Nintendo Exchanges Goodwill For Control; Issues Mass Monetization Claims On Let's Play Videos

from the not-completely-about-the-Benjamins dept

Fri, May 17th 2013 1:34pm — Tim Cushing

Nintendo's history of aggressive IP enforcement is long and colorful and, occasionally, completely ridiculous. No one protects the brand quite as fiercely as Nintendo does, an unfortunate byproduct of its obsession with maintaining a clean, family-friendly image.

Its latest misadventure into "controlling all things Nintendo" was brought to our attention via a post to Reddit's r/games by a prolific creator of Let's Play videos, Zack Scott. For whatever reason, Nintendo is performing a "mass claiming" of Let's Play videos featuring its titles. Scott notes in his post that Machinima has seen these claims increasing exponentially recently, pointing towards this being an active move on Nintendo's part.

The speculation is now over. Nintendo has released a statement to Gamefront, which reads as follows.

As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.

For more information please visit http://www.youtube.com/yt/copyright/faq.html

A few observations on this statement:

1. In terms of the internet, the present will always be relegated to some distant point in the future for Nintendo. The fact that it took until three months ago for Nintendo to join forces with the world's largest video site is astounding. This is probably has something to do with Nintendo's recent shuttering of several Wii channels, many of which were underwhelming and ignored by a majority of its customers. (The "flagship" of the lineup -- the Nintendo channel -- was one of the worst, featuring haphazardly posted content that seemed to mistake throwing darts at a lineup for curation.)

2. Nintendo's self-consciously squeaky clean image? This IP grab is about that, too. Why else would a company that only recently decided YouTube might be a viable outlet use the phrase "shared... in appropriate and safe ways" to justify slapping ads on tons of pre-existing content uploaded by its customers and fans?

3. "...unlike other entertainment companies, we have chosen not to block people using our intellectual property." Good Guy Nintendo says No Blocking! While other "entertainment companies" have blocked thousands of videos, most video game companies don't. With the exception of Sega's promotional push for its new Shining Force title that took the form of widespread takedowns, most gaming companies take a more hands-off approach, realizing that Let's Play videos are a form of advertising that costs them nothing.

4. Nintendo passes the buck on its particular copyright "strategies" by directing readers to YouTube boilerplate. Weak.

Nintendo is well within their rights to monetize these videos and images. But, as anyone who's had experience with situations like this can tell you, being "within your rights" isn't the same thing as "right," either in the moral sense or in the "opposite of wrong" sense.

Nintendo can (and does) monetize gameplay videos using its IP. There are some valid arguments for fair use that can be applied here (Techdirt contributor E. Zachary Knight runs down a few over at Gamasutra), but when it comes to uploaders v. content companies, the algorithm tends to side with the YouTube partner and the registered content. Once Nintendo makes this monetization claim, there's very little the uploaders can do to fight it.

On the plus side, Nintendo isn't actually taking down videos. This means uploaders may lose the income (many uploaders have never attempted to monetize their uploads), but their accounts will remain strike-free. (Unfortunately, having several videos from the same account claimed by ContentID tends not to reflect well on the account holder and will probably be taken into consideration should other infringement issues arise.)

The money gained from applying pre-roll/post-roll ads to Let's Play videos is likely insignificant in terms of Nintendo's annual income. (It's certainly not going to make up for the WiiU's rather inauspicious debut.) Nintendo's past IP battles make this more about control than income. This also builds Nintendo a useful database of "offending" titles that it can easily block or take down by doing nothing more than changing its ContentID options.

Is the additional control worth it? If nothing else, it will be easier for Nintendo to control its online "representation" as its actions have decreased its customer base. Zack Scott, whose account contains dozens of Nintendo Let's Play videos, has already announced he will no longer be supporting the company.

I think filing claims against LPers is backwards. Video games aren’t like movies or TV. Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don’t need to see it again. When I see a game that someone else is playing, I want to play that game for myself! Sure, there may be some people who watch games rather than play them, but are those people even gamers?

My viewers watch my gameplay videos for three main reasons:

1. To hear my commentary/review.
2. To learn about the game and how to play certain parts.
3. To see how I handle and react to certain parts of the game.

Since I started my gaming channel, I’ve played a lot of 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.

There are many better ways Nintendo could have handled this (a monetization split with uploaders, an invitation to upload to Nintendo's official channel, DOING NOTHING...), but the company's antagonistic attitude towards anything it doesn't directly profit from made this situation one of the better outcomes, unfortunately.

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Filed Under: ads, contentid, copyright, let's play, monetization, video games
Companies: nintendo, youtube

39 Comments

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Anonymous Coward, 17 May 2013 @ 1:43pm

Oddly enough, right before reading this story, I just finished looking at a link on Reddit's front page that lead to this gem:

http://i.imgur.com/J0F1KYV.jpg

Apparently not all gaming companies share nintendo's views
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- reboog711 (profile), 17 May 2013 @ 2:40pm
  
  Re:
  Why would the gaming company have copyright on the video I create? It is, most likely, a derivative work.
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  - Anonymous Coward, 17 May 2013 @ 2:59pm
    
    Re: Re:
    They dont, but the LPer is in a precarious situation since his video is non-licensed use of the copyrightholders work. Whether it is fair use is a completely different issue and likely depends on the commentary, overlays and secondary recording of ie. face and/or controller of the Lp'er. The question remains, though, who is going to burn money in the court to find such a situation-specific copyrigt-curiosity? As long as the burden of proof is on the uploader, this is a censorship-tool.
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- Chronno S. Trigger (profile), 17 May 2013 @ 8:53pm
  
  Re:
  Does anyone know of anywhere on their site that says that? I've been keeping a list of gaming companies that allow monetization of gaming videos, but I want to have a page I can point at. The surprising one on the list is Blizzard Interactive.
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Tech42 (profile), 17 May 2013 @ 1:45pm

STOP IT!!
Please, please, stop saying "shutter" when you mean "close" or "shut".

It's becoming very annoying....
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- Anonymous Coward, 17 May 2013 @ 1:48pm
  
  Re: STOP IT!!
  "Shutter" as a verb is an accepted use. It means to "close the shutters".
  [ link to this | view in chronology ]
- Dark Helmet (profile), 17 May 2013 @ 1:59pm
  
  Re: STOP IT!!
  Are you not aware that "shutter" is a verb meaning to close or shut?
  [ link to this | view in chronology ]
- Anonymous Coward, 17 May 2013 @ 2:02pm
  
  Re: STOP IT!!
  Can't wait for the Techdirt readers to shutter this comment.
  [ link to this | view in chronology ]
  - Anonymous Coward, 17 May 2013 @ 10:17pm
    
    Re: Re: STOP IT!!
    Satan be gone!
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- TheLastCzarnian (profile), 17 May 2013 @ 2:33pm
  
  Re: STOP IT!!
  Shutter your pie-hole!
  
  Douglas Adams would be ashamed...
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- The Groove Tiger (profile), 18 May 2013 @ 11:45pm
  
  Re: STOP IT!!
  I was going to record a let's play but my camera's shut got stucked.
  [ link to this | view in chronology ]
Anonymous Coward, 17 May 2013 @ 1:45pm

For best performance in a supporting role by a game company...
Zack Scott makes an excellent point, as quoted above:

My viewers watch my gameplay videos for three main reasons:

1. To hear my commentary/review.
2. To learn about the game and how to play certain parts.
3. To see how I handle and react to certain parts of the game.

Nintendo's content is not the main attraction on YouTube, so why should they be the sole or primary beneficiaries of any advertising revenue?
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- AzureSky (profile), 19 May 2013 @ 1:33pm
  
  Re: For best performance in a supporting role by a game company...
  because they are Nintendo, and they need the money.
  [ link to this | view in chronology ]
Anonymous Coward, 17 May 2013 @ 2:10pm

If they mess with The Angry Video Game Nerd I'm going postal. :( "and no not that kind of postal so don't get any bright ideas FBI."
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- Mr. Lanious, 23 May 2013 @ 8:25pm
  
  Re:
  Well I guess you will be mailing a lot of packages if you don't mean the FBI type of Postal!
  [ link to this | view in chronology ]
Lon Seidman, 17 May 2013 @ 2:18pm

More contentID Abuse
Maybe they're going to use that revenue to make up for the flop that appears to be the Wii U.

While I get they have rights worth protecting, the fact they are protecting their IP by taking revenue away from hardworking YouTubers is on the level of the RIAA and MPAA's evil ways. This is certainly no way to build a fanbase and I am certain LPers will be more than happy to show their millions of viewers games from Sony and Microsoft instead.
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Anonymous Coward, 17 May 2013 @ 2:24pm

the thing that shows what most people think of Nintendo is the lack of interest in the few that used to now not bothering to even 'adapt' the games. the thing that was probably the decider was the lack of releases for the new Wii and that the majority of old Wii games are no good for the new Wii, if i remember correctly. they have had their day. most have lost interest in the company and what they put out. would probably been better if they just slid away into obscurity. doing this ridiculous stunt, just to piss people off has made them look more foolish
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Shadow Dragon (profile), 17 May 2013 @ 2:32pm

Funny that You Guys Metion this
There's one channel of LPers that I subscribe to Video Games Awesome,the Guy runs it was on Team Fortress yesterday mention that He had the same problems as Zach Scott (which I'm also subscribed to. It was alllmost 3 years ago that 2 other LPers had that same problems like that Chuggaconroy and NintendoCapriSun.
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Sheogorath (profile), 17 May 2013 @ 3:07pm

A silly idea
The idea is this: everybody makes mashups of images and footage games such as 'Eternal Darkness: Sanity's Requiem', all of the 'Resident Evil' series, basically just about any 15/M and above rated title you can think of. When Nintendo flags the vids, don't challenge even though it's clearly fair use, just hold your hands up and accept it. Once such a vid has Nintendo's ads all over it, it'll seem as though the company endorses its adult content to the casual viewer. That should screw up their 'squeaky clean, family friendly' image once and for all!
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- Sheogorath (profile), 17 May 2013 @ 6:35pm
  
  Re: A silly idea
  Further to my idea above, in case its not ads for Ninty that's on the vids, a user could put 'Monetized by Nintendo' after the title screen and a disclaimer denying connection to the company in the credits. That way, their logo could even be used on a vid, and because they're the only ones making money from it, users are in the clear.
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CK20XX, 17 May 2013 @ 3:36pm

I don't think Nintendo is wrong, but...
This is quite the gray area to me. Personally I don't have much beef with Nintendo doing this as they are not a company known for suing dead grandmothers like certain other organizations I could mention. They're nice enough that I don't mind doing certain things for them out of respect if not reason, and it isn't like this is an embarrassing fiasco on the level of Sega firing off takedown notices at every Shining Force video in existence.

But Nintendo is also known for being ham-handed and... well, stupid about certain things, especially darn near everything internet related. I'm afraid I have to agree that this move looks like them tripping over their feet in an effort to catch up with the times. Why not recruit the best LPers as a promotion squad and give them their own channel or something instead?

The backlash against all this is so remarkable to witness though that the main lesson I take away from this is that copyright law, for all intents and purposes, no longer exists. It doesn't matter what the written laws actually say anymore because certain other parties have spent so long ruining the reputation of copyright that the overall hatred of it is palpable, to the point that enforcing one's copyright for any reason is a suicidal maneuver.

This is something I've had to think long and hard about as an aspiring novelist. My feelings are kind of mixed, but if copyright is basically dead, then that at least gives me one less thing to fuss over so I can focus more on what I want to do: writing.
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- John Fenderson (profile), 17 May 2013 @ 3:58pm
  
  Re: I don't think Nintendo is wrong, but...
  Personally I don't have much beef with Nintendo doing this as they are not a company known for suing dead grandmothers like certain other organizations I could mention.
  
  So they get a pass because they could be worse? My, how our cultural standards have fallen!
  
  They're nice enough
  
  I don't think I have ever heard Nintendo referred to as "nice enough" before. "Nasty den of vipers," I've heard, mostly from the days when they were strongarming retailers and game developers. Remember, they got slapped down for their monopolistic practices back then.
  
  Still, they did stop doing their majorly evil things a while ago, so perhaps this is a redemption story: stop being unacceptably awful and eventually people will forgive.
  
  Are you listening EA, Apple, Microsoft, etc.?
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  - CK20XX, 17 May 2013 @ 4:27pm
    
    Re: Re: I don't think Nintendo is wrong, but...
    They usually don't care about what you do with their IPs, really. Just don't make porn of their characters and you're good.
    
    You're also forgetting that one of the reasons Nintendo was so strong-armed at first was because the NES launched after the Great Video Game Crash of 1983. Atari had just finished ruining everything for everyone with years of mismanagement and market saturation, so Nintendo did what they had to do in order to revive the industry and subsequently keep it from committing suicide. And it worked.
    
    That's the main reason they get a free pass, I suppose. They single-handedly saved the game industry way back when. That's not something EA, Apple, and Microsoft can boast.
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    - techflaws (profile), 17 May 2013 @ 10:23pm
      
      Re: Re: Re: I don't think Nintendo is wrong, but...
      That's the main reason they get a free pass
      
      The upcoming backlash doesn't look like a free pass to me.
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Becky (profile), 17 May 2013 @ 3:38pm

Since this will be retroactive how does that work? Will LPers suddenly owe YouTube money?
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- squall_seawave (profile), 17 May 2013 @ 4:32pm
  
  Re:
  i think it will be retroactive and instead of the earnings going to the player it will go to nintendo
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The Real Michael, 17 May 2013 @ 5:15pm

Technically, this move opens the door for Nintendo to potentially censor any videos it deems inappropriate, such as negative reviews of their games. The only thing for certain at this point is that this represents a power grab that wasn't needed.
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Nullify, 17 May 2013 @ 8:09pm

What this does is cut out the revenue stream of LPers
Certain channels on YT make quite a bit of money doing let's plays of games, with commentary. The way these channels sustain themselves is by placing ads at the beginning of the videos - the more people watch, the more money they make.

By claiming copyright on those videos, N is essentially taking away the chance for those channels to make money, thereby making it pointless to upload games created by this company, cos it's now a waste of time with no benefit.

So all N did here was severely limit its own grassroots ed potential, and it did it at the most inopportune time, too.
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- Pokemonlol, 22 May 2013 @ 10:59pm
  
  Re: What this does is cut out the revenue stream of LPers
  N's true goal is to free pokemon fool
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Anonymous Coward, 17 May 2013 @ 10:19pm

It's my opinion, but I kinda dislike it when LPers monetize their videos, even though a whole lot of them do. The whole point is to share your experience, not to get paid to play video games. Nintendo going for the advertisement grab isn't too bothersome IMO since they're not going to take down LPs apparently, the LPers that do it for enjoyment can continue to do so. If they want to profit, then they can simply LP non-Nintendo content.
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- Jay (profile), 18 May 2013 @ 6:10am
  
  Re:
  Why in God's name do you feel that Nintendo, a corporation with no amounts of resources on their own, should be able to destroy the livelihoods of people that either make game videos for a living or decide what games to play?
  
  Did Nintendo go their house and decide to play the game? Did they work to help these people create better content? Did Nintendo do any work on creating the videos and the unique experiences that people worked hours to achieve? Do they even need this money to produce more games since they've done quite well in doing so before now?
  
  Why should they feel so entitled to get paid off of other's work?
  
  It's absolutely amazing to me that anyone feels that Nintendo is in the right when we recognize that their position is going to make the public worse off. That's not the point of copyright in chilling free speech or allowing a company to feel entitled. It's supposed to act as a subsidy for more speech.
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techflaws (profile), 17 May 2013 @ 10:21pm

Nintendo is well within their rights to monetize these videos and images

Are they? I think this is questionable. Zach (presumably) has paid for the games he is recording. Why should Nintedo get to double-dip?
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Anonymous Coward, 18 May 2013 @ 2:31am

http://www.youtube.com/watch?v=6yX4io2O4EI TotalBiscuit (A popular youtube video game reviewer) Put up a well informed take on this.
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Anonymous Coward, 18 May 2013 @ 8:47am

I miss the concept of the first sale doctorine. once you have bought something, it is yours to do with as you please. use, dissassemble, refurbish, resell, monetize, whatever. if the game was bought and paid for, nintendo's right to forcefully monetize it has ended. they have been paid for that product and are entitled to nothing more.
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Bor, 19 May 2013 @ 9:42pm

So if I film....
So if I film a friendly baseball game, do the good people at Louisville Slugger have rights over the video? How about a Nerf Gun fight? Does Nerf get to monetize the video?
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Ninja (profile), 20 May 2013 @ 6:24am

Ah Nintendo.. Ironically the ONLY reason I bought their console was because I could easily squeeze shitloads of games in an HDD and play them at will (aka piracy). So far I've found one or two that would really be worthy buying but really... Nintendo. I'll not buy next console though. In fact I think I'm done with locked up consoles and server based DRM.
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- DCX2, 20 May 2013 @ 11:32am
  
  Re:
  There's a lot of Wii games worth buying.
  
  Twilight Princess is still amazing. Super Mario Galaxy 1 and 2. If you like Resident Evil 4, the Wii version is the absolute best version of all. Okami is pretty good on the Wii too. Tales of Symphonia: Dawn of the New World is an epic RPG.
  
  Basically, if you think there are no good Wii games, you just aren't looking.
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Dave jaCKSON, 22 May 2013 @ 5:58am

I don't get the leap from "Nintendo will put an ad on your video" to "Nintendo wantz al ur moniez!". Surely this is about youtube selling advertising space and not about grabbing $$$? maybe I missed something.
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