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Lets Play: Dette kan forklare hvorfor Nintendo krever reklameinntekter

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Dette er fra et blog innlegg i Gamasutra.com og det kan lønne seg å lese denne nyheten i Gamer.no på forhånd. Emnet kan være interessant for de som lager "La oss spille" innhold på Youtube, eller for de som lager annet innhold som kan være beskyttet av opphavsrett. Som vi skrev i en nyhet tidligere så vil YouTube lansere streamingtjenester til spillprodusenter, slik at livestreaming av spill skal bli enklere. Det kan være interessant hvordan slike saker blir behandlet i fremtiden. Du kan følge en av våre medlemmers La oss spille serier her

Greg Lastowka is a Professor of Law at Rutgers School of Law-Camden and a co-director of the Rutgers Institute for Information Policy & Law. His research focuses primarily on the intersection of intellectual property and new technologies. Artikkel: Researching Copyright Law’s Impact on User-generated Content in Video Games

Hvem synes du burde tjene på Lets Play innhold, eller annet innhold på YouTube som er beskyttet av opphavsrett?

Bli med på undersøkelsen her

If you worked to create a video channel and a YouTube subscriber base only to have Nintendo grab your ad revenues, would you be happy about this? No, you wouldn't. Zack Scott, a YouTuber with over 200K subscribers, isn't happy. On his Facebook page, he explains (to a growing chorus of over 8K "likes") that he's giving up on making any more Let's Play videos for Nintendo games: "I love Nintendo, so I’ve included their games in my line-up. But until their claims are straightened out, I won’t be playing their games. I won’t because it jeopardizes my channel’s copyright standing and the livelihood of all LPers."

As Gamasutra reports, other LPers (Let's Play creators) are upset too. But the claim they make isn't just that they're being deprived of their livelihood. They also complain, like Scott, that Nintendo is betraying its "fans" and shooting itself in the foot. A common theme is that Let's Play videos provide "advertising" for Nintendo, building interest in their games and helping to sustain the community of enthusiasts. (In a similar vein, see this article on game modding by Hector Postigo.) To put it simply, if Nintendo cuts off Zack Scott's income stream and Scott stops making walkthroughs of Nintendo games, it's Nintendo that loses.

So why would Nintendo shoot itself in the foot? The answer can be summed up in two words: intellectual property.

As a co-director of the Rutgers Institute for Information Policy and Law, my day job is teaching and researching how intellectual property law applies to new technologies. I also have a particular affection for the law and business of video games. So I'm going to break the IP issues here down, as briskly as I'm able, in four component steps: 1) YouTube, 2) copyright, 3) trademark, and 4) IP policy.

1. YouTube

First off, I think it's interesting that much of the media coverage of this situation is simply pitting the Let's Play creators against Nintendo. This conveniently lets the technological behemoth that is YouTube float in the background in soft focus. But YouTube should really be front and center in this dispute. Consider: YouTube created the various "livelihoods" at stake by starting its Partner Program; YouTube orchestrates and directly profits from the advertising monetization of Let's Play videos; it is YouTube's Content ID technology that is helping Nintendo to locate gameplay videos; and finally, Nintendo could never have usurped Zack Scott's ad revenue streams if YouTube didn't enable that action. YouTube is smack in the middle of this dispute, and it is playing on both sides of the field.

But, in a way, that's a legally mandated position for YouTube, if YouTube wants to stay in the good graces of the copyright regime. From the standpoint of intellectual property law, YouTube's actions as an intermediary are primarily governed by the rules of the Digital Millenium Copyright Act, and 17 U.S.C. 512© in particular. As an online "service provider" under that statute, YouTube can be shielded from liability for the copyright infringements of its users, but only so long as it complies with the "notice and takedown" requirements of the statute. This means that when a copyright holder informs YouTube that a particular video infringes its rights, YouTube must "expeditiously" disable public access to that content. YouTube must also comply with many other requirements of Section 512. For instance, it must terminate account holders who are repeat infringers and must accomodate "standard technical measures" that relate to copyright policing.

So, essentially, in order to benefit from the "safe harbor" of Section 512, YouTube is required by law to play nice with the copyright industries. Apparently, in this case, YouTube has made the decision that playing nice means that Nintendo, not Zack Scott, is the rightful owner of the advertising revenues that are generated by Zack Scott's Let's Play videos. As YouTube states in itsmonetization policy, "Videos simply showing game play for extended periods of time may not be accepted for monetization."

So YouTube owns its platform and it can run the platform as it sees fit. But is giving Nintendo the advertising revenue stream here the right call as a matter of copyright law? That's a tricky question.

2. Copyright

Among the general public, copyright law is an increasingly familiar concept. Still, that doesn't make copyright "ownership" any less weird as a theoretical matter. We know what it means to own a physical item, but when we say Nintendo "owns" fictional characters such as Mario, Toad, and Princess Peach, what does that mean?

From the standpoint of copyright law, "ownership" means that Nintendo has the exclusive right to reproduce and distribute copies of the many works that incorporate those particular characters. Nintendo also hold the exclusive rights to adapt those works into new forms of media and to "perform" those works publicly. You can find these and other exclusive rights (there are six in total) in the copyright statute at 17 U.S.C. 106. In theory, a Let's Play video could infringe upon several of those rights. The uploaded videos (arguably) reproduce Nintendo's work, perform it publicly, distribute it, and may even create a "derivative work" based on it.

But does that mean that all unauthorized uses of recognizable Nintendo works on YouTube are always infringing? No. Indeed, it's notable that, in its statement, Nintendo referred to "Nintendo-owned content, such as images or audio of a certain length." That's a curious qualification for Nintendo to make as the copyright holder -- why "of a certain length"? I think Nintendo is probably admitting that short clips of gameplay footage, when used in the context of commentary or criticism, are not subject to Nintendo's exclusive control. This is because the copyright statute, at17 USC 107, makes it clear that the public has a right to "fair use" of copyright-protected works. This means that, without Nintendo's authorization, the public, in certain circumstances, is entitled to use Mario, Toad, and Princess Peach "for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research."

So doesn't that apply directly to Zack Scott? Isn't a Let's Play video a form of commentary or criticism under Section 107? Maybe it's even a form of "news reporting" or "teaching"?

Perhaps, but the case law on fair use makes it clear that not all uses of a work in "commentary, criticism, news reporting", etc., will be fair use. It's certainly possible to use a work and comment upon it, yet to use too much of the work and thereby exceed the protections of the fair use doctrine. For instance, I could not republish the entire first Harry Potter book with a few additional comments added, and claim that act of reproduction as a legal fair use. It may be that Nintendo believes game play videos "of a certain length" will be categorically outside the bounds of fair use and should be exclusively within its control.

Nintendo may believe that, but I'm not so sure. As Zack Scott puts it: "Video games aren't like movies or TV. Each play-through is a unique audiovisual experience." I think that's just right -- the peformance of a video game is something different than a clip from a movie. It could be argued that footage of original and creative game play -- even extended footage of creative game play -- constitutes a form of "transformative fair use" under copyright law. A very recent case in the Second Circuit, Cariou v. Prince, might be understood to support this argument. Following that case, if the aesthetic appeal of a Let's Play video is perceived as fundamentally different than the appeal of the interactive game, fair use might actually exist.

I'm hardly certain that the average federal court would accept that argument, but I do know that such evolutionary twists and turns are common in the law of fair use, which is notoriously unpredictable. Indeed, I think part of what may be motivating Nintendo's move here is the concern that the unauthorized monetization of gameplay video performance is rapidly becoming the "new normal." Nintendo may be concerned that if it doesn't assert its copyright interests, courts will ultimately start to accept the practice of monetizing unauthorized game play footage as a conventional form of fair use. And that sort of rule could have significant repercussions for the emerging North American pro-gaming scene. (As a point of comparison, see, e.g., T.L. Taylor's discussion of Blizzard's dispute with KeSPA in her new book.)

3. Trademark

Although copyright is the IP language being used by all the parties here, it's worth pointing out that Nintendo's IP rights aren't limited to copyright: Nintendo also claims trademark rights in Mario, Toad, Princess Peach, etc. (The "Princess Peach" trademark is at Reg. Serial No. 85,497,172, if you want to look it up.) In theory, trademark law is narrower in scope than copyright law. Trademark is intended to protect consumers from being deceived about the source of the goods and services they find in the marketplace. And personally, I don't think most people watching a Let's Play video featuring a Nintendo game are going to be confused about the origin of the video. In other words, I doubt anyone would presume Zack Scott's videos are the works of an employee working for Nintendo.

However, in recent years, some trademark owners have become much more aggressive about their IP rights. Some have sued, for instance, filmmakers who make humorous references to their products without authorization. Statutory expansions in the legal protection of brands, such as theTrademark Dilution Revision Act, may apply to famous video game characters, such as Mario and Luigi. For better or for worse, many trademark owners feel legally obliged to actively police against unauthorized commercial uses of their brands. This means that concerns about Nintendo's trademark interests, as well as its copyright interests, may explain Nintendo's efforts to limit the emerging business models of Let's Play monetization.

In summary, while Nintendo may indeed be shooting itself in the foot by grabbing the revenues from YouTube Let's Play creators, it may think this short term sacrifice makes sense in the long term. Nintendo may be willing to shoot itself in the foot today rather than allow unauthorized monetization to shoot it somewhere closer to the heart in the future. Nintendo may see today's Let's Play monetization as the tip of a looming user-generated iceberg. It may view the loss of "free" advertising as preferable to the loss of exclusive control over the performance of its games and its associated brand.

4. Policy

Finally, I'll want to add a brief appeal to you, the reader. Nintendo might be making a mistake, but it is surely pursuing what it believes is best for its own interests. But in the context of IP rights in video games, what do you think is in the best interest of the public? What should be the scope of intellectual property rights in video games?

This isn't just an idle question -- it is a matter that is being debated in Congress right now. The day after Zack Scott complained about Nintendo's YouTube actions, a Congressional subcommittee was considering how copyright law might be better adjusted to our new digital era. Copyright law is hardly set in stone. Periodically, Congress rewrites the copyright statute in very significant ways. It seems that a new balancing of digital copyright law is on the horizon in coming years. But in the case of new media, what should that balance be? Would we be better off in a world where Zack Scott could monetize Nintendo games in Let's Play videos to his heart's content? Or is it better if Nintendo has the right to sue unauthorized Let's Play creators for statutory damages?

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Ikke at jeg ser på "Lets play" videoer, men tror Nintendo graver sin egen grav. de har ikke hatt noe interessant siden super-nintendo imo. Har heller aldri sett reklame på youtube takke være adblock som aldri blir slått av.

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Tror, som teksten beskriver, at YT også har like mye skyld i dette. De spiller jo på begge sider av banen og tjener på det uansett. Sånn forbrukermessig vil jeg også holde en knapp på at spillerne skal få lov til å lage gameplay videoer, men hvor pengene skal styres er en annen sak. Nintendo blir jo laget til den store stygge ulven her, men YouTube er i samme båt egentlig?

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Youtube har forandret seg mye og er ikke den gode, åpne kanalen som de var før. Hvertfall ikke i samme utstrekning. De har også endret søkemotoren sin i den grad at den fremhever mer de videoene der reklameinntekter og lignende er høyere. Skaperen av det fantastiske Freeman's Mind forklarer her: http://www.accursedfarms.com/escape-from-machinima/

My views have been cut in half multiple times, despite adding more videos this whole time. While you could maybe blame this on the age of the show or not having more frequent updates, that would only account for a gradual decline looking like a wheelchair ramp, not the dive bomber maneuver that is this chart. So what’s causing this? The short answer is Youtube. Their algorithm “tweak” in 2011 caused me to lose half my views. Not just in popular recent videos, in EVERYTHING from years back. I’ve read about many people losing up to 90% of their audience during this time. So are my old views going towards other machinima makers, giving lesser known people more exposure and a better chance of being seen? No, they’re going towards videos like this:

That video has 42 million views and will get recommended to you even if it has nothing to do with what you’re searching for. Why? Because Google can profit more by steering you towards videos already getting a crapload of views and by companies paying money to advertise their videos on Youtube more than they can by sending you only the more relevant results. Youtube’s “tweak” is making your search results worse than they used to be and it’s making already huge videos bigger and everyone else smaller because they’re less profitable. It’s essentially killing the “long tail.” The viewers lose because they won’t find as many custom-tailored results. Most content creators lose because it means a large drop in views. Best I can tell, the only people benefiting from these changes are companies that were already very large to begin with. Google’s motto has long been “don’t be evil”, well in my opinion, what they’re doing now seems kind of evil. Maybe they’re taking lessons from the music industry.

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Interesant.

Hvis jeg hadde lastet opp en video av meg og en kompis som spiller ludo, og folk hadde klikket på det og sett det...Hvordan ville det sett ut hvis Damm (eller hvem det nå er som lager ludo) hadde krevd del av reklameinntektene ?!?!

For noe absolutt 100% sprøyt !

Og det er ikke utypisk youtube (google) å gjøre slike bedritene ting hvis det er 5 øre å tjene eller spare.

Ennå i dag , 4 , 5 år etter folk oppdaget det er det fortsatt null problem å ødelegge en youtube-konto ved å legge inn falske DMCA takedown-noticer.

Riktig nok vanskeligere med partnere. Dog enkelt ellers.

Det siste året har jeg oppdaget flere spill gjennom let's plays på youtube.

Da jeg lette etter dokumentarfilmer om fly fra ww2 oppdaget jeg WarThunder. Som jeg åff kårs har brukt penger på.

( å spille WT uten premium er jo selvfølgelig tyveri.) :grin:

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Har sett en del letsplay videoer og oppdaget spill jeg ikke visste om fra før. Mest interessant syne jeg det er å se på indie spill, men jeg merker at det ofte stopper der og det blir ikke noe kjøp. Med det sagt så ville jeg ikke engang visst om spillet og da ville det vært enda mindre sjanse for kjøp, men hvordan det fungerer i Nintendo verden vet jeg ikke. Uansett så kan det nok være sånn at et spill ofte er en personlig opplevelse og en Lets Play episode ikke kan gi den samme opplevelsen fordi spill er interaktivt, Lets Play og YouTube er mer likt TV. Det blir interessant å se hva som skjer med den nye streaming APIen som YouTube ønsker å gi spillutviklerne, så det skal bli lettere for oss spillere å streame direkte til YouTube - i motsetning til feks Twitch som krever en del tilleggsprogrammer. Hvordan vil copyright og opphavsretten beskyttes?

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