Nintendo recently decided to disallow Let's plays on the platform youtube. As early as 2013, it allegedly already wrote a warning to youtube channels showcasing nintendos content in those vidoes (for those who don't know: Let's play is a form of video format where a person plays through a video game, while giving eigther entertaining, educational, or funny comments), stating that it was infringing copyrights. Unless I am mistaken, legally Let's plays should fall under fair use as "review", since while the Let's player is showing the full game more or less, its his commentary/video feed that actually makes the Let's play. First, nintendo wanted to eigther take down all those videos, or take all the revenue those youtubers are making. Appearently they have now offered a deal for those people, taking "only" 40% of the revenue of all nintendo Let's plays. Now please correct me if Nintendos behaviour is legally correct, but as far as I am aware this should fall under fair use. See https://en.wikipedia.org/wiki/Let's_Play_%28video_gaming%29, under "Legal issues".

You mention that there's some money to be made here, so I'm pretty sure that clouds the legal battle. Again I'm no lawyer, I can't argue if it's legal or illegal in this case.

Second example that I am personally aware of would concern internet movie reviewers like the "Nostalgia Critic", who has received multiple copyright claims and had videos taken down, from big news company TMZ (which he parodied in one of his episodes), and from (relatively unknown) filmmaker "Tommy Wiseau" due to his review of the film "The room". This is the two examples I know of, but appearently those things happened more frequently. Again, correct me if I'm wrong, but aren't movie reviews/parodies supposed to be fair use?

YouTube is not the court. I don't think it's within YouTube's interest to mediate between the two parties. As YouTube, you have companies like Nintendo on one hand who's complaining to you that you are hosting contents that they think are illegal, and you have the other party complaining that it's fair use. What would you do as YouTube? Well, you don't want to show support of one but not the other, so it might as well just take the videos down.

You are free to host the videos, it's just that YouTube doesn't want to be involved in the legal battle. "You two settle this in court, I'm not involved". YouTube taking down videos does not mean it's legal or illegal, it's them washing their hands.

Frankly, I think the Let's Play situation was BS. How much content can be on a review video before it's considered copyright infringement anyway? Has anyone determined that? Showing 10 to even 30 seconds of anyone's game, show, movie, or book in a video review can't be not fair use? There has to be some sort of limit. I would think.

I think the current copyright laws are too restrictive and draconian. I think the duration needs to be seriously reduced. I think fair use should be expanded. I think there needs to be a "use it or lose it" rule, where copyright restrictions are not enforceable unless the owner is actively making the work available (in particular available in the region).

I believe every creative work borrows from what has gone before, and therefore there needs to be a balance between the right for an author to have control over their work versus enabling the next generation of works that will be based on it. For example, some extremely light Googling for "Terranigma" indicates that the central character is one "Ark", and that in the context of the game the character is clearly trying to draw on the "Noah's Ark" in Hebrew / Jewish mythology. I'm sure someone with more familiarity could find many more examples of ways this game was influenced by more recent culture.

So for me, I guess the question is "when", how long should a work remain the exclusive right of owner? That is a hard question. I think 20 years is plenty of time to reap the exclusive rewards from a work? I think most creative people don't milk just a single work forever, they are always creating new things.

It's not a grey area, it's a clear cut black area, it's not your IP but someone elses, you don't get to pick wether you should have a right to it, you don't. If you're not competing with a game they're making you're still competing with the Monopoly they should have to make such a game.

Thats the kind of attitude/reasoning I really don't like. "Its my property, and you cannot use it" - "Why?" - "Because its my propery and you cannot use it!". While you are not even wrong about how it functions that way, thats IMHO not a good thing. Need I remind you that companies are using the exact same "reasoning" to shut down (negative) reviews, caricarture, persiflage and what not... even though we have fair use to technically protect that. See, I can get behind the reasoning of companies/IPs taking indirect damage due to fan-fiction, but there should be some reasoning - everything else is, in my opinion, not really desirable.

What "attitude"? I don't care at all about this, i'm clearing that it's not a grey area at all legally, it's a very clear cut simple area that isn't grey but dark black with more black around and Inside and black vomiting from all it's holes, it has nothing to do with wether it's "right" or "morally acceptable" or if it "should happen", but it's DO is a very clearly defined area and not at all a "grey" area.

If you want it another way create your own IP and let others use it as you see fit but where you are missunderstanding is when you think YOU should have a say, people are free to do whatever they want with their property, wether it's nice or not is a whole different subject, but it do is theirs and wether you like it or not, your opinion on it is meaningless. You still can't do it. It just so happens they may not care, it doesn't make it a grey area, just like if you park on someone else's spot and they don't complain, you can keep doing it, odds are they don't care if they didn't complain, it doesn't make it "legal" at all, and it certainly shouldn't BECOME legal, they should damn well decide if they want you parking on THEIR spot or not, same thing here, they're free to decide wether you should be using THEIR creation.

Intellectual property has value, if you're using it without autorisation you are causing damage (at the very least the damage of devaluating their property by showing it can be used for free, it is why some companies who really don't care about hobbyists using their IP still go at them agressively, not defending your property makes it less defendable in court later on, basically if they don't tell you off when you're doing your fan fiction project, it's bad for them when they want to sue AAA Hollywood studio doing a movie on their IP who will claim it's undefended).

I think there needs to be a "use it or lose it" rule, where copyright restrictions are not enforceable unless the owner is actively making the work available (in particular available in the region).

That used to be the case in many regions. Some groups have attempted to restore some of that, but are always met with megacorp lobbyists.

It is always something difficult to balance. On the one hand, we all want to benefit from things we create. As game developers our IP rights are often our bread and butter. On the other hand, it is hard to see good products that die but are untouchable for the rest of our lives.

Common proposals are that copyrights need to be registered and renewed. Basically having a system where copyright is automatic for a small number of years (5, 10, 20, whatever) and then requires registration and renewal for the remainder of the term. This allows low-interest items to fall into public domain relatively quickly while still allowing high-value products to collect royalties for many years.

Trademark, however, has a different set of rules. While they can be renewed as long as they are in use, they expire fairly quickly, you get roughly five years for non-use before it is automatically cancelled (there are details involved), and trademarks must be renewed every decade when they are actively used. There are some very old trademarks in other countries, like the Twining's Tea trademark in the UK. Others like Shell Oil, Levi Strauss, General Electric, and Pabst Blue Ribbon are all over a century old and still in use.

YouTube is not the court. I don't think it's within YouTube's interest to mediate between the two parties.

This is what I got out of their dispute as well.

Fair use is an affirmative defense and it is very narrow, despite what many people on the Internet feel. In US law, the automatically protected uses of fair use are criticism, comment, news reporting, teaching, scholarship and research. Parody was added through court rulings, and the parody exception is extremely narrow. The court was very specific about the difference between parody, comedy, and satire. While comedy and satire might use parody, they are not subject to the parody exception unless they are actually parody. You must be using the thing in an exaggerated way to be making a commentary about the thing.

As an affirmative defense, it means you are admitting to violating copyright and then claiming you fit within the narrow exceptions laid out by law, currently stated as a four-prong defense. It is entirely up to the judge. If the judge decides you violated any of the four prongs, you have admitted to violating their protected rights.

As for the Let's Play situation, it wasn't YouTube blocking anything at all. YouTube did not claim copyright nor create the blocks; it was other parties claiming copyright and enforced through ContentID. The Let's Play people claimed it was fair. Various groups, including Nintendo and several music organizations, claimed it violated their IP. YouTube followed policy. YouTube's current policy is that in case of continued dispute that goes through counter-notifications or DMCA take-down, the content gets removed until both parties deal with out outside their system. It isn't that YouTube is blocking anything, instead following their policy that they are not a legal mediation service and their "safe harbor" provisions in the law mean if there is a dispute, the best action available is to remove the content until the other people resolve the dispute externally.

The thing I don't like about this kind of real-world analogies is that they don't really match. The reason I am not allowed to use your car in this example is that its a physical, unique objects, and by using it I physically take it away. This means that in the time I'm using it, you cannot use it yourself.

On the contrary, the analogy matches very well.

By publishing a story, you take away my freedom as original author to continue my story the way I want. Also, the "whole", the merchandise of a story/film/game is a very real thing with very real monetary (and thus, in the end physical) value. It's usually something which not just one person's existence depends on, too (but rather a hundred people).

As per frob's examples on Star Trek or Star Wars above: "they didn't want fan-created content to redirect the stories and plots that were being developed" -- that's just it. By publishing fan fiction, you are able to do that, and it is undesirable and possibly damaging.

Or take the example with George Lucas and porn. Let's say I'm writing an erotic novel about Han Solo and a male wookie, and let's say it's a pretty fun story, too, so more than just 5 people actually read it.

Do you really think Mr. Lucas shouldn't be concerned about the revenue for the next episode of his "PG13" rated (is it even "PG13", or just "PG"?) movie series? Shouldn't he worry about the various spin-offs like Lego or Clone Wars animated series targetted at children?

This can mean very real and serious consequences worth millions of revenue, and it is only natural that people will defend their work. It's not like it all just fell from the sky, they put in a lot of their time. (Well, admittedly, sometimes stories are pretty poor or just copies of the same ever-repeating scheme, but in general, creating a story/universe is not at all a trivial thing that you do in an afternoon. It's something you spend years of your life on.)

No, Mr. Lucas isn't going to end up homeless if he gets some 20 million of revenue less. But why should he not want that money?

Tom Sloper, on 31 Aug 2015 - 09:21 AM, said:

So, your question is "should we try to change the intellectual property laws"? Is that what you mean to discuss here?

Yes, though I would not formulate it that proactive. I don't really expect anyone to change that law, nor would I try myself. I wanted to hear arguments pro/contra towards the loosening of copyright-laws towards fan-fiction, kind of like fair use already does for different aspects.

But what's the point of arguing for/against changing the laws, if not to change the laws? "Yes, the laws should be changed but nobody'll ever change them so I'll just disobey them"? If the outcome of the discussion is "yeah, the laws are unfair to those of us who want to use others' IP," then why would you not start a lobbying effort or social campaign or something to get them changed?

Orymus3, on 31 Aug 2015 - 12:07 PM, said:

Case in point, the "Alpha footage" sentence has never ever prevented critics to say a game looked bad (though arguably, alpha is not art-complete, it's not even content complete, it's just feature complete).



So showing your game, which, given you don't have the same resources (financially, and human-resources-wise) might end up with a sub-standard quality to what they were hoping to achieve, or touch a message they didn't want to convey. This hurts the brand, whether you profit from it or not.

Well, you are already naming it - negative reviews can already damage the reputation of an IP, but those are excluded from copyright violation via fair use.

The key difference is that the product is initiated by the IP holder, as opposed to fan-fic. As a developer, I chose whether I risk doing something with a brand or not: reviewers are entitled to an opinion which may destroy my work, but it is a risk I willingly choose. However, I can't choose whether John Doe tries to do something fancy with my IP, and to me, this is where the key difference lies: having no control over one's creation is extremely dangerous.

No absolutely not fanfic games should not be legal without prior permission from the IP owner.

- Its free of any charge and/or profit for the producer.

It doesn't matter if its free. You could make a crap game which reflects badly on the IP owner thus costing them money. OR You could make an amazing game which will despite you acknowledging the original game become associated with you.

The thing I don't like about this kind of real-world analogies is that they don't really match. The reason I am not allowed to use your car in this example is that its a physical, unique objects, and by using it I physically take it away. This means that in the time I'm using it, you cannot use it yourself. There is a difference in IP, being that thoughts, ideas, stories, games etc... can coexist, so your example

Except by using somebody else IP you could devalue it by so much that it becomes worthless. Which makes it much worse than taking somebodies car because you can still give the car back and you probably wouldn't have affected its value.

There is also things to consider about how the IP is actually owned for example Sonic the Hedgehog is jointly owned by Sega US, Sega Japan and Sega Europe. It is entirely possible for Sega Japan to approve a licence for a game to be released in Asia but for Sega US to refuse the game in the US. Or for the game to be released worldwide but Sega Japan refuses to release the art assets for Europe or US so the art assets need to be recreated by a different set of artist to exactly match the originals (I'm speaking from experience). Also a company may own the IP but still be restricted with what they do with it for example I've worked at a company that owned the rights to use Tarzan however there is a covenant on the Tarzen licence that is very strict about how it is used.

Frankly, I think the Let's Play situation was BS. How much content can be on a review video before it's considered copyright infringement anyway? Has anyone determined that? Showing 10 to even 30 seconds of anyone's game, show, movie, or book in a video review can't be not fair use? There has to be some sort of limit. I would think.

Imagine you had a move like Star Wars that is 2 hours or more in length. How much is fair to show onscreen? 10 minutes? Okay, so let's say the law is "you can show 10 minutes for video works of art"
Now suppose someone makes a series of videos that are already short. Like most YouTube channels. That means people can take the entire video, and reproduce it (with ads at the side), with full legal protection. That doesn't benefit consumers or creators.

So we have to add more rules and complications, or else make it percentage based ("you can show up to 10%"of video works of art").

It also depends on what content is shown, so unfortunately a simple "x amount of time" can't clearly exist.

There was a lawsuit a while back where journalists were sued because they quoted the "heart" of the book. The book was basically (in the court's eyes, and probably in public's) a few paragraphs of importance, padded out by multiple chapters of filler just to have enough words to sell a book. (Which seems to be a common practice - many non-fiction books I read could be condensed onto a single page of insight, but which the authors expand out to enough to sell a book, making me waste my time reading an entire book to get just a few sentences of new knowledge. Sometimes the books are even free PDFs, but they still do this. )
Not all sentences are created equally. Not all frames of a video are created equally.

[...stuff I agree with...]

So for me, I guess the question is "when", how long should a work remain the exclusive right of owner? That is a hard question. I think 20 years is plenty of time to reap the exclusive rewards from a work? I think most creative people don't milk just a single work forever, they are always creating new things.

Twenty years is a good length that I've settled on myself in the past, but I feel like different forms of media need different lengths because of their different "economic life expediencies" (for lack of a better term).

Movies, for example, stick around for more than twenty years, with the average public still interested in them. Twenty or twenty-five years would be a good "cap" before they enter public domain.

Games, however, stick around for alot less. Currently, ten years seems like a more reasonable cap.

But when you start talking about franchises - say, the Harry Potter books, or the Mass Effect videogame series, or the Star Wars series, it seems like there needs to be additional rules (balanced against the need of the law to be simple for everyone to understand).

I don't think all rights should be lost at once. When a "universe" is created (and let's assume every work of art consists of its own universe), the right to create new works within that universe appears to me to naturally be a different right than the right to a sole monopoly of reproducing a specific work within that universe.

Harry Potter and the Sorcerer's Stone should exit "copyright" after, say, 10 years after publication. Anyone can then copy, sell, translate, or rewrite the book without problem.

However, the "Harry Potter" universe should remain closed to new works within that universe, at that author's sole discretion, for a slightly longer period of time. JK Rowling can continue writing the series for 25 years after the publication of the first book, even though the first book enters public domain after only 10 years.

After 25 years, JK Rowling can continue to write new books (each individually copyrighted for 10 years), but so can any other member of the public, even selling them (and having a 10 years copyright on that individual work).

After 25 years, "Harry Potter" becomes like the Matter of France (Charlemnge's cycle), the Matter of Britain (King Aurthor and the Knights of the Round Table), the Matter of Rome, the Matter of Troy (Illiad and the Oddessy and etc...), or the Romance of the Three Kingdoms (a 'Matter of China' if you will), and become public franchises available for all artists to work in.

At this late date, we should already have public access to a "Matter of Middle Earth", Peter Pan, and the Star Wars universe, for any developer to make games in those settings, or any filmmaker to make movies about, or any writer to write stories in, just as easily as a game maker can make a game set in King Arthur's world, or any moviemaker can make a Troy movie, or how Suikoden comes from Water Margin.