Nintendo's youtube policy is ridiculous and sets a bad precedent

"themanwithsauce - has as many vehicles as job titles" (themanwithsauce) 01/30/2015 at 13:40 • Filed to: None

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For the uninformed/uninterested, nintendo recently released a new policy for people who wish to monetize videos that feature the use of nintendo gameplay or game footage, advertisements, or any other artistic assets relating to their properties (including ads and trailers). Naturally, the people who make "Let's play" videos or any other form of video like that and has made this content creation a job, are pretty livid. Nintendo's new policy not only gives them up to 35% of your revenue (might have changed), but your videos are delayed for a few days and have to be approved, oh and you have to be an approved partner with nintendo to do any of this at all. If you do not comply, you get copyright notices and you can have your channel shut down. This is incredibly short sighted and has bad implications if allowed to go beyond the realm of video games.

Some people have said that this is perfectly fair. Some people are also no more intelligent than a rotting stump. On the one hand, yes nintendo did make those games. But if you look at the game as a tool that YOU BOUGHT and then use to make original content then Nintendo's plan starts to look stupid. Let's take another youtube channel - MightyCarMods. Marty and Moog make some extra coin by showing you how to build and modify and repair cars. Last I checked, Nissan didn't ask for a cut of their money because they had a bunch of episodes featuring a 240sx. Why? They had no legal ground to do it. The car was legally purchased and Nissan got their profits for designing and making the car. That's it. As far as I'm aware, unless these videos Nintendo is trying to block were made using pirated games/hardware or show you how to illegally acquire these things, there is no ground Nintendo can stand on.

Let's put the shoe on another foot - do you really think Honda would approve of Mr. Regular opening his "Honda Accord" review with the line " Honda Accord.....Honda Accord..........Honda Accord .....Business Accounts.....Business Accounts......Business Accounts BUTTPLUGS?!?!?" but what right does honda have to stop him? None. Even though they own the rights to the name and design, the physical car being shown is not theirs. And Mr. Regular used an original script besides a few seconds of their advertising so again, he made some money by making unique content. And he did NOT have to have Honda approve of his video just because it starred one of their physical cars.

This would also be a different story if someone simply used the ideas nintendo came up with to make their own game or cartoon or whatever and pass it off as an official thing to be sold to people for money. Going back to the car analogy - you can't make "Ford Mustang Pro Racer" without Ford giving the nod and getting a cut. BUT! In exchange, Ford will also give you access to the Mustang designers and engineers so you can make your game accurate. Ford wants their product to look good. In fact, that's how games like Gran Turismo and Forza exist - the engineers and designers at all these companies go above and beyond to make their products look and sound and drive as best as they can. It isn't just about the licensing fee, it's about the partnership and exposure.

So going back to nintendo, if you make a "Let's play" of a game you bought, nintendo says "We call 30% of any money you make because we made the game you bought". And then provides nothing for it. It's a double-sale. You not only have to buy the game, but you also have to give nintendo more money because you chose to play their games on your youtube channel and give commentary/reviews .Now there is something to be said if nintendo goes and gives you a system/game to keep for a review and says "We'll provide an early copy and production assistance BUT we need the review submitted by X day and please avoid the use of the word "buggy" because (insert reason here)". But that isn't the case for most of these channels. Nintendo is providing nothing more than a roadblock.

I hope this gets stopped here soon. It has bad implications for future channels of a company says "Whoop! Our product is featured in your video! Give us money!!!!" or "Yeah we know you made this video but we need to approve it because you DID use Makita power drills pretty often so we need to make sure the Makita brand is represented well soooooo........yeah.......we might let you know in a week". But that's what happens when stuffy old men fail to understand newer business models.

CalzoneGolem > themanwithsauce - has as many vehicles as job titles 01/30/2015 at 13:49

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Nintendo has always been tight about content with the Nintendo name on it.

themanwithsauce - has as many vehicles as job titles > CalzoneGolem 01/30/2015 at 13:52

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True, but now they're not just trying to stop it, they're effectively trying to profit off of it.

Takuro Spirit > themanwithsauce - has as many vehicles as job titles 01/30/2015 at 13:54

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I heard Mircoshaft was sort of the same way now. They won't even let you put the game name in your video title.

I'll just stick to dashcam videos with little to no music on them... working on one now, in fact.

ADabOfOppo; Gone Plaid (Instructables Can Be Confusable) > themanwithsauce - has as many vehicles as job titles 01/30/2015 at 13:55

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It's also what happens when a company is so arrogant it thinks it owns everything even remotely related to their product.

This whole, "yeah you bought it, but you don't really own it, and you agree to abide by the EULA or else" licensing model is bullshit.

Corporate America will ruin us if we don't start fighting for our ownership rights and freedoms to use products as we like, whether the company that made intended it for that use or not.

Doge_Supreme drives a BRZ > themanwithsauce - has as many vehicles as job titles 01/30/2015 at 13:55

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It's free publicity for them just to let people post the videos. There is no reason they need to take a cut from free advertisement. Plus with them reviewing every video before it gets published, they have final say on what gets posted, so if there was maybe a review that said some negative things about one of their games they could pull it. If Nintendo gets away with this, how long until other companies follow suit, and there are no more honest reviews around.

StoneCold > themanwithsauce - has as many vehicles as job titles 01/30/2015 at 13:55

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To be fair, I have indeed not bought games because I just watched the "Let's Play" videos; sometimes because they were bad games, sometimes because I could not see myself playing it again. But 4 times out of 5, I would have bought the game used anyway. Also, I've bought games like Civ V and Golden Sun new because I liked the videos so much.

ADabOfOppo; Gone Plaid (Instructables Can Be Confusable) > Takuro Spirit 01/30/2015 at 13:56

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Until the car companies start taking a cue from Nintendo and start filing DCMA takedown notices because the drooling tree-stump who drove their car made it the subject of your video.

themanwithsauce - has as many vehicles as job titles > StoneCold 01/30/2015 at 13:58

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And that's the rub, right there - the threat of a bad product going viral. If you object to people mass-sharing news of your product because "Well then no one will buy it" then maybe you should make a good product so that everyone buys it!

spanfucker retire bitch > themanwithsauce - has as many vehicles as job titles 01/30/2015 at 13:59

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Nintendo being obstinate and refusing to adapt to the changing times? COLOR ME SURPRISED!

Aren't these idiots still using friend codes while PSN and XBL are eating their fucking lunch?

themanwithsauce - has as many vehicles as job titles > Doge_Supreme drives a BRZ 01/30/2015 at 13:59

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Or what about review parodies like RCR? In my honda example, there is no way honda's PR people would understand that RCR is parody/fiction and would tell youtube to yank the review because it uses their product in a way they don't like.

jariten1781 > themanwithsauce - has as many vehicles as job titles 01/30/2015 at 14:00

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Nah, video games aren't tools. They fall under the same copy-write provisions as music or video. You have to get a license to perform a cover song live or a different one if you want to record and monetize it. Same for remaking or holding a public showing of a movie (even if you have an MC riff on it). Not surprising nor necessarily wrong that Nintendo wants to protect that. Journalistic reviews are exempt from that, but there's no way anyone is buying that LPs are anything but entertainment.

It is interesting to watch this play out from the sidelines and I suppose it will eventually end up in court at some point. Is playing in their sandbox using their assets while talking over it transformative enough to be considered a wholly different product? I doubt it, but I could see it going either way.

The tool/car thing you're talking about would be analogous to if Nintendo were going after people hacking SNES controllers to run on USB...which they're not...they're sticking to the IP copy-write realm.

saabstory | fixes bikes, breaks cars > themanwithsauce - has as many vehicles as job titles 01/30/2015 at 14:00

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I'm not sure if MCM is a clear parable. It's definitely possible that Let's Plays reduce the number of people who would otherwise purchase a brand new game, but I doubt that MCM reduces the number of new Nissans being purchased by featuring an old 240SX. I can understand why Nintendo is doing what they are, but I don't agree with what they're doing.

themanwithsauce - has as many vehicles as job titles > spanfucker retire bitch 01/30/2015 at 14:00

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Yeah their online system shows how poorly they understand this new fangled "inter-netting"

Doge_Supreme drives a BRZ > themanwithsauce - has as many vehicles as job titles 01/30/2015 at 14:02

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Pretty much. Same with exploit, and glitching videos for games. This seems to go against the first amendment a bit.

themanwithsauce - has as many vehicles as job titles > saabstory | fixes bikes, breaks cars 01/30/2015 at 14:05

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While it isn't 100% the same, do realize that this goes for ALL nintendo properties, new and used. So imagine if nintendo pulled people showing off pokemon blue on an old gameboy. That could theoretically happen now. And don't think nissan doesn't get licensing fees for letting toy and video game properties use its old cars like the 240SX, R32 skyline ,etc....So I'd say there are still some strong parallels here.

And if you see a let's play and decide to not buy the game because it looks unappealing then whose fault is that? Nintendo's, in my book. Make games people are happy to play and when they show off how fun they are, more people will buy them. Fire emblem: Awakening became a massive hit because of that sort of exposure and coverage. I bought it after seeing the reviews and gameplay and story discussions. Hell I bought a 3DS almost exclusively for that and bravely default.

spanfucker retire bitch > Takuro Spirit 01/30/2015 at 14:05

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They won't even let you put the game name in your video title.

That's false. You can use the game title all you want, just don't try and conflate yourself as being associated and/or speaking on behalf of Microsoft.

themanwithsauce - has as many vehicles as job titles > Doge_Supreme drives a BRZ 01/30/2015 at 14:06

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It doesn't go that far, it just says you can't make money off of this expression of opinion, in effect. If you don't monetize the video, you can do almost anything you want in terms of showing gameplay or expressing critical opinions of the game or company.

djmt1 > themanwithsauce - has as many vehicles as job titles 01/30/2015 at 14:10

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It won't set a precedent since what they are doing is straight up illegal since a play through of a game is considered transformative given that it is neigh on impossible to replicate the exact actions.

This whole partner bullshit is just a cowardly way to try and cover the fact up that they are regularly breaking fair use law but I have no doubt that dozens of Nintendo Fanbois will sign up regardless because their precious big N can do no wrong.

themanwithsauce - has as many vehicles as job titles > djmt1 01/30/2015 at 14:14

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Well here's the thing - no one has ever attempted to define this concept legally. Normally these shows are produced via huge networks and corproations who make deals and shake hands and whatnot. But for individuals? And those who use stuff thy bought as a consumer? In a store? It's new territory and if Nintendo is found to be in the legal right to do this, then that does set a precedent to be called back on and it will be that much harder to undo.

djmt1 > Takuro Spirit 01/30/2015 at 14:18

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Microsoft are doing what everyone has to do in order to protect their trademarks. You can put the name in the title of the video but you have to make it sure it can't be mistaken as something produced by Microsoft themselves.

For example a Turn 10 tribute video couldn't be called:

Turn 10: Team Forza

but it could be called

A tribute to Turn 10: Team Forza

It's just legalese to make sure no one gets sued.

djmt1 > themanwithsauce - has as many vehicles as job titles 01/30/2015 at 14:36

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In both the US and the EU Videogames are covered under copyright laws this means that they are considered to be in the same boat as movies and books regarding fair use. So while Nintendo can claim that showing cutscenes is breaking their copyright they can't say shit about gameplay. This has been shown by Nintendo themselves in what they are bringing copyright claims against namely music and cutscenes in their games, however this is an automated process on Youtube's part and doesn't acknowledge the context.

That context being the presenters reaction to what is going on in the cutscene. That there is what is transforming the content. More likely than not the viewer is there to see the reaction and hear the opinion of the presenter not view the actual content themselves.

Nintendo are in the wrong and have no legal right to this but like you said this involves individuals who simply don't have the resources to bring a case against Nintendo thus why the status quo remains in this horrible position.

RamblinRover Luxury-Yacht > themanwithsauce - has as many vehicles as job titles 01/30/2015 at 14:39

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That's shaky. What is offering a review of an item in a magazine (which runs ads) other than an indirect monetization by that logic? I'd argue that the fact that the media in each case is wholly different (video game to informative video or video game to article in print... or in video?) has a significant impact on relevance. One might raise the topic of substitution: a primary theoretical basis of any type of use (transformative or otherwise) weighed against copyright is whether it is substitutionary in any way. Now in some scenarios this is clear (direct musical copyright infringement a la Vanilla Ice - Ice Ice Baby is a song *theoretically* in competition with its source), while in others it's more murky.

In short, commentary and free speech issues have *nothing to do with* money *unless* there is substitutionary use for money. If people watch the Let's Play of a whole game expressly instead of buying the game, there *might* be an argument, but issues of substitution would weigh in even without the LP'er making money from it.

Loose ideas of things only being wrong if there's money involved (or the obverse - right if there's no money involved) contribute to a lot of really muddy logic.

themanwithsauce - has as many vehicles as job titles > djmt1 01/30/2015 at 14:50

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What's funny is the automated copyright bots will flag publically released trailers, spread around for everyone to share and whatnot BUT if you use more than half a second or so in a video, you can get copyright flagged.......for a mass released ADVERTISEMENT. THey will attempt to stop your video from being seen if you use their ad as part of a news reveal or something without their consent or whatever. And that's far spread in the industry now to flag anyone using anything relating to your IP. Soon there is going to be a bit of an upheaval or a mass exodus away form these companies' products.

Sam > spanfucker retire bitch 01/30/2015 at 14:58

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Watching other people play games isn't fun. - Reggie, explaining why the WiiU won't have Twitch integration.

Yeah, no one watches other people play games. It's so not fun.

Sam > djmt1 01/30/2015 at 15:00

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It isn't illegal yet. It will once PewDiePie or Rooster Teeth decide to make Nintendo videos. I see the case making it pretty far in the court system.

djmt1 > Sam 01/30/2015 at 15:02

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You mean like this.

Nintendo are only going after people they know won't fight back thus why the whole situation is so shitty.

Sam > djmt1 01/30/2015 at 15:07

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Copyright claims are typically automated. Thus it will probably proc on the big channels as well. Of course, it's easier for them to get the claims resolved, but still. One of the outcomes I see is networks (Polaris, Machining, etc) gaining a ton of channels and a lot more power.

djmt1 > Sam 01/30/2015 at 15:28

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Still nope. Angry Joe is one of Polaris' biggest partners and he also got hit and Nintendo refuse to release the claim. The system is automated but the publishers decide what gets hit. Most of them will release a claim but companies like Nintendo and Sega refuse to do so but unlike Sega who remain silent, Nintendo have come out and said that they consider all the revenue from Nintendo content on Youtube not produced by them actually belongs to them which it doesn't.

Redbulldidlo > Doge_Supreme drives a BRZ 01/30/2015 at 15:29

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No, it doesn't at all. People need to realize that the first amendment says the government can't stop you from saying what you want. Private companies are well within their rights to do so.