vivster said:
It's not a policy, just a tool that youtube provides. But it's just a bad implementation in that people who claim content have all the power and are not reprimanded even if they falsely claim content, while people who got struck get nothing to reimburse them. Let's plays are debatable. The most popular streamers are being watched not because of the games they're playing but because people like to watch them and listen to their comments and opinions. Which means they create their own transitive content from gaming content. Especially if you consider that the actions the players take are not pre programmed by the game devs and are in itself newly created content not by the game developers but by the streamer. This is unique to games and not other media which is why the laws haven't kept up yet. For example I would argue that making a video that only contains ingame cutscenes without player input are copyright infringement. Because the video creator does not create anything. Let's Plays are a whole lot more though. But let's Plays aside, Nintendo is also claiming clips in critiques and tiny video snippets used in montages which is definitely under fair use. That's what it's about. |
Youtube does need to clean up the application and prevent misuse (ie claiming copyright on critiques or parodies), but I would say that Let's Plays are not debatable. As mentioned in my example before, fans are there primarily for the commentators in a work like MST3K however they still have to pay for the original footage that they use. And given that any action in a game is one that the programmers have already designed and implemented, that does not making playing the game a transformative work. If you wish to montize Nintendo's footage/programing then regardless of the presence/absence of commentary on it, then Nintendo is owed a cut.
Nonprofit videos are a bit tricker as they can be used to promote a commenter's 'brand' and make them money indirectly, or they can be just for fun. Those videos are debatable and would probably need to be handled on a case-by-case basis.
