My Defense to Nintendo's Youtube Policy

[ToraTiger]

Nuvendil said:
Whether you get the point or not is irrelevant. Commentary is one of the things covered under fair use doctrine. Let's Plays are further shored up by nature of being inherently transformative (LPs are videos, not video games). Appropriately edited let's plays with an emphasis on player commentary and interactions are textbook fair use. It's not the same as a movie being aired on television. That is neither transformative nor falls under fair use. But if I were to do a documentary or analytical commentary making use of large clips of that film and aired it on TV, I would not have to worry at all about copyrighted content as those fall under fair use. I may have to navigate some trademark issues, but even that is unlikely due to the very specific nature of trademark law. Nintendo is in the wrong here, definitely in Joe's case. Now if a guy uploads a video with no commentary that is literally the core content/main story of a story driven game from start to finish, then you have an argument. But Joe's vids weren't that, not even remotely close. He followed all the guidelines of fair use and clearly did not use the content in such a manner as to have his vids constitute a substitute for the actual games. In short, Nintendo is in the wrong, not Joe.

You're showing someone's content, and as such you would have to either a.) Make lets plays without video footage and sound which no one would watch or B.) get approval to use said content.  Only way it would be fair use is if they did not make ad reveune or at least, not pocket it the way that youtubers do.  This is obvious, any one who's taken one law class would know.  Which is why Nintendo will always have the last say in where the profits go and ultimately decides whether or not the video is allowed for that purpose.

So Joe is so not in the wrong, his videos get fairly deleted?  Meaning, end of the day Nintendo has the final say in using their product for money.  Which in a way Joe's videos are a product, since he makes profit from them just like any other product.