5 ms·

Nintendo grabs money, control from fans promoting its games on Youtube

37 points by c-oreills 13y ago

ttt_ 13y ago
On one side there is huge incentive to be social on the web, which paramounts to sharing stuff with others. On the other side, no one will let you share their content. If the world were a person, he would be right on track for schizophrenia.
- adamors 13y ago
  It's not entirely Nintentdo's content though, is it?
  - J_Darnley 13y ago
    No, I believe most of these "Lets Play" videos contain commentary voice-overs by the players, but neither they nor Google care about this with the Content ID system.
    - freehunter 13y ago
      I'm not a copyright lawyer, but that sounds like an unauthorized derivative work. For fair use to apply, the work has to be transformative, changing the original work in a substantial way. Since I'm not a lawyer I don't know if recording your own voice over the video would be considered significantly transformative or not.
      - DanHulton 13y ago
        IANAL either, but I'd say it's pretty transformative. It goes from binary code and assets you can interact with to a video with commentary. Song mashups already go from songs to similar-sounding songs and those are fine. Again, IANAL, but if mashups are okay, it makes sense to me that Let's Play videos should fall under the same - if not more generous - rules.
        skymt 13y ago
        But legally mashups aren't okay. Bridgeport Music, Inc. v. Dimension Films was a sucessful suit over a two-second sample. The court decided that unlicensed use of even this brief riff was infringement. Mashups are tolerated because of their place in musical culture, but if a copyright owner decided to sue they'd have an easy case. (Though maybe not from a PR perspective.) (I'm also not a lawyer.)
      - LanceH 13y ago
        The original work is an interactive piece of software. The videos in question are people showing what can be done with something which is copyrighted. They videos don't provide any ability to play the game. The games are only being played by a single person. There is no copy of the game being made. A running commentary of a single played instance of a game is entirely different than sitting down with a controller in your hand and playing the game. That seems significantly transformative to me.
        jakerocheleau 13y ago
        Thank you for this explanation it really puts the topic in a better perspective for me.
        freehunter 13y ago
        The audio/visual aspect is kept. Interactive gameplay is simulated. The person watching gets to see the story unfold. It's clearly a derivative work, the question is where does the line stand and does making a LP cross it? And that's a huge problem with copyright law, it's so grey in so many areas. If the exact situation hasn't been defended in court, it's unclear whether or nothing something is legal.
        LanceH 13y ago
        The story playing out is one thing that makes it a tough call where the line could be drawn. What if it isn't a RPG? What if we're talking about a video of mario kart? If I bought a physical Nintendo chess set, I don't think anyone would claim a video of my gameplay would be Nintendo's property. By extension, a video of me playing a virtual nintendo chess game with my commentary should still be mine, after all, the story is being written by the players. I think that's fairly analogous to a commentary of a mario kart game. Now it gets interesting with a role playing game like zelda perhaps. I certainly have a right to produce a gameplay from it. Do I have a right to record it? Why not? How is it really any different that recording a play with a physical object, something which is done every day. Nintendo may have the storyline, but they didn't create the actual play. That is a result of an authorized use of the game. Player runs over here, picks up a sword -- that's something the player did, not Nintendo. I think in the end it boils down to what the lawyers can convince a judge is true, rather than what can be proven or what is the law.
- stonemetal 13y ago
  Nintendo is allowing sharing just not profiting.
  - witek 13y ago
    Good point. So Nintendo would be getting a cut not take the whole amount?
belorn 13y ago
How can Nintendo claim ownership of the videos? I can see how they might claim ownership of the images and in-game sounds, but the commentary and actions made by the player is the ownership of the player. Taking control of content which they only have partial legal right to is still very much illegal and copyright infringement. They are basically knowingly committing commercial piracy, including sending knowingly false take down notices (if they claim complete ownership). In times like that, the authors of said videos has a good chance to sue for damages.
- raganwald 13y ago
  "Claim ownership of" is within the context of YouTube's ecosystem and YouTube's TOS. As a YouTube partner, they have the right to monetize videos that YouTube agrees they "own," block them, &c. I don't think that asserting ownership within YouTube is equivalent to asserting legal ownership of all of the IP involved. For example, I can't see them rebroadcasting any of these videos in another medium.
  - belorn 13y ago
    Can the actually author of the video take down the videos (ie take control of the copyright)?
    - sp332 13y ago
      Yeah, the video is still on the account and under control of the original uploader. The only thing that's changed is they can't control is that the ads on their videos now fund Nintendo instead of themselves.
DanBC 13y ago
It's a stupid move by Nintendo. Some people view Let's Plays before buying a game. People aren't going to go to the trouble of recording Let's Plays without getting any kind of ad revenue from it. So people aren't going to bother recording Nintendo games anymore. And they can just delete all the Nintendo videos they already have up. So now Nintendo doesn't have anyone promoting their games (for free to Nintendo) and isn't getting any of the very small amounts of ad revenue and is competing against a bunch of other games that do have Let's Plays up online.
- fhd2 13y ago
  > It's a stupid move by Nintendo. Definitely not nice, but stupid? I'm not sure about that. I have some doubts that Nintendo (being usually very good at not making their community angry IIRC) would do this without reason. Can we rule out that they actually noticed declining sales of some titles as Let's Play videos about them popped up? I can't imagine they wanted a PA article on this though.
  - mistercow 13y ago
    >Can we rule out that they actually noticed declining sales of some titles as Let's Play videos about them popped up? Let's run with that reasoning for a minute. That means that they did a study and found not only that the Let's Plays were costing them sales, but also that the lost revenue was small enough that it would be more profitable to keep the videos up and intercept the ad revenue, than to have them taken down entirely. What that means is that the effect size they observed must have been tiny. As a consequence, to have observed a statistically significant correlation, they would have needed an extremely large sample size. Keep in mind that these are some very noisy variables they are supposed to have measured. So in conclusion, yes I think we can rule that possibility out. Or at least, if they did notice declining sales, they were irrational for thinking that was sufficient evidence to take this action.
    - dykesa 13y ago
      You're assuming studies were done as opposed to just some exec hearing about it in a meeting and going "We need to get a handle on this thing"?
tlarkworthy 13y ago
Presumably Youtube asked the same question to Nintendo that Youtube did to Mojang, do you want to monetize your trademarks? Mojang declined earning off Minecraft's massive youtube impact[1], Nintendo wanted the cash. And so we can clearly see Nintendo has lost its way and Minecraft is the the new Nintendo. [1] https://twitter.com/notch/status/335045859156819969 https://twitter.com/notch/status/335045859156819969
- antidaily 13y ago
  This is key, I think. YouTube probably came to Nintendo. Like, sales guys. "Hey, here's 8 figures you could be pocketing".
  - shawabawa3 13y ago
    Why would youtube do that though? They get their cut whether it goes to nintendo or the channel owner, and in fact it makes a lot more sense for them to keep the money going to the channel to incentivise them to make more videos
    - witek 13y ago
      They could have given it as one of the reasons to entice Nintendo into the partnership program.
    - tlarkworthy 13y ago
      youtube videos are not monetized unless you turn advertising on. So presumably with mojang permission youtube would have been able to turn on alot more adverts.
- tomrod 13y ago
  I certainly agree Mojang has done some cool stuff, but they'll need to step up their game significantly if they're going to be "the next Nintendo".
arkitaip 13y ago
Christ, how deep in trouble is Nintendo if they are going after youtubers' - i.e. their marketing partners - money? I mean, what kind of revenue are we talking here, a couple of millions?
- witek 13y ago
  Yeah, nuts. Also, did nobody there work out how much they would have to PAY for this much coverage?
specto 13y ago
I understand that some people view this as a bad thing, but if you want Nintendo to keep making games and consoles, some revenue would do them good.
- sillysaurus 13y ago
  Ad revenue won't help them if they die as a videogame company. This is a long-term strategic mistake.
  - mistercow 13y ago
    I don't even know that it's that long-term of a mistake. We can expect professional quality Let's Plays for Nintendo games to die off almost instantly (since it's no longer a profession if Nintendo takes all the revenue), and for the people who do them to switch to non-Nintendo games. In other words, they aren't even going to make very much money off of this in the short term, and they're driving the free advertising to their competition.
- wavefunction 13y ago
  I don't think YouTube ad revenues are going to keep Nintendo from circling the drain. Seems like classic corporate overreach and shooting themselves in the foot.
- ianstallings 13y ago
  Good news, I want no such thing.
- DanBC 13y ago
  I would much rather Nintendo monetise things they've made. Someone posted this link here the other day. It's a good game. Nintendo could easily sell this on various platforms and app-stores. (http://www.pokemon.jp/#/contents/enjoy/play_pass/2.html http://www.pokemon.jp/#/contents/enjoy/play_pass/2.html)
sillysaurus 13y ago
A good analogy is buying a car. If I buy a car and make a video at the beach that happens to include the car, what right does the car manufacturer have to say, "The video incorporates my IP, so therefore we're going to force you to show ads for our car"? You could argue that videogames are somehow different. But they're not. If someone makes a video about having fun with their friends, then the game they're doing it in is almost incidental. For example: http://www.youtube.com/watch?v=uD5J5LEBVCk http://www.youtube.com/watch?v=uD5J5LEBVCk Videos such as that one take a lot of work to make. It takes many hours to record the content, many hours to edit it, and a way to promote it once it's made. The game maker probably doesn't deserve any slice of revenue generated from that. The game is incidental.
- bvdbijl 13y ago
  I wouldn't really call that a great analogy, a better analogy would be if you record a video of you showing the insides of the car and going on a trip where you describe how the car drives. But still, dumb dumb move by Nintendo
  - deleted 13y ago
    [deleted]
lomegor 13y ago
All these articles are assuming Nintendo will get the whole profits from the videos, but I'm not seeing that in any sources. Does any one have more info on that? As far as I understand it, Nintendo will only get a cut from the profits, YouTube another cut, and the rest will go to the creator of the video. Not that it makes the move much better, but I think it's important to note if people can still make money from Nintendo Let's Plays. The other thing I would like to know if anyone has more info, is if this in fact, affects Let's Plays. Maybe they were only going after machinima, or videos that show trailers or cutscenes. Is there any source where I can read more of that? I think this could be the crux of the issue: if they aren't trying to get money from Let's Plays, the move isn't so bad. EDIT: NVM, read the original source and they are claiming LP videos... that's sad, really. What I find weird about this whole thing is that neither Nintendo or YouTube have issued an explanation of how things are going to work, and why they think the move is a good one. With all the backslash that this has created in the last week, I would think those companies would like to offer their side of the argument.
xanadohnt 13y ago
You're killing free advertising, Nintendo. Good move.
rusbra 13y ago
Nintendo taking after Sony.
zamalek 13y ago
Quick question for the legally-knowledgeable here (I am not an LPer and won't act on the knowledge, just want to know if what I know about the law is right). As far as I know when you use any recorded human product (voice, movement, etc.) you need a signed "release form" from the people involved in that - else you stand to be sued for damages (due to rights violation, nothing to do with copyright, although I guess the LPers could have a case there as well). Music artists, for example, need to sign one of these release forms to give their publisher the rights to their voice. Considering that the LPs are 50/50 Nintendo/LPer couldn't the LPer's [in theory] lash back and demand royalties because Nintendo illegally become their publisher without acquiring release forms (the YouTube EULA is between the LPer and YT, not the LPer and Nintendo)? Or indeed demand damages that far exceed any form of profit they have lost from the adverts in the first place (rights violation)? Or am I completely wrong?

37 points by c-oreills 13y ago

ttt_ 13y ago

On one side there is huge incentive to be social on the web, which paramounts to sharing stuff with others. On the other side, no one will let you share their content. If the world were a person, he would be right on track for schizophrenia.

adamors 13y ago
It's not entirely Nintentdo's content though, is it?
- J_Darnley 13y ago
  No, I believe most of these "Lets Play" videos contain commentary voice-overs by the players, but neither they nor Google care about this with the Content ID system.
  - freehunter 13y ago
    I'm not a copyright lawyer, but that sounds like an unauthorized derivative work. For fair use to apply, the work has to be transformative, changing the original work in a substantial way. Since I'm not a lawyer I don't know if recording your own voice over the video would be considered significantly transformative or not.
    - DanHulton 13y ago
      IANAL either, but I'd say it's pretty transformative. It goes from binary code and assets you can interact with to a video with commentary. Song mashups already go from songs to similar-sounding songs and those are fine. Again, IANAL, but if mashups are okay, it makes sense to me that Let's Play videos should fall under the same - if not more generous - rules.
      - skymt 13y ago
        But legally mashups aren't okay. Bridgeport Music, Inc. v. Dimension Films was a sucessful suit over a two-second sample. The court decided that unlicensed use of even this brief riff was infringement. Mashups are tolerated because of their place in musical culture, but if a copyright owner decided to sue they'd have an easy case. (Though maybe not from a PR perspective.) (I'm also not a lawyer.)
    - LanceH 13y ago
      The original work is an interactive piece of software. The videos in question are people showing what can be done with something which is copyrighted. They videos don't provide any ability to play the game. The games are only being played by a single person. There is no copy of the game being made. A running commentary of a single played instance of a game is entirely different than sitting down with a controller in your hand and playing the game. That seems significantly transformative to me.
      - jakerocheleau 13y ago
        Thank you for this explanation it really puts the topic in a better perspective for me.
      - freehunter 13y ago
        The audio/visual aspect is kept. Interactive gameplay is simulated. The person watching gets to see the story unfold. It's clearly a derivative work, the question is where does the line stand and does making a LP cross it? And that's a huge problem with copyright law, it's so grey in so many areas. If the exact situation hasn't been defended in court, it's unclear whether or nothing something is legal.
        LanceH 13y ago
        The story playing out is one thing that makes it a tough call where the line could be drawn. What if it isn't a RPG? What if we're talking about a video of mario kart? If I bought a physical Nintendo chess set, I don't think anyone would claim a video of my gameplay would be Nintendo's property. By extension, a video of me playing a virtual nintendo chess game with my commentary should still be mine, after all, the story is being written by the players. I think that's fairly analogous to a commentary of a mario kart game. Now it gets interesting with a role playing game like zelda perhaps. I certainly have a right to produce a gameplay from it. Do I have a right to record it? Why not? How is it really any different that recording a play with a physical object, something which is done every day. Nintendo may have the storyline, but they didn't create the actual play. That is a result of an authorized use of the game. Player runs over here, picks up a sword -- that's something the player did, not Nintendo. I think in the end it boils down to what the lawyers can convince a judge is true, rather than what can be proven or what is the law.
stonemetal 13y ago
Nintendo is allowing sharing just not profiting.
- witek 13y ago
  Good point. So Nintendo would be getting a cut not take the whole amount?

belorn 13y ago

How can Nintendo claim ownership of the videos? I can see how they might claim ownership of the images and in-game sounds, but the commentary and actions made by the player is the ownership of the player. Taking control of content which they only have partial legal right to is still very much illegal and copyright infringement. They are basically knowingly committing commercial piracy, including sending knowingly false take down notices (if they claim complete ownership). In times like that, the authors of said videos has a good chance to sue for damages.

raganwald 13y ago
"Claim ownership of" is within the context of YouTube's ecosystem and YouTube's TOS. As a YouTube partner, they have the right to monetize videos that YouTube agrees they "own," block them, &c. I don't think that asserting ownership within YouTube is equivalent to asserting legal ownership of all of the IP involved. For example, I can't see them rebroadcasting any of these videos in another medium.
- belorn 13y ago
  Can the actually author of the video take down the videos (ie take control of the copyright)?
  - sp332 13y ago
    Yeah, the video is still on the account and under control of the original uploader. The only thing that's changed is they can't control is that the ads on their videos now fund Nintendo instead of themselves.

DanBC 13y ago

It's a stupid move by Nintendo. Some people view Let's Plays before buying a game. People aren't going to go to the trouble of recording Let's Plays without getting any kind of ad revenue from it. So people aren't going to bother recording Nintendo games anymore. And they can just delete all the Nintendo videos they already have up. So now Nintendo doesn't have anyone promoting their games (for free to Nintendo) and isn't getting any of the very small amounts of ad revenue and is competing against a bunch of other games that do have Let's Plays up online.

fhd2 13y ago
> It's a stupid move by Nintendo. Definitely not nice, but stupid? I'm not sure about that. I have some doubts that Nintendo (being usually very good at not making their community angry IIRC) would do this without reason. Can we rule out that they actually noticed declining sales of some titles as Let's Play videos about them popped up? I can't imagine they wanted a PA article on this though.
- mistercow 13y ago
  >Can we rule out that they actually noticed declining sales of some titles as Let's Play videos about them popped up? Let's run with that reasoning for a minute. That means that they did a study and found not only that the Let's Plays were costing them sales, but also that the lost revenue was small enough that it would be more profitable to keep the videos up and intercept the ad revenue, than to have them taken down entirely. What that means is that the effect size they observed must have been tiny. As a consequence, to have observed a statistically significant correlation, they would have needed an extremely large sample size. Keep in mind that these are some very noisy variables they are supposed to have measured. So in conclusion, yes I think we can rule that possibility out. Or at least, if they did notice declining sales, they were irrational for thinking that was sufficient evidence to take this action.
  - dykesa 13y ago
    You're assuming studies were done as opposed to just some exec hearing about it in a meeting and going "We need to get a handle on this thing"?

tlarkworthy 13y ago

Presumably Youtube asked the same question to Nintendo that Youtube did to Mojang, do you want to monetize your trademarks? Mojang declined earning off Minecraft's massive youtube impact[1], Nintendo wanted the cash. And so we can clearly see Nintendo has lost its way and Minecraft is the the new Nintendo. [1] https://twitter.com/notch/status/335045859156819969 https://twitter.com/notch/status/335045859156819969

antidaily 13y ago
This is key, I think. YouTube probably came to Nintendo. Like, sales guys. "Hey, here's 8 figures you could be pocketing".
- shawabawa3 13y ago
  Why would youtube do that though? They get their cut whether it goes to nintendo or the channel owner, and in fact it makes a lot more sense for them to keep the money going to the channel to incentivise them to make more videos
  - witek 13y ago
    They could have given it as one of the reasons to entice Nintendo into the partnership program.
  - tlarkworthy 13y ago
    youtube videos are not monetized unless you turn advertising on. So presumably with mojang permission youtube would have been able to turn on alot more adverts.
tomrod 13y ago
I certainly agree Mojang has done some cool stuff, but they'll need to step up their game significantly if they're going to be "the next Nintendo".

arkitaip 13y ago

Christ, how deep in trouble is Nintendo if they are going after youtubers' - i.e. their marketing partners - money? I mean, what kind of revenue are we talking here, a couple of millions?

witek 13y ago
Yeah, nuts. Also, did nobody there work out how much they would have to PAY for this much coverage?

specto 13y ago

I understand that some people view this as a bad thing, but if you want Nintendo to keep making games and consoles, some revenue would do them good.

sillysaurus 13y ago
Ad revenue won't help them if they die as a videogame company. This is a long-term strategic mistake.
- mistercow 13y ago
  I don't even know that it's that long-term of a mistake. We can expect professional quality Let's Plays for Nintendo games to die off almost instantly (since it's no longer a profession if Nintendo takes all the revenue), and for the people who do them to switch to non-Nintendo games. In other words, they aren't even going to make very much money off of this in the short term, and they're driving the free advertising to their competition.
wavefunction 13y ago
I don't think YouTube ad revenues are going to keep Nintendo from circling the drain. Seems like classic corporate overreach and shooting themselves in the foot.
ianstallings 13y ago
Good news, I want no such thing.
DanBC 13y ago
I would much rather Nintendo monetise things they've made. Someone posted this link here the other day. It's a good game. Nintendo could easily sell this on various platforms and app-stores. (http://www.pokemon.jp/#/contents/enjoy/play_pass/2.html http://www.pokemon.jp/#/contents/enjoy/play_pass/2.html)

sillysaurus 13y ago

A good analogy is buying a car. If I buy a car and make a video at the beach that happens to include the car, what right does the car manufacturer have to say, "The video incorporates my IP, so therefore we're going to force you to show ads for our car"? You could argue that videogames are somehow different. But they're not. If someone makes a video about having fun with their friends, then the game they're doing it in is almost incidental. For example: http://www.youtube.com/watch?v=uD5J5LEBVCk http://www.youtube.com/watch?v=uD5J5LEBVCk Videos such as that one take a lot of work to make. It takes many hours to record the content, many hours to edit it, and a way to promote it once it's made. The game maker probably doesn't deserve any slice of revenue generated from that. The game is incidental.

bvdbijl 13y ago
I wouldn't really call that a great analogy, a better analogy would be if you record a video of you showing the insides of the car and going on a trip where you describe how the car drives. But still, dumb dumb move by Nintendo
- deleted 13y ago
  [deleted]

lomegor 13y ago

All these articles are assuming Nintendo will get the whole profits from the videos, but I'm not seeing that in any sources. Does any one have more info on that? As far as I understand it, Nintendo will only get a cut from the profits, YouTube another cut, and the rest will go to the creator of the video. Not that it makes the move much better, but I think it's important to note if people can still make money from Nintendo Let's Plays. The other thing I would like to know if anyone has more info, is if this in fact, affects Let's Plays. Maybe they were only going after machinima, or videos that show trailers or cutscenes. Is there any source where I can read more of that? I think this could be the crux of the issue: if they aren't trying to get money from Let's Plays, the move isn't so bad. EDIT: NVM, read the original source and they are claiming LP videos... that's sad, really. What I find weird about this whole thing is that neither Nintendo or YouTube have issued an explanation of how things are going to work, and why they think the move is a good one. With all the backslash that this has created in the last week, I would think those companies would like to offer their side of the argument.

xanadohnt 13y ago

You're killing free advertising, Nintendo. Good move.

rusbra 13y ago

Nintendo taking after Sony.

zamalek 13y ago

Quick question for the legally-knowledgeable here (I am not an LPer and won't act on the knowledge, just want to know if what I know about the law is right). As far as I know when you use any recorded human product (voice, movement, etc.) you need a signed "release form" from the people involved in that - else you stand to be sued for damages (due to rights violation, nothing to do with copyright, although I guess the LPers could have a case there as well). Music artists, for example, need to sign one of these release forms to give their publisher the rights to their voice. Considering that the LPs are 50/50 Nintendo/LPer couldn't the LPer's [in theory] lash back and demand royalties because Nintendo illegally become their publisher without acquiring release forms (the YouTube EULA is between the LPer and YT, not the LPer and Nintendo)? Or indeed demand damages that far exceed any form of profit they have lost from the adverts in the first place (rights violation)? Or am I completely wrong?