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marley on 08 April 2015
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torok said:
ihatefatkatz said:

Nintendo have not been censoring criticism. 

They have even stipulated that they won't reject application on opinion or views

https://r.ncp.nintendo.net/guide/

You are just finding issues that don't exist


That's naive. They can reject a negative video because of a technicality and just be more flexible with positive videos.

Despite that, a let's play video is fair use. Nintendo is just doing that because they know that YouTube usually takes any copyright notice, correct or not, seriously and gives one strike to the channel. They aren't even in their own legal right! They are just using the fear of being banned against YouTubers because they want to censor content about their games.

Imagine if everyone did that. Not only game companies, but film companies too. And if they did it with TV reviews too. "Oh, you were kind of harsh with Avengers 2, well your video can't be published because of rule A and B".

The fair use law contains elements that must be met:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

I think it would be hard to argue that let's play videos satisfy condition 3.  The art, sound, and story are lifted verbatim in their entirety from the games being shown.  Those are all owned by the copyright holder.  The only arguement in favor of fair use is that the gameplay is missing.  I'm not sure how well that would hold up in court and I think a lot of people are overly confident that it would be enough.