Are Let's Play Videos Illegal? | Game/Show | PBS Digital Studios
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- Опубликовано: 25 июл 2024
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"Let's Play" videos are GIGANTIC! The most subscribed to RUclipsr is a Let's Play channel, and Twitch.tv has built a whole site around livestreaming video games! It's apparent that everyone loves Let's Play, but there is something lurking that people aren't talking about… their legality. Are Let's Play videos… illegal? Join Jamin as he digs into this topic on this week's Game/Show!
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Hosted by Jamin Warren (@jaminwar)
See more on games and culture on his site: www.killscreendaily.com
Made by Kornhaber Brown (www.kornhaberbrown.com)
And regarding my glasses:
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IMHO, I think most people would agree that Lets Plays certainly should NOT be illegal.. To any reasonable person or even business, it shouldn't be a problem. If anything, they are a form of free advertizement, akin to word-of-mouth, and so they should be seen as purely beneficial to the product in question.
At this point, companies that oppose Lets Plays, are only hurting themselves.. If they're getting bad publicity from a Lets Play, then maybe their game just sucks, or they have bad business practices.. And in a free market, this is how bad things are weeded out.
Edit: And any company that tried to restrict people's Lets Plays to only their service (like xbox live), would get a rude awakening, to find out they get FAR less exposure on a single service, than they do if they let players post Lets Plays on youtube or wherever. So yeah.. bad idea..
Except there are a number of let's plays tearing down games and let's players who specialize in criticism which could cost them potential sales. The let's players also profit from the intellectual and physical property of other companies which is illegal unless under fair use which it usually, but not always, is. There's a lot more to be considered about this question besides "it shows people their game."
Chris Hawkins This same argument could be used for sites like IGN, Kotaku, and Gamespot that post unfavorable reviews. Should those reviews be taken down because they decrease sales and harm intellectual property?
First, ign, kotaku, and gamespot receive review copies of the game generally which provides direct consent of the company to post media related to it in exchange for profit. Secondly smaller websites and even kotaku and giant bomb have had reviews challenged by companies if they were too negative. Famously a reviewer panned Kane and Lynch 2 at giant bomb and because the company was buying ad space they pressured giant bomb to take action. The review was removed and the reviewer fired. It's not new for negative reviews to be stifled, look up the embargo on assassins Creed unity, so there's precedent.
Chris Hawkins But the ones criticizing the game are the ones that REALLY should stay. Criticism is one of the most important things to protect under fair use. There is no way a court should rule in the game company's favor in a case against criticism.
Chris Hawkins Their ethics is another subject for another time, perhaps.
However, if a company only decides to enforce copyright selectively against the Lets Plays that criticise them, then they will have a hard time arguing in court that it's not fair use.
I watch a good amount of LPers, and they seem to have a very open discussion with their community, often asking what the viewers would like to see, or what they should be talking about. And I always comment with the same thing.
Most viewers don't care about the medium, in other words, the game, the content, the decisions, people watch the person for their personality.
I can watch 100 different LPers cover Final Fantasy or Phoenix Wright, but I chose to watch a certain LP of that because it entertains me. I've played those games before, and it's nice seeing someone play FFVI blind, and them being affected as much as I was.
I like to think that's were the "original content" lies. It's not the game or the story lines, I can google a FAQ or some message board that lays out the plot and missions. I watch for the person.
Great point! Live communication with an audience might count as commentary.
PBS Game/Show Literally the biggest Let's players are really more like streamers, they just act themselves or (or not?) on camera and attaching it to something. Some let's players have even bridged the gap and have gone onto doing live action things for a better fan interaction, see markiplier?: P
Not to scare any video game publisher, but I've abstained myself from buying a number of video games thanks to Let's Play videos. After watching 30-50 hours of someone threading through the game, I usually feel as if I've already "done" that game (given how many hours I already invested in it) and no longer feel so compelled to buy it.
On the other hand, I've bought many games thanks *only* to the existence of certain LP videos, although in those cases, I usually don't finish the video series before rushing to buy the game.
So I think LP's have somewhat replaced to me what game _demos_ used to be like. A first taste onto a game you feel dubious as to buy or not.
so i had a group of student lawyers discuss the legality of lets plays that was last week i still don't have a answer from them as in they are still discussing
Show them the video! :)
Illegal? If not then Google, Nintendo and a bunch of other companies have some explaining to do
Peter Quill Nintendo are known for flagging videos with their games as copyrighted materials.
However in 2013, masses of gaming videos were flagged by various gaming companies and developers. The oddest thing was that most of the claims were not made by the companies in the first place. Google (who owns RUclips) have been called out by users for the way they manage copyright on RUclips that could lead to false copyright claims.
12 Bits In many cases, it wasn't the game that caused the Lets Play to be flagged, it was the copyrighted background music in the game.
This caused headaches for RUclipsrs as well as the game publishers who supported them.
12 Bits What Nintendo does is questionable at best because they will flag a video that is protected by fair use.
My argument would be that games are meant to be played. Watching a let's play is comparable to reading a complete plot summary of a movie, or even the lyrics to a song. You're getting a far lesser experience than you're supposed to, but so what? If you wish to have the games spoiled for you, as you're interested in the story, but not the gameplay, then no one should stop you. I have bought games such as I Have No Mouth and I Must Scream, and Speedrunners because of let's plays.
If gaming marketers were smart, they would endorse let's players, as it's a huge product placement. This would probably be better for the gaming scene as a whole, because companies would have to make their games meet a certain standard, as the quality of let's play videos are usually determined by how much the player is enjoying himself.
I agree with your premise that games are meant to be played, much as songs are to be listened to or movies to be watched, and an LP is simply a different experience. However I should point out for you that song lyrics and websites that host them HAVE been issued takedown notices and have gotten embroiled in legal troubles; the "unlicensed online publication of song lyrics" on websites which were mostly ad-supported has been a big issue the last couple years.
So although I think you're right theoretically, apparently sharing a work in a lesser fashion, especially when monetization/ad revenue is at stake, has legal precedent in favor of the copyright holder.
Jamin, I'd like to just say your show is one of my favorites. This is literally the only channel I watch on a consistent basis. Your comments and opinions are intriguing, and I love the amount of time you put into researching for each topic. Not to mention the fact I love talking about video games. Anyway, thanks for the shows and keep up the good work in 2015!
Oh my god. I don't know what's happening in the other side of the ocean, but here in Spain, there're people trying to ban radio in barber shops because of copyright (seriously). I can't invite a friend to my house to watch a movie or play a game because that's a violation of copyright... And he/she can even report me!! Seriuosly, allow me to say WTF!? What the hell is happening to some companies with the Copyright? I mean, I understand the mean of Intellectual property. If I write a book, I'm the only one that should make money from it (and that's not happening, by the way. Publishers make more money than I and they don't wrote ANYTHING but let's put that aside from now) but should I take to the court to a parent that decide to read my book to his/her son? Should I legally report anyone sharing my book with some friends? If a person reads my book and put that on RUclips, and makes a ton of money from that, then what I should do is call that person and make a deal. (You know, I make new stories, you read them and we share the benefit 50-50. I even prefer that than share the 90% of the money with some random publisher)
That's abusrd. All of this videos, all of that's let's play, are just bringing some friends to home and comment the game with some beers and a bag of chips. The internet allow that to make that world wide, but it's the same damn thing. I'm sure there're some persons that make that a way of living. There're persons that make poker a way of living, or chess, but that's only the 2% of poker or chess players. I don't think RUclips is a "gold mine" as some people say.
So, what's the damn problem? Well, personally I think Intellectual property laws ore ok. The bloody copyright is the problem. If there're not way of copying anything right, the the "copyright" is just stupid. Take that thing down, please and let us in peace, for god's sake.
Also, very nice video :)
You...can't invite friends over for a movie? That's happening over there?! That's literally the straw man argument that people use to support fair use. I'm sorry; that sounds really rough. I hope the Spanish government (and the American one at that, and any other country that decides to screw up copyright) can get it's act together and be fair to its citizens again.
does this affect local multiplayer? because inviting friends over to play is one of the intended uses of local multiplayer. Nintendo advertises this on TV.
In your video you made a really interesting point in regards to the whole "Artist using something existing to create something new. It reminded me of a comic made by Irv Novick I believe. Novick was an artist for DC Comics, and one of the panels he had made became famous when Liechtenstein made a version of it on canvas.
robot6.comicbookresources.com/wp-content/uploads/2012/05/HeroComics20122.jpg
"Roy got four million dolalrs for it. I got zero."
It later brings up a fund for veteran comic artists who are struggling to get by, but the point of the matter is that the original creator that Liechtenstein copied saw zero profit despite greater visibility. You may be asking what that has to do with this, but my roommate explained to me this christmas that he got his brother a Steam gift card and made some suggestions to games he should play. Each time his brother refused, stating that he had already watched a playthrough of it on youtube.
This could actually pose a big problem to some studios, most notably small indie teams. There are people who will have the experience on youtube and settle with that. I love watching game streams as much as the next (though more specifically competitive games), and appreciate players such as the people currently doing AGDQ and raising money for cancer research. But it feels that to some extent, developers are standing a chance of losing out, and that is worrisome.
Awesome comment! Signal boosting this.
Sedona Parnham its an interesting argument and is certainly true to some extent, in particular when it involves a complete lets play series.
There are only a couple of games that I have watched complete or extensive lets plays on and then bought the game. Watching these lets plays is either enough to satisfy my interest or enough to burn me out on the product. Whether I would have bought the game anyway though is debatable often the commentary or the personality is the product I am really interested in.
Sorry, I totally forgot to get back to this post. It was crunch time.
It's great to hear that you're compelled to play games through let's plays. I am curious to know how many will play and how many won't, but I do know that many people go in assuming they have seen all there is to see. Another friend of mine just had someone he knew play through PT. He watched online and claimed he knew exactly when something was going to happen... except if you know anything about PT, you know it's not linear and is affected by your breathing and heart rate. It scared the everloving piss out of him.
For me, I don't like most Let's play shows because I'd rather learn about the game myself. I think I spent enough time as a kid not being allowed to play video games that I'd rather experience it myself as opposed to watching someone else. Of course, that's my own personal stance on the subject.
I'm a third-year law student in Canada who actually wrote a 30-page paper on this very topic last semester. There are actually several layers to the problem of Let's Plays beyond simply whether or not they inherently infringe copyright, particularly in a world where people like PewDiePie make millions off them. For example, the question of whether a Let's Play infringes copyright could turn on whether it is considered a "commercial" use. Fair use (and its Canadian equivalent, fair dealing) gives more leeway to non-commercial uses - including charitable uses (you're welcome, Games Done Quick) - and treats commercial uses, like monetizing your RUclips videos, with more skepticism. In an even more extreme example, the most recent amendment to Canada's Copyright Act added a brand new exemption for "non-commercial user generated content" that seems tailor-made for Let's Play creators, but it ceases to apply the moment you start turning a profit instead of treating it solely as a hobby.
The fair use/fair dealing analysis also might turn on the specific content of the Let's Play. A Let's Play that gives comments about the game's design, for example, might be considered more "fair" than purely entertaining commentary because it more readily fits under the categories of criticism or review. But then again, fair use/fair dealing categories have proven to be quite flexible sometimes, such as iTunes-style song previews qualifying as "research" according to the Canadian Supreme Court in SOCAN v Bell (2012 SCC 36).
A particularly creative and/or gutsy lawyer might even argue the extent to which video games even have copyright that might be infringed. Unlike movies or songs, which are generally explicitly described in copyright legislation to be standalone "works", video games inhabit a kind of grey area where they are often defined as a "compilation" or a "collective work". In either case, video games' copyright derives from them being comprised of a collection of individually copyrighted works rather than a cohesive, unitary "work" like a film or sound recording. For example, the Super Mario Bros. movie is copyrighted by virtue of being a movie, but Super Mario 64 is copyrighted by virtue of being a collection of separately copyrightable elements like the setting, the storyline, the art style, the dialogue, and any number of other things that can each require their own copyright analysis. Different types of video games can therefore be classified as different types of works depending on their content (e.g. a text adventure vs. Metal Gear Solid), which may further affect the exact rights they have. Andy Ramos et al. have written a very interesting overview of different national approaches called "The Legal Status of Video Games", which you can download from WIPO's website as a PDF.
One related and potentially even thornier issue is what Let's Players can actually own. The Berne Convention, which is the primary international agreement on copyright, allows for derivative works to have copyright like anything else "without prejudice to the copyright in the original work". This is good, because this means that Let's Players can market their videos as independent works as long as they are either covered by copyright exemptions or tolerated by game developers (or explicitly licensed to create them, as is increasingly the case with indie developers seeking to increase exposure).
The issue then becomes whether Let's Plays are actually copyrightable. The standards vary significantly from country to country, even between the US, Canada, and the UK, but in general, a work cannot be copyrightable unless it shows some minimal level of creativity or originality and exists in a "fixed" form. By analogy with video recordings of sports games and associated commentary, Let's Plays generally meet this threshold.
However, a signature play style - or even the exact series of events that play out in a given Let's Play - will not be copyrightable according to these standards, meaning that others may mimic and re-create them with impunity as long as they don't straight-up repost the original video or infringe on other copyrighted aspects of it. Drawing on the same analogy as before, the actual playing of a sport has been consistently found to be uncopyrightable in the US and Canada because the action is entirely improvised and too unpredictable. Even a specific player's "signature moves" don't meet this threshold. (For an American example, see NBA v. Motorola (1997), 105 F. 3d 841 (2nd Circuit).) The vast majority of Let's Plays, being similarly unpredictable and improvisational, fall into this same kind of analysis.
(And if anyone is wondering about speed runs, I looked at those too. If every action in a speed run is sufficiently planned out, some very creative legal reasoning could make it copyrightable as a choreographic work, but it would likely still be denied copyright based on something called the merger doctrine, which prevents copyright where a given idea - beating Super Mario 64 really quickly, for instance - can only be expressed in a finite number of ways.)
Those comments aside, I generally agree with your conclusions, Jamin, and you touched on several of the same issues that my paper did. You and your team did an excellent job researching the issue and putting this episode together.
How does fair use apply when the material is from other countries, where the laws might be different?
I discussed this from an American context, but there's precedent elsewhere: en.wikipedia.org/wiki/Fair_use#Influence_internationally
Well, for one, RUclips is American-based, a lot of game companies tend to be American-based with very takedown notices coming from the Japanese home company, and then the majority of videomakers tend to be American or have really big American audiences
As far as I know if you affect a citizen or a company from another country you may be judge by the law of their country, not yours.
That's not really how it works as a Flordia man recently found out when he slandered a company in United Arab Emirates that he worked for which is illegal in the UAE. He was protected by US freedom of speech laws since he made the comment on Facebook in the U.S. but when he traveled back to the UAE he was arrested. One countries laws don't supersede another's but when your actually in another country you are indeed subject to their laws. If the man never left the U.S. the UAE wouldn't be able to do squat
Jamin, do you actually have lenses in those frames? I see light reflected from the glossy frames, but no reflection from lenses......
This falls under the spirit of the law v the letter of the law. American lawyers like making people believe that the letter of the law is what matters so they can manipulate it which is easier than manipulating the jury. They forget that the point of a jury is to vote when they feel the spirit of the law has been broken.
Copyright law was made to prevent cheap rip offs being made and taking from an innovators ability to profit and fund improvements and future innovation. The letter of the law is used to prevent anyone from innovating on an idea a company is milking for profit (this is enabled by the designed short life of products now enabling companies to continue to sell a product without needing to improve it).
There is more then "legal" or "illegal" on the spectrum. The copyright holder can also ask Google for a split of the ad-revenue on lets play videos. This would of course legalize those lets plays, but can make lets plays of that game non-profitable.
It's definitely within the spirit of the law to ban let's plays though, seeing someone play through a game can often be a substitute for playing the game itself. I know people who have decided against buying games like walking dead because they can just watch a let's play for free. That's more or less exactly the situation copyright exists to prevent. At least for artistic works.
***** For games like walking dead (VERY story driven games) I agree it can be harder to define a difference between watching the game and playing the game. with older games the difference is clear (watching doom is nothing like playing it) which I suppose makes it a larger problem as you can't set one blanket rule that covers all games.
***** Well I don't think that anyone would rather watch the video of a good game than play it, I think that they just saw the game and decided that they didn't want to play it at all.
regarding the comment about the Order, Letterbox can certainly be used for artistic purposes. Avengers Assemble often slips into a letterbox format in moments of tension and it's amazing. I barely notice it because it's used so well, but when I do notice it, I'm always like "wow, how is that such a good technique?"
Humans tend to narrow their eyes when concentrating, causing our visual field to narrow as well. Perhaps the visual effect of the letterbox mirrors this well enough to sort-of convince us that we are concentrating, and make us feel more engaged in the moment. This is pretty wild speculation, but similar effects have been demonstrated, such as people actually becoming happier simply by smiling consciously.
Thanks for the note!
I wonder if this means I could fight some of the copyright notices on my videos...
Fantastic episode! Great to see someone tackle the subject in a really informative and entertaining way. :)
Nope. There, I saved everyone about 8 minutes. LoL :P
Also, did you miss all those automated, RUclips take downs that have been going on? I can't even upload my vlog footage because almost all of it has some music in the background somewhere. I'm in poor standing because the RUclips attack bots found my fire pit video where I was listening to No More Tears by Ozzy on a freaking PSP in the background. Yet you can get a full length, HD version of the song just by doing a quick search right now. Whaaaaat???
You should read this:
support.google.com/youtube/answer/2797370?hl=en
PBS Game/Show Thanks for the link. I actually think I haven't seen that page before. The whole situation is very wishy washy to say the least.
When I say that there's some music in the background somewhere I mean, like, I'm talking to the camera and my sister is listening to something on the other end of the house. Most of the "background" music in my vlogs was so quiet or obscured I had no idea it was there. I even had one taken down where I was just humming a random, made up tune from my head while tapping my hands. The content id system told me it was a Nicki Manaj song. x_x
The only way I could possibly get any vlog footage with no music in the background would be to record it outside and maybe tie my hand behind my back. I live in a house full of musicians and music lovers. What can I say? :)
Also, I'm sorry for the crack about saving everyone eight minutes. LoL I couldn't resist.
tarrker I got a takedown notice for a video of my then 1 year old "dancing" (smiling and bouncing up and down) to Pump Up the Jam in a (about 20 second) clip where you could barely hear the music and it had people talking over it. COPYRIGHT VIOLATION!
+tarrker (cough) 13 (cough)
+tarrker Take-down notices are "guilty until proved innocent"
Props on the awesome discussion. And the big ass buster sword on the wall.
I think it's dumb that Activision is going after let's players that post glitch videos. If it's that much of a problem then make sure the product doesn't have major glitches like that and you won't have a problem. Negative criticism is just as important to developers as positive. Other wise theyre just going to keep making the same crap as before. It's fine that they wanna see us dollar signs but they still gotta remember that these dollar signs DO have standards and if those standards aren't met then they won't be seeing any dollar signs from us much longer. Plain and simple.
As a law student who just finished my IP class last semester - great video! The realm of "tolerated use" has been expanding ever since the advent of the internet and it is where Let's Plays will likely fall, provided that it remains the case that the game creators aren't economically harmed by Let's Plays - although you are right that as games become more cinematic and less interactive, this might become a problem. At first blush it always looks like a Let's Play is transformative because it includes commentary, reactions, etc., but another factor courts look at (granted, less now then previously), is how much of the original work the person claiming Fair Use has used. This could be a problem with cut-scene heavy games, as you mentioned.
Assuming for fun's sake though that they do violate copyright, RUclips and twitch would likely also be liable for contributory infringement because they benefitted economically from the infringement and actually promoted it. If ol' Pewdiepie ever got sued, I wouldn't be surprised to see Google's lawyers first on the scene.
I find it annoying that he has on glasses with no lenses.
Jaywalking isn't illegal in germany. There is no law prohibiting it.
Don't know where you heard that.
Only thing is when you cross the road and cause an accident you will be reponsible unless you cross the street at a green traffic light or crosswalk.
I was joking. :)
PBS Game/Show
Oh. I'm german, I don't get jokes.
*****
Normal jaywalking it not among the things listed.
*****
"Die Straße nicht auf dem kürzestem Weg/ohne Beachtung des Verkehrs/an dafür nicht vorgesehener Stelle überqueren mit Gefährdung"
=If you don't take the shortest way across the road and run around on the road, thats illegal. Just crossing it like a sane person is okay.
If you don't watch the traffic thats illegal, but if your careful its okay. (Meaning if you cause an accident your are responsible)
If there is a traffic light or cross walk nearby you have to use that.
If there is no traffic light or crosswalk and you cross the street while watching traffic its perfectly legal.
"Kraftfahrstraßen" are similar to the Autobahn. You aren't allowed to cross those. You also aren't allowed to ride a bike or a motorbike thats slower than 60km/h on a Kraftfahrstraße.
*****
Did you even read what its says? It says jaywalking is legal if there is no traffic light or crosswalk nearby and you are careful.
Thats not the case in the US.
Another good example of a transformative work, especially one more in line with let's plays, would be the a show made primarily with the Halo game series, Red vs. Blue by Rooster Teeth, which is a company that also does let's plays. (They have a whole branch and channel for them!)
Let's Plays originated on Something Awful back in 2006-2007 and was mostly screenshot based back then, but some people used video too. It was mostly to show off games, usually old games that people had never seen before or maybe never gotten all the way through. We had to perform a lot of legal battles to get people like PewDiePie a free pass with the law.
As a tip to anyone looking to become a 'Let Play' creator with monetized videos, contact the developer or publisher as best you can and ask about a licencing agreement. Large multi-channel networks can also sort this for you, with many of the big ones already having blanket agreements (Total Biscuit and Jim Sterling have spoken about this a lot).
This covers you for a ton of stuff, so sit down, have a look into it and it'll be a huge help further down the line.
"I am not a lawyer" I'm not sure what it was about how you said that, but I chuckled.
I don't understand fully on what you said, until you mentioned the part about MGS' cutscenes, and I suddenly understand it fully.
The politicians need to take a clear stance on this, and write it into law. I almost don't care how restrictive the law is. I just want all this to be clarified.
What you've got to consider here are the two most important questions, 'Are you making money off of this that could instead go to a starving corporation?' and 'Are you in any way showcasing the game as anything other than completely perfect and purchasable?'
lol, "starving corporation", "completely perfect".
The Austrian school of economics holds that intellectual property is a violation of real property rights as a right is an exclusive claim to something's use. If you own something, let's say a hard rive, then I have no right to tell you how you can and can not configure it.
The argument usually goes that no one could make money on intellectual works with out IP but the Mises Institute is a great example of how things work in reality. They sell a library of books about liberty and Austrian economics and several years ago they had a sudden decline in book sales. They found that some one was scanning and freely distributing the books online as PDFs. The Mises Institute is dedicated to Austrian economics so they do not believe in the legitimacy of intellectual property so what they did is get inspired; they started putting out free, digital versions of all of their books. They quickly saw a huge increase in physical book sales when they did that. Some where on the order of 4 times what they previously sold, if I remember correctly (It's been a couple years since I heard the story). There were probably several factors going in to that (including the sharp rise in interest in the Austrian school and libertarian thought in general in the last several years) but people did tell them that they read the books in PDF format and then bought them for quick reference later or to loan out to friends and family to spread the ideas.
Wow i tried to be funny then saw all the mean comments. Way to make a good impression lets play community. I for one appreciate all the valid infomation.
Any company that starts banning let's play videos deserves to be crucified and then abandoned by the fans. Game bugs CLEARLY fall under the fair use definition of reporting. One problem you DIDN'T cover is when games include music that is wholly owned by someone else, and sis merely licensed by the publisher. That's a really problematic grey area.
Just wanted to say that the shirt Jaman is wearing in this episode with the four different plaids is totally awesome. Plaid rules!
currently, let's plays are technically legal no mater what ethical argument anyone is making. If they include commentary on what is happening on screen then they are technically reviews, which can fairly use game footage.
Okay, there actually HAS been a lot of debate on whether or not let's plays are legal or not. Remember when youtube issued out it's new copyright infringement policy? That was a big deal. Lot's of Nintendo let's players got hit hard, tons of videos taken down, or monetary value taken away.
Thanks to let's plays, I have bought more games because reviews only show so much. Let's Plays lets me see ACTUAL gameplay to help me decide whether I want to buy a game or not.
With an Until Dawn let's play, I now want to buy it to play it myself. Even watching let's plays, you can watch how other people play and you might even find another way of how people play so you can learn something new.
So glad your back to making interesting videos again. This channel is like the vsause of video games
if a company enforces strict copyrights on a franchise they would simply alienate their community.
and I think they know this, which is probably why they tolerate some things.
also corrupt Activision is corrupt, attacking anyone who speaks ill of you or your product is the dictator way, and something far too many big companies are allowed to do, across most industries.
Great video, and something that's I've been pondering for a while. Nintendo certainly doesn't allow for the same level of "tolerated use" as it were, which provides a glimpse at the other side of the coin, and you could argue that their stance has in turn hurt sales.
One interesting notion is whether companies like Microsoft, Blizzard, etc. would someday seek to take a cut of the ad revenue generated on RUclips from these videos. Correct me if I'm wrong, but at the moment, all revenue is split between Google and the creators at the moment. But, since Let's Play videos make up the most viewed category, it's not unreasonable to assume that perhaps someday Microsoft might start asking for 5-10-15% cut of the revenue from every video. It wouldn't be terribly difficult for RUclips to automagically figure out which games are associated with the videos via video/audio recognition software. RUclips wouldn't need to block all this content. And creators would avoid potential legal battles. Oh, and those game companies would make mad bank (maybe). What do you think?
It was never a problem? NO - Nintendo did make take down request to RUclips/Google which they approved and executed and Mojang got asked if they would like to get a split on Ads revenues on lets play videos.
Not to forget: Music in games are made by musician (what a fact), but this means that they or rather their copyright collecting agency owns copyright on the audio. As the game makers usually do not buy the right for RUclips usages, that can be an issue as well, especially as Google implemented good algorithms for content matching.
Yep, Nintendo goes so far as to claim the coin noise. Nintendo claims all they can and has always fought. They even have gone after game tournaments.
Sometimes I wonder if Nintendo's reluctance to move from 2D to 3D is based on copyright too. A 2D sprite game is still 1:1 on the sprites. With 3D the resulting video doesn't much resemble what you sold the user.
www.theartofda.com/images/hum_enf_mal_head_8_d_512_FOR_SCREENSHOTS.jpg
You are not making an illegal copy of this as you play and this is not what you see in a video.
Great episode. It'll be interesting to see how this specific trend pans out, and the practice of tolerated use seems like a hopeful trend.
Based on the lecture you gave my college, Jamin, no.
Let's Plays are not illegal :P
The person playing the game is as much an experience as just playing the game.
I think watching a game doesn't substitute gaming itself, but there are games that I prefer having more expectating than agency, particularly the scary ones. But watching them on RUclips doesn't cut it for me. I still prefer to share a couch with Single Player and even help out on finding enemies and items, and help around. It's not completely expectating, but there is no full agency either.
totally agree! it's just a different type of experience with a game.
I did a paper on this for a cyber ethics class just this past semester.
What sword is that on the wall at the top???
Totally should do a meet up in Boston or New York, because I would definitely go
The way I think about it, since they are not giving the product in it's original form, a playable game, then they shouldn't be illegal.
That's essentially what I was told by the copyright lawyers I spoke to BUT as I alluded to in the video, "original form" may be more contingent on the type of game. So any cut-scene based game (say, Dragon's Lair) is more similar to it's Let's Play since there are narrative spoilers, but a game like Rust is likely off the hook because it's so different from person to person.
Well hopefully let's plays are never illegal. Otherwise things would be a lot more boring for me. I really enjoy doing them so if I wasn't allowed to do them anymore that would just be plain awful.
(IANAL)
One big point of contention - there's a difference between illegal and infringing, with the major difference being who prosecutes and who benefits. Illegal things are prosecuted by the government and the government is the one who collects restitution on behalf of the public. Infringing things are prosecuted by the aggrieved, and the aggrieved are typically the ones to benefit.
Because of this, Fair Use is always a defense and can only be used *after* a court case has began. This means that rights holders can, even in cases of obvious fair use (due to case law) create an undo burden on users merely by alleging infringement.
This means that if someone wants to disappear Let's Play videos, they just need a big enough war chest.
Second point - feel like the video missed the point about monetizing Let's Play videos. In 2014, Nintendo caused a fuss about the very topic and it's seems very cogent. gamasutra.com/view/news/192279/Nintendo_cracks_down_on_fanmade_videos.php
This show is like the best addiction! thanks!
I was looking for information if reading published materials like books and novel in your RUclips channel (making your own dedicated channel for it) is considered legal/illegal. I don't know if this also covers it or you might have done them in the past, but you my friend got a new subscriber. Thanks for the info.
There's a bunch of amazing communities forming around streaming games, and I feel like they deserve some agency in how they are allowed broadcast their play.
I'm thinking specifically of the Speedrunning community. Some of the best speedrunners have said that if they didn't have twitch chat to keep them interested in practicing a game (even when they stream themselves practicing), then they would have never put the time into mastering these games.
But isn't there a psychological cost to devoting hundreds of hours of practice into a game if your right to perform that skill for other people is in question?
It's a sobering thought that these speedrunning communities have to exist in the blurry margins of "tolerable use".
On a positive note, Awesome Games Done Quick is going on this week, and speedrunners are putting their passion for games towards a charitable cause. It seems like a few developers (indies, of course) are taking note. Some even called in to interact with the stream while their games were run (Battleblock Theater and Within a Deep Forest, last year Team Meat was on).
I hope more developers will start to encourage these emergent ways of playing and sharing games.
While I do think the legality of it all is still in a grey area. I think that once someone owns something, what they do with said material is up to the owner of the material. If I buy a game, that game is mine and how I use that is up to me. I can lend, share and record it as much as I please and it should never be an issue.
don't we already buy things we can't do whatever we want to, like houses and terrain, i think some contracts may prevent you from modifying some articles also, you may not be buying all the right to something i guess.
Lend and share can be forbidden by the therms of condition issued by steam, origin or "how ever you call the platform". For a console game of course lending and sharing the physical copy is legal, but for an MMORPG bought online and monthly fee, the therms of condition can and will forbid exactly that for good reason. Any thing in beth-when will be in beth-when those extremes. Ever read the terns of condition shown during installing software? Most of it would not stand long in curt, but some relevant points may will.
That issue was actually brought up when Nintendo acted on videos of their games. From what I've read, they've taken down videos of the Subspace Emissary mode of Super Smash Bros. Brawl, and no Nintendo game Let's Play can be monetized. Something along those lines.
Awesome video as always Jamin! This is by far one of the best video game web shows :)
great video and great Hair , always happy to see a video from you Jamin, thank you.
"Should let's play be Illegal?" ummmm... HELL NO!
What we have to remember here is that whether it's "good for business" for companies to allow Let's Plays or "free advertising" is irrelevant to the infringement and fair use analysis. We as consumers can argue all we want, but if a company has IP, they can always choose to protect it (barring fair use), even if it hurts them in the long run. Smart companies don't do that, but as we've seen before, not all companies are smart.
I have to wonder if the recent Aereo decision, where streaming a previously recorded show was held to be a public performance, will be the deciding factor. Obviously Let's Plays of video games are different than transmissions of DVR recordings, but I think there's enough room there for a circuit split.
I think a new law should form where the companies who make the game say whether they will allow third party videos to be uploaded to the internet or not by putting a little next to the copy right information, and if the company doesn't then videos can be made without the companies consent.
I really liked this episode, and content!
Let's Plays do definitely help the video game market, like the video said. In fact, I bought SEVERAL triple-A titles and indie games thanks to let's players. The Last of Us, Grand Theft Auto V, To The Moon, etc. Normally I watch let's plays of more expensive titles for the first few moments of the game. If I like the feel, I go ahead and put my money down. Same thing with indie games with procedural generation. I'm trying to get into let's plays myself, and I think I'll stick to procedural games like the video suggested. Though I think Skyrim would still be considered under the radar, seeing as how that's a game where you can go anywhere and do whatever you want even without following the major plot points. Plus the mods and glitches are amazing.
No, I don't think Let's Plays are illegal. They show the games from each player's unique perspective and that helps generate interest to a game.
An important thing to consider with LPs' legality is the volume of copyrightable elements that go into a video game. A game isn't just copyrighted as a whole; it's also copyrighted as the background music, the sound effects, the game design choices, the art used, the story, etc. So an LPer, though making commentary on some aspects of the game, may still have to take the video down because an element of the game /not/ subject to commentary in that particular video (the music, the art, etc.) is being used in violation of copyright and without a fair use defense.
I doubt anyone remembers this, but a few years back, Rockstar Games initiated a huge takedown on all Twitch.tv livestreamers playing the game "L.A. Noire" right after its release, which Twitch attempted to cooperate with. During this time, many streamers attempted to circumvent the ban, some even had their accounts disabled, while others tried to negotiate with moderator staff. Rockstar's reasoning for this was that viewers would no longer be inclined to purchase the game because the plot points would be exposed. This would be especially damaging for a single player, plot intensive game such as L.A. Noire.
*What does everyone else think? Does their view have some merit?* (I personally think they have a point, however I am also very childish in my views of businesses, and chose, alongside several friends, to exercise my right to refuse to purchase or play any Rockstar games in the future. Despite that immaturity on my part, I must admit I understand their feelings on the matter.)
I think a perfect example of something that would be valid for copyright strikes is "Movie versions" of cutscene/story based games. I have never played The Last of Us, but I've watched various movie versions enough that I got the full effect of the game without ever playing it.
However, it does mean that if and when The Last of Us 2 comes out, I will do everything in my power, buying a brand new PS4 and copy of the game if necessary, to play it. Very good way to advertise a product.
It wasn't that long ago that Nintendo tried to do something about people doing Let's Plays of their games. I don't think they out right tried to stop people from doing it but tried to charge people money for those videos. It didn't last very long and Nintendo backed off. I'm sure they realized the videos helped them more than they thought.
As a content creator myself, copyright is constantly something you have to be mindful of. Sure it doesn't make much sense for a publisher or developer to take down videos, but the simple fact that they could is kind of scary. If gameplay videos became non-monetizable (not a real word I know, just humor me) it would dramatically change the RUclips landscape. It could potentially cost RUclips a lot of money if overnight content creators suddenly had no incentive to make videos. I personally think let's plays are an excellent marketing platform but all you'd need is some out of touch, conservative CEO to ruin everything.
What's reality today may not be tomorrow and you can't always trust that the most logical outcome will prevail. Whether we think something should be legal is irrelevant because that's simply not how the law works.
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There should be more aggressive defense of glitch videos as critique. If Activision can take down a glitch video on the basis that it makes the game look bad and would hurt their revenue, what would stop them from using that precedent to take down negative reviews of their products? Or from anyone from doing that?
This video is awesome! Great work! Subscribed!
i don't like the argument that its "free advertisement", it just sounds like, i'm gonna sign you up for something without asking....
It certainly *can* be a form of promotion, but that's not a requirment. But that's the marketing justification from the rights holder's side. As a friend of mine marketing says, if someone else will talk about your product for free, that's a good thing.
Fair use laws protects lets plays (so long as the creator of the video has original content like commentary and whatnot). This point has been brought up numerous times during the "copyright id" incident in 2014. Many reviewers, lets players, or other content creators (such as tutorials, parodys, montoges, etc.) were outraged by the fact their content was taken down, and argued that it went against fair use. The funniest thing is that many people that went along with it (i.e. People hired by the companies that had the content taken down) said that since youtube was a privately owned website, fair use didnt effect it. Which makes absolutely no sense in my eyes. What? If i open a park, and let people do whatever they want in the park, but then ban black people in the park, i wont be effected by the law because its my park? Thats as rediculious as the boy scouts banning gays. . . Oh wait.
Fair use is a good argument. But: The copyright holder of the game can ask google for a split of the ad-revenues of lets play videos. This would of course legalize the lets play videos without any doubt, but it could make the lets play series of the youtuber non-profitable. This case would be more complicated then "legal" or "illegal", especially as in practice, RUclipsrs have to cooperate with Google as the provider of the platform. If in doubt, Google can ban accounts or freeze ad revenues until the case is decided by court. As this can ruin a channel, well: Most will cooperate.
"Fair use laws protects lets plays..."
No it doesn't. Fair use protects critics, journalists, and academic researchers, but not Lets Players.
Walkthroughs are a gray area, but Lets Plays clearly don't fit Fair Use.
BrotherAlpha commentary on lets plays may count as critique or just commentary, and as he said in the video, those are covered in fair use. Uploading videos of games with no voiceover or editing could be taken down though.
BrotherAlpha Commentary and critique are protected in Let's Plays. You just said critics were protected, which some LPers are.
XerxesTexasToast "You just said critics were protected, which some LPers are."
If someone does critique the video games as they play them, like Jim Sterling does, they they are critics, not Lets Players. Lets Players are people like Sea Nanners, who plays games with his friends and posts the videos without anything close to commentary or critique.
This is why we have networks. For example Machinama. They get rights for people in that network to use gameplay footage of a certain game. Some developers let you upload and monetize videos without having to be in a network. For example Minecraft.
now that I've thought about this more it also fits into legal use like how a movie critic going through a movie scene by scene
At 9:13 you mention dating tech becoming so advanced that it's just telling you who to be with, well there is actually a movie about that called timer. It's on Netflix if you want to watch it, and it's actually pretty good so I would recommend that you do.
Time should be reflected on current Copyright law.
Copyright law should never be reflected on the current time. Which is sadly how it currently is.
Which is why Assclowns like King can try to copyright the word candy, and draconian companies like nintendo can claim the work of lets players despite that their work has been altered under fair use.
This is why Copyright law is and will always be flawed.
We are living by rules based in the 40's, and not 2015.
If you truely think we should behold the copyright law as it came first, then why is it we have amended the constitution of the united states an additional 17 times since its release? Are you going to argue that slavery and womens were not as important? If not, then you cannot by any principle stand by what copyright law is doing to the world. It needs to be changed to reflect the times.
I knew (correct me if I'm wrong) that RUclipsrs could sign contracts with partners like Machinima so they get the rights to make let's play videos about X and Y videogame. If they didn't have this partnership they couldn't do it. The partners are the ones that take care of all the legal stuff with videogame companies so youtubers can make their videos (of course only about games that are approved by their partner).
I like them. They help me decide if I want to buy a game sometimes. But mostly I use them to get better at games. I watch someone who is better than me, and see how I can maybe get better. Get ideas on what I might be doing wrong or what I am missing.
as someone's performing with something, a video game, a music instrument, or any other tools, they're creating "something else", and the final results, called performance, art or else, its different, its "more",... its a unique product and therefore, legal!!
So on the aspect of commentary; I'm the sort of person who is interested in taking analogies to logical extremes. The episode started out describing how taking a grainy iPhone video of Furst and Farious is copyright infringement. But, what would happen if you *edited* an episode of Attack On Full Metal NarutoPiece, essentially just having voice clips / webcam shots showing your mild reaction to the show - maybe even just a grand total of three "Oh wow"s over a one-hour episode. Could that still be called a transformative work? If not, where would the line draw?
I guess it's not really news that "Fair Use" is super-subjective and needs to be handled by case, though.
Can we just talk about the thumbnail of this video for a second?
........
It is absolutely delicious.
People have asked this question though. Like two years ago when companies actually DID crack down on LP. For instance there was Nintendo claiming ALL ad revenue on LP videos of their games, and there was Sega removing ANYTHING with the phrase "Shining Force III" in the title, whether it was gameplay or not.
You can make a case for LP being a transformative work but under their copyright, the publisher owns all footage legally, no matter what is happening in it, so LP generally exists under the sufferance or graces of the publishers, it is worth noting that Nintendo never actually pulled any videos.
As for the COD bug videos being pulled, that kind of behaviour is an abuse of RUclips's copyright policy. Citing copyright as a method of censorship has been pulled rather frequently by indie developers with poor games and it has ultimately ruined their reputation and business. Activision can only get away with it because they have the money to back up their claims and would likely win, which in my opinion is a more gross abuse of the system.
Maybe if they don't want people showing game breaking bugs in COD they should release a more polished product instead of brushing valid criticisms under the rug. Especially when the game in question is an annualised series that people are quickly, and notably, becoming burnt out on.
"no one's asked yet" only, you know, people talk about it all the time, and there are any NUMBER of DMCA take down notices that have been filed on youtube by, as a large example, nintendo.
So by "no one's asked yet" you mean...people are having hot debates about this subject every single day?
I spoke to two different copyright lawyers at Harvard and University of Maryland and they both told me there's NO case law for this. So in my case, "no one" refers to American judicial system who ultimately will dictate the legality of Let's Plays. But as I said in the video, it may never come to that so I was interested in exploring the question based on conversations with experts.
But that doesn't mean, it hasn't been an active conversation in LP community. I just wanted to bring some new voices to the table.
PBS Game/Show
You covered that, in your video. But there is a significant, notable difference between "There has been no lawsuit on this subject" and "no one is talking about it".
Acting like lawyers are essential to a conversation to make it "real" doesn't bring new voices to the table, it points out that, as yet, no one who isn't a major company who's fired a DMCA take down notice has a lawyer capable of handling the "conversation" at federal legal levels.
And it detracts from the very real conversation that, again, occurs on a nearly daily basis.
PBS Game/Show
But isn't it more than a conversation when companies like Nintendo and Activision/Ubisoft have taken action on them?
I hope you do a meetup in Massachusetts!
A related type of video that's not an LP is the game- movie. Bioshock: Infinite a month after it's release was lovingly cut and edited into a long feature length movie. There was no commentary, there was thoughtful use of the game's camera to capture certain moments and nice transitions. This really did by intent capture the essence of that game. I showed it to my Dad who doesn't play games and it captured the whole experience pretty darn well.
A visual media presenting unedited footage of a different visual media. It doesn't sound like a derivative work does it?
I show up YEAH, it my first time ever in one of these.
Thank you persona 5
To me, there is basically two camps of companies out there: The ones who are concerned about LP's and the ones who welcome it. Here's why: Say company A makes a game that has a wonderful and unique story, and for the game to function it is IMPERATIVE to the person playing it that they haven't played it before because once they experienced the epic storyline, the replay value goes down. If a popular let's player on YT plays through the game for a massive audience, there might be many potential buyers of the game who then say "Okay, I experienced the story, no real need for me to go through it again myself." I can understand that concern.
Company B makes a multiplayer game with basically infinite replay value. For example: League of Legends or Minecraft. Here the PLAYERS mostly provide the content and the game only acts as platform for these things to happen. Company B would actually *want* to have as much people see others play it because, in contrary to company A, it would increase the chances of others buying the game.
Nintendo have contended it (with takedowns and their upcoming profit share licensing agreement), just not in court. Because Google & Amazon will remove content without a court case (and host most of this form of content), it'll be unlikely that this goes to court until a big player is creating Let's Play content (Rooster Teeth already showed they'll license rather than fight copyright, for example of a larger small player).
On the wider point of copyright, and relevant to all content creators: how much did you pay to the designer of you glasses for "reproducing" them in this video? The designer of the shirt (pattern or actual design)? What about Nintendo, Microsoft, and Sony (whose copyrighted content, controllers, you have on the wall behind you - with dates to make it very clear those copyright have not expired) - how much have you paid them to do so? When a game is a "set" on which a new movie is being created then it seems to be an area where we must consider the creation of new art to come above the rights of those whose work is being used, incidentally, in the production.
Woah woah woah, if Tinder is like a game, then does that mean everyone on Tinder is a gamer? That is where I draw the line haha
I have to agree with most people that Let's Plays are free advertising. It's been critical in the development of the indie game scene as of late.
Kickstarter: Free funding
Steam Greenlight: Free publishing
Let's Plays: Free advertising
It still freaks me out, When you say my name. Makes my heart skip a beat. It's so weird watching your videos xD.
Great episode.
2:30 hold up you can't say that people not buying a game because they see how glitchy or bad it is, is a legal corse to sue the let's player, it's the company's job to satisfy the wants of the consumers hiding a error or poorly made part from media is a disservice and people will not buy from a company that's so irresponsible.
I think in the end it will just fall into "Tolerated Use." Like how Japan's manga publishers and artist allow (even encouraged) people to sell fan comics of their characters, even in legal comic conventions.
Depending on the style of game, often the biggest issue is the transformative degree to which the let's play occur under. I've got a Brony friend who I love to watch him play let's plays, but he's particularly cautious on story based games to parody the storyline intentionally transforming the storyline so that he doesn't infringe upon the copyrights.
Basically he either skips or voice overs characters during cut scenes. Very comically and intelligently mind you. My current favorite is his use of Mech Warrior 4 to explain the problematic issues in our current capitalistic society
You can also see many Lets Play Videos as a kind of journalism which makes it legal to show footage I think...
I'll admit here that my info is a little dated so it could be wrong but I found it interested that there was no mention of the companies who put restrictions on their games when it comes to videos. I know that when it comes to Final Fantasy XIV, or in the case when the game came out a little over a year ago, that you could not make any money on the videos you made with the game be it information, guides, or lets plays. Also if I'm not mistaken Nintendo doesn't allow you to make any money on videos with their first party games. Like I said though my info is a little dated so things may have changed, all in all though I really enjoyed the video. :D
Does it make any difference if the let’s play is profit or nonprofit based?
The host's glasses have no lens! It's fake!
I always wonder about Text adventure games given the style. You can watch them like movies when they have no replay value like phoenix wright. It does help as a test for good writing if you want a physical (Or one in your account) copy of the game yourself.
I doubt youtube, the main source of Let's Play videos, would let that happen in the first place. I mean think of all the ad revenue google would lose? Seems like a big waste of everyone's time and money to fight it. I know Nintendo did something like that recently, and didn't allow Monetization on their content. That didn't help anyone in the end though, and now they are allowed monetization again. Money makes the world go round after all.
But it may not be up to RUclips. They're covered by the DMCA, but the copyright holders can do as they like.