truly for the love of the product the lper oughta have no qualms with not getting paid for it! Remember how alot of fansites need ad/donations just to stay up not even to make money? Same thing! That's doing it for the love of whatever you're covering!

Heck these youtubers have it easy. Youtube is free to use! The lpers have no hosting fees to cover! I think we'll really learn here who's doing these things as a love letter to their fave games and who's in it for the moneys no matter the size of the sums involved >.> After all the important thing here the *videos* are still up an running. They're not being pulled by Nintendo. I mean the videos are what matters right? Not egos and cash... right?

Aside from which whys just Nintendo the only one getting piled on? Google went to them and assumedly other game publishers with this offer on the table. Others likely have and will follow the money~
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Old 05-20-2013, 07:18 PM   #14
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There was a novel author who found out most of his market were people who first torrented one of his novels. Eventually he convinced his publishers to allow his first novel of a series to be available as a free download. Soon he actually had increased sales from countries known for torrent after releasing the torrent. I think he has a youtube video discussing this fact. I should go look for it. Should...
Couldn't find it no matter how hard I searched for it on Google or YouTube. But was pretty sure it was Neil Gaiman, and came back to search for it on UPN, figuring I would've discussed it here with you guys:
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Neil Gaiman on Internet piracy

A friend shared this with me earlier today.
Score.
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Old 05-20-2013, 07:38 PM   #15
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Here's the biggest thing that makes this issue different from all other copyright disputes and content usage on YouTube: there's a huge difference between watching someone play the game or review the game and actually playing the game yourself.

Personally, I'm someone who goes out and watches a Let's Play of a game, enjoys it, decides "hmmmm maybe I should play this myself!" and goes to buy it. I'm sure so many others do the same. Just watching a game is not the same experience as actually playing it. Movies or TV shows, on the other hand, have only their value in the visual element, but the interactive element of video games is a very important distinguishing factor. Whereas publishing of the footage of a movie or show on YouTube detracts from a potential sale since the whole experience (save for quality, perhaps) is delivered, footage of a video game is not even half of the experience.

Nintendo's decision is a poor one in my opinion and they're going to likely find a decrease in sales from this. It's sorta sad that their marketing and sales team is too blind to the shift in the copyright climate that they don't realize this.
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Old 05-20-2013, 08:36 PM   #16
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Personally, I'm someone who goes out and watches a Let's Play of a game, enjoys it, decides "hmmmm maybe I should play this myself!" and goes to buy it.
Thats super ironic in the case of games the lper is playing but doesn't actually own or has in no way tried to prove they purchased! Nevermind that as I mentioned before the amount of lpers that say in their videos to go out and buy the game are few & far between! Not calling everyone a pirate, far from it. But every time I see a state save/load message... I can't help but wonder.

Quote:
Whereas publishing of the footage of a movie or show on YouTube detracts from a potential sale since the whole experience (save for quality, perhaps) is delivered, footage of a video game is not even half of the experience.
What if the footage of the game is of poor quality? Messed up resolution, improper framerates, lag, and poor audio/video encoding on top of it! That's totally how publishers who put out nothing but bullshots want their game to be seen am I right? For every person putting effort into high quality A/V with no lag theres hundreds of others recording from a freaking camcorder pointed at their tv screen x.x Remember that backlash against the Aliens marketing versus the real thing? Well this is the other end of the spectrum! There's stuff they don't want you to see which could cost them money! Advertising not really supposed ta have the opposite effect!

Putting aside technical qualities, the competency of the person playing matters very much imo. If a person is below my pretty weak skill level they should be practicing before recording and only putting out their best stuff! If they wanna showoff a game they like they should be doing it right by showing off how good/cool the game can be. Skill-less lps can drive interest in purchases away by giving the game a poor showing! But we all know putting effort in would kill off all those blind lps and day 1 lps!

Quote:
Nintendo's decision is a poor one in my opinion and they're going to likely find a decrease in sales from this. It's sorta sad that their marketing and sales team is too blind to the shift in the copyright climate that they don't realize this.
- Nintendo did not put out a ban on lps of their games.
- Nintendo did not have google wipe all non-official/non-partnered instances of videos of their games from youtube.
- People can continue uploading as many Nintendo game lp videos as they have been doing all along.

What'd Nintendo (and others that we don't yet know about) do wrong here? The only people potentially stopping this free "advertising" now are the lpers themselves. They can keep on trucking cause they really do enjoy the games and/or attention or stop and throw a hissy fit over money they weren't supposed ta be making in the first place.
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Old 05-20-2013, 08:45 PM   #17
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I am under the impression that this is well within Nintendo's rights, and that this is way better than trying to take down all Let's Play videos.

It seems to me that if you are doing a Let's Play it should be for the love of the game, or making fun of it, and not for profit. Nintendo is basically just charging a licensing fee on Let's Play now, so that everybody does it for the sake of the game, not for money.

And I have a completely opposite feeling towards Let's Plays: when I watch one, I don't buy the game afterwards. I've already seen the story, the unique gameplay mechanics, heard the music, and seen the graphics. That's good enough for me. In my case, Let's Plays definitely dissuade me from making a purchase.

Is it a dick move towards the fandom? Kinda? Depends on how many people were getting paid by Youtube for these Let's Plays anyways. There's also the issue, of course, that Nintendo's work is being used without permission by their fans all the time. Commentary is a very small contribution to what is essentially a full walkthrough of a game.
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Old 05-20-2013, 08:45 PM   #18
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It decreases incentive to put out Nintendo LPs. Is it a bad move by Nintendo? Probably. Is it something that bunches panties? Not as much as it has.
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Old 05-20-2013, 11:33 PM   #19
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Nothing wrong with Let's Play videos, but I don't think people should rely on them as income. If people want to upload game footage, they should do it because they like the game, not because they think they'll get rich off of it.

This won't kill Let's Play videos. It'll only cut out the insincere ones.
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Old 05-21-2013, 12:25 AM   #20
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I think this is probably most Let's Players reasoning for switching to the more indie games, or switching to Microsoft/Steam/PS3. Personally, I think it's not exactly a smart move on Nintendo's part; but the LPers will eventually learn to cope. (As most of them already have.)
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Old 05-21-2013, 01:02 AM   #21
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Fair use says otherwise.
One can't claim fair use if one enters into a contract agreement with YouTube that prohibits them from using material that would fall under it.
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Old 05-21-2013, 02:03 AM   #22
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Of course it fits. When does Nintendo's product stop being their intellectual property and my physical property? Can I display it on my shelf? Can I play their games around people who didn't buy it? Can I let friends borrow the game? Or would all that be an illegal distribution of their intellectual property?

And when does MY commentary, MY guide, MY opinions, or MY experiences stop being MINE and start becoming Nintendo's intellectual property?

Does UPNetwork belong to Gamefreaks? Its built entirely around Pokemon. We have Anime Battling and Roleplaying games based off of Pokemon. We use their imagery in our icons, artwork, and writings. Do all our work mean nothing because it was originally their intellectual property?

Youtube has whole sections of their Terms of Agreement which defines Fair Use and all forms of commentary, LPs, and reviews all fit into it. Nintendo coming down on Youtube is exceedingly stupid and unfair. Does Giant Bomb have to send them all their ad money for their review of MarioKart? Does IGN have to send them all their revenue made from people using their Smash Brothers Brawl guide? Does GameFAQs send them a fat check because they revealed all the secret upgrades in Metroid?
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Old 05-21-2013, 02:51 AM   #23
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Of course it fits. When does Nintendo's product stop being their intellectual property and my physical property?
When it doesn't fall under a copyright or trademark.

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Originally Posted by Raptor Jesus View Post
And when does MY commentary, MY guide, MY opinions, or MY experiences stop being MINE and start becoming Nintendo's intellectual property?
American Idol is a good example of this. It's Fox's show, but if someone isn't paid a royalty for a song sung by a contestant, that is grounds to sue Fox for an IP violation. The contention is they used another person's IP without due compensation, so the song presentation doesn't belong to Fox until they've paid for it.

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Does UPNetwork belong to Gamefreaks? Its built entirely around Pokemon. We have Anime Battling and Roleplaying games based off of Pokemon. We use their imagery in our icons, artwork, and writings. Do all our work mean nothing because it was originally their intellectual property?
We're not making money off of Pokemon nor do we have a contract with vb that says use of any copyrighted material is grounds for immediate termination. If you didn't know, ProBoards has this kind of termination clause. A while ago a forum called "Beast's Lair" was flagged for Japanese translations of the Fate/hollow ataraxia visual novel and was ordered to remove anything that could subjectively be perceived as a copyright violation in two days. Despite a massive pruning, the board was terminated and ten years of posts were lost to the annals of time.

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Youtube has whole sections of their Terms of Agreement which defines Fair Use and all forms of commentary, LPs, and reviews all fit into it. Nintendo coming down on Youtube is exceedingly stupid and unfair. Does Giant Bomb have to send them all their ad money for their review of MarioKart? Does IGN have to send them all their revenue made from people using their Smash Brothers Brawl guide? Does GameFAQs send them a fat check because they revealed all the secret upgrades in Metroid?
Truth be told there is some concern on the Wikia side of things over spoilers, being that spoiling someone damages the value of some IP given how much is invested in surprise and experience. My brain's a bit fried at the moment so I don't remember where I was going for this, but from a strictly legal point of view, if YouTube has fair use definitions built into its terms of service and use of Nintendo IP does not violate those definitions, it's not a violation of YouTube's terms of service. Nintendo doesn't have any right to complain unless they can force YouTube to change the policy, which they can at their own discretion.
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Old 05-22-2013, 04:08 PM   #24
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BAM

Quote:
https://plus.google.com/+YouTubeCrea...ts/SULUVfi3K2T

We know we have a lot of partners who love and want to post videos relating to games, so we wanted to share some tips to help you monetize gaming content.

As always, you should ensure that you have all the necessary rights to commercially use all content in a video before you submit it for monetization. Video game content may be monetized depending on the commercial use rights granted to you by licenses of video game publishers. Here are some tips!

● Check the video game publisher’s license agreement (Terms of Use, EULA etc). Some publishers allow you to use all video game content for commercial use and state that in the license agreement.
● Get written permission. Some publishers may allow you to monetize videos containing their game content if you reach out and ask.
● Videos showing software user interface may only be monetized if you’ve signed a contract with the publisher or paid a licensing fee.
● If you do have the appropriate license, submit your documentation to YouTube in a timely manner. If you do not have the appropriate license from a video game publisher, your videos must contain minimal use of video game or software user interface and be as informative and educational as possible - commentary must follow the live action shown step by step.
● Use your video metadata wisely! Use relevant, accurate titles, tags and descriptions for your videos.
● Make sure your dialogue is family friendly, so fans of all ages can enjoy your video.

A final reminder: Simply buying or playing a video game does not grant you the copyright or permission to monetize. To earn revenue from videos from the game, you need commercial rights.

For additional information about monetizing video game content, as well as what YouTube requires in the documentation you submit, please refer to the Help Center.
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Old 05-23-2013, 06:51 AM   #25
Jerichi
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>Lindz

Personally, the LPs I watch are done by people who generally attempt to play the games on actual consoles instead of emulators (e.g. Game Grumps, Bikdip, SRL players). While I suppose there are people out there who produce LPs of quality who use emulators, I'd really rather not watch an emulated LP since it 9 times out of 10 creates a less-than-quality production. The people who -are- using emulators probably aren't benefiting from this anyways.

I think the disconnect here is I'm referring to people who actually make money of LPs in the first place, while you're talking about the general LPing populous, which of course has its own problems. What I want to see is those people who are producing quality content getting rewarded for the quality they produce, whether it be for money or otherwise. The general LPing populous (those you're referring to who use emulators and play poorly and have terrible recording quality, etc.) are generally not going to be making money off the games, because a certain level of quality is required to keep the viewers needed to get the Partner status in the first place. Those who do a poor job of advertising the product aren't going to get money from it.

Should these people rely exclusively on LPing as a source of income? Eh, probably not, but that's really sort of a slippery slope as others have pointed out. At what point do you draw the line at making profit off of copyrighted content you hold no claim to?
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