Nintendo doesn't get fair use

In the YouTube community there's a bit of a kerfuffle over the fact that Nintendo has been doing two things. First, they've been taking down Let's Play videos because of copy right infringement. The second is they've been putting ads on those videos they aren't taking down. I don't believe that either of these should be allowed. As always, I'm not a lawyer - keep that in mind.

Let's Play videos are essentially play through of a particular game. Nintendo is claiming that they own the copyright to video because they created the content that is in the game, including the text, music, artwork, and characters. This is of course completely true. However, they don't own everything in the video. The person doing the let's play makes choices so, while the overall story arc is in fact the same, the manner in which the game is completed is unique and can happen in very different order. Which means if Nintendo owns the copyright of the way you play it, then it owns every possible way the game could ever be played. I could see that there's some logic to that argument, however, it's impossible to predict how the game will play out any given time and it also means that Nintendo also owns every time the player fails to beat the game and gives up.

If this was the only thing in the video, I'd say Nintendo has a decent argument, but even then it's something of a remix, because things are being changed, events happen randomly that aren't under Nintendo's control, they set the parameters for something to happen, but they couldn't predict a priori when something was going to happen or what items would be dropped at any given time - which makes the game different each time.

Furthermore, many of these videos have voice overs by the players. In many cases the players are talking about things completely unrelated to the actual game which Nintendo cannot claim as their own copyright. In many cases it is actually the YouTuber that is driving viewership to the video and not the game alone. Of course if you don't like Pokemon you're not going to sit and watch a 45 minute play through of Pokemon even if you find the person hilarious (or you might). It's the personalities that make these videos valuable as much as the Nintendo game material.

I also think that Nintendo needs to put this in perspective of other mediums that people do a similar type activity. Think of someone analyzing a film, a book, or TV Show - in all of these cases there are direct quotes, clips of the video or whatever with pausing and zooming and highlighting and whatever. In addition there is custom material that the specific critic ads to the video which makes it something new. This constitutes Fair Use. These reviews make the film more valuable because it draws viewers to the movie, the is the same for video games.

Nintendo doesn't understand this and it's likely to be contested, eventually Nintendo will lose this and will have lost a lot of good will from the gaming community. This will end poorly for Nintendo.

YouTube Copright School

Since I've been posting recently about copyright and infringement and YouTube, I figured I should watch the video they have posted for "Copyright School." Although I tried to embed the video into this post it appears it's not working. So you can find the link here.

The video itself is moderately annoying. The song used through out the video kind of reminds me of this song.  It explains the bare bones basics of copyright works and how copyright can work on YouTube. It shows how copying a video is copyright infringement, and how potentially filming a live concert can be considered copyright infringement. Although they didn't explain it was infringement because of the song not because of the video itself.

The fair use part is rather deplorable. However, this is to be expected. I'm sure whenever the writers got to this section the lawyers heavily edited it. I'd argue that it's overly protective of YouTube. By stating that most remixes are likely to be outside of fair use, the video makes it very safe for YouTube itself. Youtube can point to this video and say, "See we told them those remixes weren't allowed under fair use." However, this is not entirely accurate. In fact the very video they use to explain this problem most likely is covered by fair use. Realistically, there's no difference between the video Youtube uses and Numa Numa.


I'm not an expert at fair use, so I decided to post some commentary from one person who is. Here's a pretty good discussion between Colbert and Lawrence Lessig. In this they discuss how remixing is and should be ok under fair use. It can benefit both parties. Here's a blog post written by Lessig describing some of the failures of the fair use system as well.

So what can we gather from these two discussions and the YouTube video? First, YouTube is clearly putting itself in a position to not be liable for any work that may not actually fall under fair use. Second, it's difficult to determine what is and what is not fair use. Lessig also points out that there is a dividing line between commercializing the work and keeping it for free. I'd suggest as much as possible to clearly understand these issues before attempting to commercialize any remixes.

In the terms of the internet commercialization isn't the same as it used to be. Placing ads on your blogs or within your videos basically commercializes your work.

Btw here are two remixes from the Colbert Lessig Inteview.