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All Your Nintendo Let's Plays Are Belong To Nintendo?
by Greg Lastowka on 05/17/13 12:26:00 am   Expert Blogs   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

 

Yesterday, Gamasutra and other news sources reported on Nintendo's claiming YouTube ad revenues for videos featuring gameplay footage.  Nintendo explained that "for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips."  Apparently, in practice, what this means is that certain YouTubers who were monetizing extended Nintendo gameplay videos will now lose their advertising income stream.  Instead, YouTube will share those revenues with Nintendo.

If you worked to create a video channel and a YouTube subscriber base only to have Nintendo grab your ad revenues, would you be happy about this?  No, you wouldn't.  Zack Scott, a YouTuber with over 200K subscribers, isn't happy.  On his Facebook page, he explains (to a growing chorus of over 8K "likes") that he's giving up on making any more Let's Play videos for Nintendo games: "I love Nintendo, so I’ve included their games in my line-up. But until their claims are straightened out, I won’t be playing their games. I won’t because it jeopardizes my channel’s copyright standing and the livelihood of all LPers."

As Gamasutra reports, other LPers (Let's Play creators) are upset too.  But the claim they make isn't just that they're being deprived of their livelihood.  They also complain, like Scott, that Nintendo is betraying its "fans" and shooting itself in the foot.  A common theme is that Let's Play videos provide "advertising" for Nintendo, building interest in their games and helping to sustain the community of enthusiasts.  (In a similar vein, see this article on game modding by Hector Postigo.)  To put it simply, if Nintendo cuts off Zack Scott's income stream and Scott stops making walkthroughs of Nintendo games, it's Nintendo that loses.

So why would Nintendo shoot itself in the foot?  The answer can be summed up in two words: intellectual property. 

As a co-director of the Rutgers Institute for Information Policy and Law, my day job is teaching and researching how intellectual property law applies to new technologies.  I also have a particular affection for the law and business of video games.  So I'm going to break the IP issues here down, as briskly as I'm able, in four component steps: 1) YouTube, 2) copyright, 3) trademark, and 4) IP policy.

1. YouTube

First off, I think it's interesting that much of the media coverage of this situation is simply pitting the Let's Play creators against Nintendo.  This conveniently lets the technological behemoth that is YouTube float in the background in soft focus.  But YouTube should really be front and center in this dispute.  Consider: YouTube created the various "livelihoods" at stake by starting its Partner Program; YouTube orchestrates and directly profits from the advertising monetization of Let's Play videos; it is YouTube's Content ID technology that is helping Nintendo to locate gameplay videos; and finally, Nintendo could never have usurped Zack Scott's ad revenue streams if YouTube didn't enable that action.  YouTube is smack in the middle of this dispute, and it is playing on both sides of the field.

But, in a way, that's a legally mandated position for YouTube, if YouTube wants to stay in the good graces of the copyright regime.  From the standpoint of intellectual property law, YouTube's actions as an intermediary are primarily governed by the rules of the Digital Millenium Copyright Act, and 17 U.S.C. 512(c) in particular.  As an online "service provider" under that statute, YouTube can be shielded from liability for the copyright infringements of its users, but only so long as it complies with the "notice and takedown" requirements of the statute.  This means that when a copyright holder informs YouTube that a particular video infringes its rights, YouTube must "expeditiously" disable public access to that content.  YouTube must also comply with many other requirements of Section 512.  For instance, it must terminate account holders who are repeat infringers and must accomodate "standard technical measures" that relate to copyright policing.

So, essentially, in order to benefit from the "safe harbor" of Section 512, YouTube is required by law to play nice with the copyright industries.  Apparently, in this case, YouTube has made the decision that playing nice means that Nintendo, not Zack Scott, is the rightful owner of the advertising revenues that are generated by Zack Scott's Let's Play videos.  As YouTube states in its monetization policy, "Videos simply showing game play for extended periods of time may not be accepted for monetization." 

So YouTube owns its platform and it can run the platform as it sees fit.  But is giving Nintendo the advertising revenue stream here the right call as a matter of copyright law?  That's a tricky question.

2. Copyright

Among the general public, copyright law is an increasingly familiar concept.  Still, that doesn't make copyright "ownership" any less weird as a theoretical matter.  We know what it means to own a physical item, but when we say Nintendo "owns" fictional characters such as Mario, Toad, and Princess Peach, what does that mean? 

From the standpoint of copyright law, "ownership" means that Nintendo has the exclusive right to reproduce and distribute copies of the many works that incorporate those particular characters.  Nintendo also hold the exclusive rights to adapt those works into new forms of media and to "perform" those works publicly.  You can find these and other exclusive rights (there are six in total) in the copyright statute at 17 U.S.C. 106.  In theory, a Let's Play video could infringe upon several of those rights.  The uploaded videos (arguably) reproduce Nintendo's work, perform it publicly, distribute it, and may even create a "derivative work" based on it.

But does that mean that all unauthorized uses of recognizable Nintendo works on YouTube are always infringing?  No.  Indeed, it's notable that, in its statement, Nintendo referred to "Nintendo-owned content, such as images or audio of a certain length."  That's a curious qualification for Nintendo to make as the copyright holder -- why "of a certain length"?  I think Nintendo is probably admitting that short clips of gameplay footage, when used in the context of commentary or criticism, are not subject to Nintendo's exclusive control.  This is because the copyright statute, at 17 USC 107, makes it clear that the public has a right to "fair use" of copyright-protected works.  This means that, without Nintendo's authorization, the public, in certain circumstances, is entitled to use Mario, Toad, and Princess Peach "for purposes such as criticism, comment, news reporting, teaching..., scholarship, or research."

So doesn't that apply directly to Zack Scott?  Isn't a Let's Play video a form of commentary or criticism under Section 107?  Maybe it's even a form of "news reporting" or "teaching"? 

Perhaps, but the case law on fair use makes it clear that not all uses of a work in "commentary, criticism, news reporting", etc., will be fair use.  It's certainly possible to use a work and comment upon it, yet to use too much of the work and thereby exceed the protections of the fair use doctrine.  For instance, I could not republish the entire first Harry Potter book with a few additional comments added, and claim that act of reproduction as a legal fair use.  It may be that Nintendo believes game play videos "of a certain length" will be categorically outside the bounds of fair use and should be exclusively within its control.

Nintendo may believe that, but I'm not so sure.  As Zack Scott puts it: "Video games aren't like movies or TV. Each play-through is a unique audiovisual experience." I think that's just right -- the peformance of a video game is something different than a clip from a movie.  It could be argued that footage of original and creative game play -- even extended footage of creative game play -- constitutes a form of "transformative fair use" under copyright law.  A very recent case in the Second Circuit, Cariou v. Prince, might be understood to support this argument.  Following that case, if the aesthetic appeal of a Let's Play video is perceived as fundamentally different than the appeal of the interactive game, fair use might actually exist.

I'm hardly certain that the average federal court would accept that argument, but I do know that such evolutionary twists and turns are common in the law of fair use, which is notoriously unpredictable.  Indeed, I think part of what may be motivating Nintendo's move here is the concern that the unauthorized monetization of gameplay video performance is rapidly becoming the "new normal."  Nintendo may be concerned that if it doesn't assert its copyright interests, courts will ultimately start to accept the practice of monetizing unauthorized game play footage as a conventional form of fair use.  And that sort of rule could have significant repercussions for the emerging North American pro-gaming scene.  (As a point of comparison, see, e.g., T.L. Taylor's discussion of Blizzard's dispute with KeSPA in her new book.)

3. Trademark

Although copyright is the IP language being used by all the parties here, it's worth pointing out that Nintendo's IP rights aren't limited to copyright: Nintendo also claims trademark rights in Mario, Toad, Princess Peach, etc.  (The "Princess Peach" trademark is at Reg. Serial No. 85,497,172, if you want to look it up.)  In theory, trademark law is narrower in scope than copyright law.  Trademark is intended to protect consumers from being deceived about the source of the goods and services they find in the marketplace.  And personally, I don't think most people watching a Let's Play video featuring a Nintendo game are going to be confused about the origin of the video.  In other words, I doubt anyone would presume Zack Scott's videos are the works of an employee working for Nintendo.

However, in recent years, some trademark owners have become much more aggressive about their IP rights.  Some have sued, for instance, filmmakers who make humorous references to their products without authorization.  Statutory expansions in the legal protection of brands, such as the Trademark Dilution Revision Act, may apply to famous video game characters, such as Mario and Luigi.  For better or for worse, many trademark owners feel legally obliged to actively police against unauthorized commercial uses of their brands.  This means that concerns about Nintendo's trademark interests, as well as its copyright interests, may explain Nintendo's efforts to limit the emerging business models of Let's Play monetization.

In summary, while Nintendo may indeed be shooting itself in the foot by grabbing the revenues from YouTube Let's Play creators, it may think this short term sacrifice makes sense in the long term.  Nintendo may be willing to shoot itself in the foot today rather than allow unauthorized monetization to shoot it somewhere closer to the heart in the future.  Nintendo may see today's Let's Play monetization as the tip of a looming user-generated iceberg.  It may view the loss of "free" advertising as preferable to the loss of exclusive control over the performance of its games and its associated brand.

4. Policy

Finally, I'll want to add a brief appeal to you, the reader.  Nintendo might be making a mistake, but it is surely pursuing what it believes is best for its own interests.  But in the context of IP rights in video games, what do you think is in the best interest of the public?  What should be the scope of intellectual property rights in video games?

This isn't just an idle question -- it is a matter that is being debated in Congress right now. The day after Zack Scott complained about Nintendo's YouTube actions, a Congressional subcommittee was considering how copyright law might be better adjusted to our new digital era.  Copyright law is hardly set in stone.  Periodically, Congress rewrites the copyright statute in very significant ways.  It seems that a new balancing of digital copyright law is on the horizon in coming years.  But in the case of new media, what should that balance be?  Would we be better off in a world where Zack Scott could monetize Nintendo games in Let's Play videos to his heart's content?  Or is it better if Nintendo has the right to sue unauthorized Let's Play creators for statutory damages?

At present, I'm trying to come up with my own answers to that question, in part by gathering data about the extent of contemporary creative practices surrounding games and other new media.  As part of a project funded by the National Science Foundation, I'm doing research on the extent and nature of user creativity online.  I'm looking at YouTube and many other forms of game-related creative production.  So, if you have a second, I'd be very interested in knowing about your own creative practices related to video games.  I've posted a survey online here.  My research team hopes to publish the results of the survey, as well as other research from the project, by the end of the summer.  And in the meanwhile, I'd be interested in hearing your thoughts about the rights and wrongs of the Nintendo / Let's Play kerfuffle in the comments below.


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Comments


Michael Joseph
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People don't watch any old "Let's Play." Most of the "hosts" are horrible. The good ones on the other hand can achieve a large following. I think that reality helps the "transformative work" argument.

On the other hand, there are players who will watch a "Let's Play" (particularly for story driven games that have no replay value) in lieu of buying and playing the game themselves. Say what you want about those vicarious gamers, they do exist.

I think independent developers can further help delineate the differences between themselves and other classes of developers by declaring in their EULAs, on boxes, cds, websites, etc that their games are LP friendly.

In fact, I think indies who are anti-DRM, pro-LP, simple no nonsense EULAS, 100% user privacy, etc should get together and agree on a type of logo/patch/seal that they can advertise and share as a type of pro-customer brand. (and no I do not know how you prevent people from using the logo and disregarding it's tenants while keeping the use of the logo free and without having to go through some annoying approval process)

But the bottom line is this, the courts can come down with whatever solution they want, they can't require developers to disallow players from creating LPs! It is because there are so many independent developers that the courts can't help corporations lock down an entire industry behind an assortment of pay walls.

Gerald Belman
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An LP friendly tag is a great idea to help the situation until the courts can get to resolving it in a few years.(or 20 or 30 lol)

I'll give you some truths about this debacle. You can disagree with them if you want:

1) Games are not like movies, books, or music. They are games. The product they are trying to sell is something that must be played - not watched. Companies that make games that are actually games and not just interactive stories benefit alot more from let's play videos than companies that just make interactive stories. Maybe for games that are actually interactive stories, these companies should stop marketing them as games in the first place - because that is not what they are - then they could claim all the copyright they want without any worry about going to court.

2) It's ironic and laughable that these companies are worried that people would rather watch other people play these game than to play them themselves.

3) Unless, Nintento is planning to hire these let's players as employees, this is a horrible business decision that is going to put many Nintendo focused let's players out of work while at the same time reducing people's interest in Nintendo games.

I am glad that Nintendo is continuing it's descent into idiocy - There are plenty of ambitious indie developers with an LP friendly stance that are waiting to take their place. Good Job Nintendo.

Greg Lastowka
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That's a great point -- I do think a lot of developers, especially indies, are perfectly okay with fans monetizing their gameplay footage on YouTube. (And I think the trademark idea you're looking for is a "certification mark" -- here's the US version of that: http://www.bitlaw.com/source/tmep/1306_01.html )

In the near term, though, I imagine there will be a lot of confusion among YouTubers. At present, I think this move by Nintendo is being interpreted as an exception to the general rule that monetizing Let's Play is tolerated by developers. But other game companies have made similar moves w/r/t YouTubers in the past year, and I wonder if we're moving toward a place where allowing monetization will be the exception to the rule.

E Zachary Knight
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Maciej,

1) Games are not like movies in that they require near constant input from the player to progress. Movies are near 100% passive experiences. The "cinematic experience" is just one of the many motivations for the player to keep pressing buttons.

2) Let's Plays are not substitutes for playing a game. A video removes the one aspect that makes a game a game. The gameplay. Without, you don't have a game anymore.

3) You are right and wrong. While the popularity of Nintendo games does drive traffic to let's plays, the let's plays also drive traffic to Nintendo as people find games they might not have played without seeing a video.

E Zachary Knight
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Maciej,

"We're having a "yes it is, no it isn't" argument."

No. We are not. If you can't see that, and based on your comments down below you probably won't, then I am sorry.

Gerald Belman
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Maciej kind of has a point in one regard though. Not in the Let's Play topic, he's completely wrong about that. But in the uselessness of this discussion. When is the last time you got someone to admit they were wrong? I've never done it. I usually have to embarass or socially pressure people into admiting they are wrong. A simple reasonable argument never does the job. Talk is just talk in our world. It doesn't accomplish a god damn thing unless you can relate it to their own personal life somehow. Which is why politicians suddenly start supporting gay marriage when they find out their son is gay. Or start supporting disaster relief funding when their state is hit by a natural disaster. Hypocrites all of them. Nintendo will start supporting let's plays again once they figure out it is financially in their interests. Just give it time.

Gerald Belman
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@Maciej

It's good to know you accept the theory of evolution as an explanation for man's origin. You do right? You wouldn't want to quote someone you thought was full of crap right?

You might want to have a look at the full quote though: "It has often and confidently been asserted, that man's origin can never be known: but ignorance more frequently begets confidence than does knowledge: it is those who know little, and not those who know much, who so positively assert that this or that problem will never be solved by science." - Charles Darwin - The Descent of Man (1871)

Scientifically, we will find out eventually what is legal or not legal - by the courts eventually judging it. We will find out what is good business or bad business - by what other companies in Nintendo's position follow suit and do the same thing or on the flipside end up condemning their behavior. And obviously we will find out what is financially the best thing for everyone involved - by how the let's play community reacts and how it affects Nintendo's financials.

Morally, I agree, it is a gray area - if that was your point - of course that is implicit - everything is a gray area morally. That's not a justification to do imoral things though or support an imoral viewpoint. Without values, we'd all be killing each other.

You see, Darwin was condemning people who say "there is no answer". He was specifically saying there is an answer, and there is an aswer with almost everything in the realm of science. He was basically saying: people who know little, frequently believe there is no answer. So I'm pretty sure he was talking about you. But just give it time. We will find out eventually.

Gerald Belman
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@Maciej

I'm sure no one is reading our conversation or thinks it is very amusing. I'm sorry you think what I am saying is verbal diarrhea. I just wanted to point out how you completely misinterpreted Darwin's quote. Don't misinterpret Darwin if you don't want the conversation to turn to Darwin. Just a tip for the future. Good Luck.

Shea Rutsatz
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"You're the kind of narcissistic person that loves to bask in his or her elongated rants, so please don't interrupt yourself."

Did you read yourself saying that? These aren't Youtube comments.

[User Banned]
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This user violated Gamasutra’s Comment Guidelines and has been banned.

Leon T
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I agree with Maciej first post a bit.Some games are more interesting to watch than to play. YouTube videos didn't start that it just made a public outlet for it. I wouldn't call the LP a substitue for buying the game though because I don't buy games that would rather watch and not play.

It's fact that Nintendo games sold tens of millions before YouTube existed so I really doubt that LP videos help sell those games. Nintendo has commercials , reviews, and make their own youtube or eshop videos to sell their poproducts. I see those videos being more helpful for indie or niche games sale.

Bob Johnson
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@E Zachary

I don't subscribe to your points 100%.

...because even Super Mario games have many elements whose appeal is similar to the appeal of elements in a story. New characters, new weapons, new locations, new moves, new special effects. While there is little plot here that anyone cares about; these new things, similar to certain story elements, do motivate players to keep playing a game. ...thus showing those things completely in their entirety seems like the ultimate spoiler to me. Motivation lost to go get a game since you've seen all the new parts.

While I can see that some might watch the whole thing and then want to play the game I can also see the opposite. I don't think you need to see a game in its entirety to be sold on the game.

Watching games played in their entirety could vary well become a substitute for playing the game. You play vicariously through the commentator. Part of me always thought that some games I'd rather just have the cliff notes version. And be able to skip parts I don't want to do. And stop at parts I want to play. Or just see what happens so I can be in the know.

This could be seen as a failure of the game I suppose. Or it could be a whole 'nother potential business that someone creating the IP would want to control.

And don't get me wrong I also see that having a solid grass roots level supporting your games via something like LP can be a good thing. It can drum up interest and build goodwill.

But this is sort of going beyond that. It is becoming a business to a few it seems.

Tyler Martin
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@Maciej

It positively disgusts me to see posts as hateful and very much not constructive as yours on this site. Not just because your inability to rebut an argument without verbally attacking someone who disagrees with you is so low it doesn't even qualify as debate, but also to see that such posts have are seemingly allowed on here.

Do you have anything with some actual merit to say in response to those who've argued opposite to your position or would you rather just continue calling Gerald names?

Johnathon Swift
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Nice overview! I suspect mostly that there scenario in which Nintendo "Let's Play" videos are simply going to disappear altogether is the most likely one. The mere threat of legal action is so fantastically expensive that it allows the view of such an end as likely. Though were it ever to go to court, then who knows? The US, and every country's court system really, is far too outdated and ignorant a system to ever make any actually informed judgement on such a case. Just take a look at the utter mess of the US patent system for the best example, a thousand differing opinions ranging from the well informed to the grotesquely manipulated to the absurdly ignorant.

Though if I had to take a bet I'd say the copyright owners would win. It's almost magical how a system that is only supposed to strictly interpret the constitution and is forbidden from ex post facto seems to forget all of that when Mickey Mouse's copyright limits are about to be up.

Michael Joseph
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Oh yes, they would definitely win.

But I think it's a healthy mental exercise for the public to compare their behavior against free individuals that create similar products but which don't operate like sociopaths at every turn.

In this industry, customers really do have alternative choices because the industry isn't locked up by a few corporations that collude with one another over pricing, distribution, DRM, release schedules, privacy rules, OS & hardware reqts, etc.

Furthermore, real alternatives will curb their behavior as well without a need for legal decisions, rules or regulations. Without real competition, they will have no need to respect their customers.

Bob Johnson
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Tough call. I think when the use of someone else's IP becomes a business then it is a concern for the IP holder.

WILLIAM TAYLOR
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That is my view on it.

Legit companies get permission for the clips they use. I don't know why these guys think they can run a for-profit business using 100% of a game or tens of hours of footage from a game and think they're in the clear. These aren't fan projects. They individuals and groups operating as a business. As such, they should play by the rules that any other business would have to go through.

Lewis Wakeford
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I think it should really be up to the developer, as long as they make their stance clear prior to the games release (maybe as part of the EULA or something, I'm no lawyer). While I think in most cases (including most of Nintendo's games) a Let's Play does no harm or even benefits the developer I can see quite a few cases where a Let's Play could be considered full-on copyright infringement.

The Let's Plays of The Walking Dead for example, that game is basically an interactive story and so recording a playthrough with commentary and claiming it is transformative enough to be considered original work is a bit like uploading an entire movie to youtube with commentary by you.

I think in this case, Nintendo don't really have anything to gain and this is a huge mistake. Though it's probably just a case of corporate lawyers trying to look busy because they haven't had any *real* legal issues to deal with recently.

Andreas Ahlborn
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While an interesting territory, i get the feeling most of these upcoming cases that will carve out a thumb-of-ruling how future generations will be "legally" allowed to remix, reuse or build upon existing, copyrighted materials is simply there to keep our courts busy and our lawyers rich.
Anybody who has read Lawrence Lessig (code 2.0, Free Culture) will admit that its an important discussion but get the feeling that we will end up with more regulations simply because we can.

Consider this thought experiment: SomeLetsPlayers have adopted the habit to blend in their own filmed face during their playthroughs as a miniature, Now imagine the proportions between the actual gamescreen and the players face change: the game shrinks, the player grows. When will be the point where filming this video is considered "fair use"?

When half the screen is covered by the game and the player? I fear future generations will have a lot of regulations like: While filming a letsplay the quality can`t exceed 640p- resolution, and mustn`t be in stereo etc.

Alejandro Rodriguez
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If Nintendo wants to take their ball back, I see no reason as to why they shouldn't be allowed to.

I think the question is going to end up being, 'Who else?'

Is this a singular exception across a sea of Let's Play options? Is it the beginning of something even more scene-impacting once the precedent has been set by Nintendo?

I'd just as soon see LPers shrug it off entirely and focus on other publishers, ignoring Nintendo altogether. If the fans want their LP/Nintendo videos back, they should be the ones taking it up with the IP owners.

Kenneth Wesley
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He is right about one thing, among many other things: YouTube is getting off the hook for the rules they set up in the first play that allowed this to happen

Joe Zachery
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Microsoft has already done this with Halo gameplays where if you don't permitted by them through an agreement. You can't up any gameplay footage of that game. Activision will not allow any Call of Duty footage before the release date on Youtube. Nintendo is still allowing people to upload gameplay footage, but you just won't get paid for it anymore. What we have here are people upset that they now will not get money. For something according to Youtube laws shouldn't have gotten paid for to begin with. Once Nintendo decided to join Youtube this was going to happen. Now the people who has taken advantage of Nintendo not having a presence there are upset. I will say this I have noticed that Nintendo has worked with certain people on Youtube. They are called Nintendo Ambassadors and I believe actually get paid from Nintendo or special benefits. I would assume people who are really big on Youtube will get approached by them. I also these comments are coming from a person on Youtube who uploads Nintendo game footage. I'm not a partner, and has never gotten paid for doing it. I do what I do out of the love of art form of making videos, and a chance to express my fandom of Nintendo.

Greg Lastowka
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Joe -- thanks, I had heard about Halo and Call of Duty, but I hadn't heard about the Ambassadors program. That's interesting. And I do imagine that we'll still see a lot of fans uploading Nintendo game videos, even if Nintendo is the one monetizing them.

Adam Miller
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Generally speaking, I feel IP laws have far to much reach and should be toned down. That said, I have watched Let's Play videos in lieu of buying and playing a game. Straight-up, for some games, I was able to get from the game what I wanted from the video (e.g. for games like Bioshock Infinite, where many potential players just want the story). So I think you can make the case for infringement when the ENTIRE game is posted. Perhaps in some cases editing out cut scenes would do the trick.

andrew ferguson
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Academic research into videogames is heavily dependent on Let's Plays; it would devastate the field as well as many parallel fields such as narrative and cultural studies, if these actions forced videos or LPers offline. (And, to clarify: I'm not disputing the legal arguments here, just fretting about the effects legal actions might have on the archiving of gameplay videos.)

Also worried about the effects this might have on, for instance, Archive.org hostings (will Nintendo go after them?), as well as charity drives like TheSpeedGamers and others who routinely stream play of games, many of them Nintendo's, as a means of raising large amounts of money for worthy causes. I expect this would remain fine, since the content's not being monetized for personal gain, but it would be good to have clarification.

Greg Lastowka
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Yes, I guess that's up to Nintendo how they want to handle charity usages. Academic games researchers could try to rely on fair use in the event of contested takedowns, but as the saying goes, fair use is just the right to hire a lawyer. The Lenz "dancing toddler" case was about YouTube fair use and I think it's still being litigated after several years.

Ardney Carter
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To me, the red line with any fair use has been making money off of it.

Companies can bellyache all they want about theoretical lost sales and pull imaginary stats from thin air for days and not get an ounce of sympathy from me. If someone isn't making any money off it I don't really care what they do with your IP (in most cases). But if someone else is using their stuff to make money (profit), then I'll concede it's a legit issue.

Without a doubt this thing is a bit of a PR disaster for Nintendo. That said, I don't really feel sorry for the LP guys. Videos aren't being pulled, just money. They knew this was a possibility (or should have) when they started monetizing. Now they can deal with the consequences.

Roberta Davies
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This is pretty much my view.

Nintendo owns the IP and can legally insist on taking their ball and going home at any time. It's their right, but not necessarily the best choice.

My own moral compass reading is that "let's play" videos are fine if they're free. Once you monetise the video, you're making money on the back of somebody else's IP, and you're open for a smacking.

Estevao Testa
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In my view, Let's Play is marketing both its own name and Nintendo's, and getting paid for it, with a money that doesn't came from Nintendo. So someone else is paying Let's Play to market Nintendo. I do not understand how Nintendo is against it.

Also, gameplay videos, since they are meant to see, not to play, are a evolution of talk. It doesn't look ok, if suddenly a police officer shows up and tells me to shut my mouth because I am talking with my friend about a book I had just read, and this infringe the books IP. It's no like I can reproduce every bit of sensation the books pass to me when I tell my friend.

Perhaps this analogy was too much radical, but if things develop like this, I will have no doubts this case could turn real.

Patrick Davis
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If you break into my house and do the dishes. I'm not going to appreciate it. I don't care how good your intentions might have been.

Nintendo owns the IPs. Without the IPs in the video, they have no LP. Saying that Nintendo should appreciate any free advertising, even without permission, is ridiculous. Nintendo didn't ask them to do it, so anything that happens afterwards is at their own risk. Period.

Also, your analogy definitely does not match what you are saying. But, I get the point.

Estevao Testa
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You have a good point right there.

Looking at it now, of course Let's Play should have Nintendo's approval to make monetized videos about their product. The free advertisement is just a minimum in the entire scene.

I think my analogy would make much more sense if they are removing non monetized videos.

Rachel Presser
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Excellent breakdown of the different copyright laws-- the way you wrote the descriptions really helped demystify them, particularly if LPs constitute commentary or critcism. Also very interesting how neither party is really looking at Youtube's part in all this.

I think that what looks like a dick move on Nintendo's part is how the action doesn't match up to the supposed intent. From my understanding, if LPer monetized their videos of Nintendo games, a company with more money than most of us will ever see in our lives just takes even more money and leaves that LPer in the dust-- when really, Nintendo could've just asked them to take the videos down if upholding the copyright was actually their concern. Even though they want the public to believe that's their intent, it really doesn't look that way, at least not to me.

I'll be frank; as an indie I don't mind if someone puts LPs of our games up and whether or not they monetize them-- hell, thanks to Gamehorder doing a quick LP of the Mage's Initiation demo, it attracted new backers to our Kickstarter campaign that we otherwise wouldn't have gotten! If they put ads up, I'm not going to begrudge them their ad revenue if they took the time to make a video and color commentary about our game, whether 5 or 5,000 people get to see it. I don't see LPs as a substitute for playing a game-- rather, as a complement and free advertising. I have about 20 games I bought because I got interested from watching my favorite LPers tackle them and wanted to give them a shot myself.

But even in a story-driven game like most point-and-click adventures, my experience is often different than the LPer's because I love to click on everything and exhaust all the dialog options. They also might try things I wouldn't have. It really doesn't compare to uploading an entire movie like others are saying.

Greg Lastowka
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Rachel, thanks! It's possible that the indie game are going to have at least a temporary form of advantage in the UGC video space, if most indies are happy to essentially partner with professional YouTubers who can build community around a game. Nintendo might be in a different position if they're anticipating negotiating film/book/music/merchandising deals around their IP. It may be harder for the major players to make those deals when they're allowing YouTubers to make similar commercial uses without paying royalties. But I do think that YouTube is really the elephant in the room -- by cutting a deal with Nintendo, they're making their own revenue streams legitimate and anchoring their position in the gameplay media landscape.

Todd Harper
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I defer as always to your expertise with the legal end of things, Greg. And I don't necessarily disagree with any of your points on the matter; I personally am holding my "I think Nintendo has the right to challenge but should consider the non-monetary costs of challenging" stance. That said...

I want to take the opportunity to interrogate this phrase from the broader argument going on about this issue, especially given how widely cited it is --

Quote: As Zack Scott puts it: "Video games aren't like movies or TV. Each play-through is a unique audiovisual experience." I think that's just right -- the peformance of a video game is something different than a clip from a movie.

This troubles me if only because I think it's emblematic of this overstatement of games' -- particularly digital games -- variability between instances of play that is all too common. I don't disagree that games are different from playthrough to playthrough, but I want to ask in how many cases those differences present a meaningful change in the experience *from the POV of a viewer*.

Put another way, I think we don't have enough of a conception of the Let's Play audience to say that Zack's statement is unproblematically true.

I mean, people may be watching for the following:
1.) They're interested in how the LPer mechanically approaches the title. The content they're interested in is gameplay execution. Fighting game combo videos and platformer walkthroughs cater here, for example. In these cases I think Zack is right: between two individual playthroughs there's a lot of variability.
2.) They're interested in absorbing the aesthetic material of the game. Now the viewer cares considerably less about the thing that might vary between videos -- the actual play of the game. In these cases I think watching an LP IS like watching a movie clip or movie preview.

The interesting thing about that second type is that they're who the crowd is talking about when they refer to LPs as revenue-driving interest builders: the aesthetic trappings are only one half of the equation, after all, and while the viewing experience of one LP to another might not be particularly different, there's an expectation that once the LPer gets a copy of the game in their hands, *their* experience will be different.

Okay this got ramble-y so let me sum up my thoughts:
1.) Games are not always that different between playthroughs and we have a cultural tendency to overstate how much players have "unique" experiences, even accounting for contextual differences.
2.) The perception of what an LP is "for" counts for a lot, thusly, to me. Is it aesthetic curation, fan promotion, or critical engagement?
3.) What might be not particularly unique on the screen can still be driven by this "each player's experience is unique" impulse.

Thoughts?

Greg Lastowka
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Todd, I think that's right. And to return to my lit crit days, I think one "text" can read by a variety of interpretive communities. Actually in the world of game studies circa about 10 years ago, there was a lot more academic work (IIRC) that approached video games from the perspective of film studies, using that whole cinema-rooted vocabulary to deconstruct, e.g., Tomb Raider cutscenes. Game studies has been a lot more formalist and sociological recently, and perhaps some things that should not have been forgotten were lost (as Galadriel might put it).

So I do imagine different viewers read LPs in different ways. I know that I'm personally in the second category most of the time, watching them (when I watch them) to get a feel of the gameplay rather than out of an interest in the particular play styles. But for the serious RTS and FPS games, I think you'd have a different focus, so maybe some of this is about genre lines.

George Blott
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Great piece. Before I go fill out your study I'd like to share my thoughts here.
This is the kind of bad press that Nintendo really don't need right now, and I am all for LP content being on the internet, however I believe LPers should exercise discretion with what content they put up.

As an outside observer I can get away with just expressing what my gut tells me is right and wrong. And seeing LPs for games on the same day they have come out seems wrong to me.

Maybe there's a middle ground where games that are less than X time old would have a large chunk of the revenue they generate be given back to the companies who made them.
Maybe through some kind of an advertising partnership for new content.

To be clear I mean full on beginning to end let's play video series' should pay a 'tax' to the game publisher/dev if the game is newly released, things like Giant Bomb's Quick Looks or Total Biscuits WTF is... series are amazing advertising tools for new games and should remain exactly what they are. I'm aware that this case isn't about that kind of content.

Full LPs of old classic / forgotten games are an amazing kind of documentation, and having multiple versions helps highlight the variety of ways in which games can be played, yet when I saw a Bioshock:Infinite LP pop up on my youtube subscriptions the same day I installed my pre-ordered copy of that game it felt wrong to me. I don't know if you can legislate for the kind of discretion I'd like LPers to show, but I am happy to be able to express my opinion on it here :)

Greg Lastowka
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Thanks, George. I get what you're saying about the issue of seeing LPs on the day of the release, and the value of having classic gameplay videos available as a resource on YouTube. At the time of a new AAA release, you'll certainly see a huge spike in news and advertising around the game, so I imagine you'd see a huge spike in people searching for game play footage as well. Professional media do cash in on that with their own reviews, but often they've got some relationship with the developers. I wonder if some sort of embargo approach to LPs would work -- I sort of doubt it.

And you certainly can't legislate discretion -- wish that were possible! :-)

Phil Maxey
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Interesting article and debate.

Making the dubious link between movies and games does provide some insight though, which is, film companies put out trailers, which are snippets of their films. The trailers more often than not give away too much but that's beside the point, the point is that the companies choose themselves what get's shown and what doesn't, and are usually pretty hot on the trail of any parts of their movies being shown that were not put out by them.

Now it is true that a game is an experience which is partly created by the player, and partly created by the developers, so on one hand you have the performance of the player, and on the other hand you have the material that is being used in the performance. There is no performance on behalf of the viewer that changes the experience of the movie, but with games their is, however what is being changed is still the creation of the copyright holder.

Perhaps there are issues here in regards to the players tacitly agreeing to certain terms and conditions in relation to what they are playing, just by the act of playing the game.

At the end of the day, you can't have a LP video about a certain game unless the game developers created that game in the first place. It is their creation, their designs, their hard work that has then garnered the interest of others who want to feature that work in some fashion. Should the originators of the work allow other people to feature it, to maybe even earn revenue from it in some way? And in this socially critical age that we live in, would that be a wise business decision? perhaps, but ultimately the choice of whether others can earn revenue from it or not has to lay with the original creators.

Tony Capri
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Nintendo might not be wrong, but they sure ain't right in their actions. That's what I think. It would be one thing to simply demand the content be taken down. But if they're stepping in to funnel off profits via ads, they can't also argue copyright infringement. If that were the case, they're infringing on the copyright of the LP creators. Their commentaries are protected audio content.

Alan Boody
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Exactly.

David Serrano
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Greg,

How do LP tutorials for video games legally differ from instructional videos for applications like Photoshop? In other words, why is Nintendo entitled to share ad revenue generated by YouTube videos of consumers demonstrating how to use products they've legally purchased, but Adobe is not entitled to share ad revenue generated from videos of consumers demonstrating how to use their software? It seems like Nintendo's IP claim is on some level conflicting with the first sale doctrine?

And if you applied Nintendo's logic to a product like Photoshop, then wouldn't Adobe would be entitled to a share of the revenue generated from every piece of commercial art ever created with Photoshop?

Ian Richard
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While I could be wrong on this... it's different because Nintendo owns the characters, the artwork, the level design, the music and the story that is being included, in its complete form, with the LPer's tutorial.

Besides, another difference is that Photoshop hasn't ASKED for the tutorial videos to be taken down.

Bob Johnson
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Good question. But Photoshop is a tool. There are no spoilers in Photoshop either. No characters. No new levels. It isn't an entertainment product.

The 1st sales doctrine is about reselling purchased products. Not about using other's IP to make money.

Greg Lastowka
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David, Ian and Bob are basically right.
It is true that the main things is that Photoshop hasn't tried to enforce their copyright to stop instructional videos (or capture the ad revenues from them). But if Photoshop did, the copyright fair use analysis would certainly lean more heavily in favor of those posting (and monetizing) the videos.
This is true despite the fact taht companies have successfully claimed copyright in the visual appearance of software interfaces -- so it isn't impossible to imagine Photoshop suing a company that perfectly clones its GUI and sells a competing product. But you can go back to a case like Baker v. Selden (http://en.wikipedia.org/wiki/Baker_v._Selden) for the proposition that a flat 2-D "form" that functions as a tool should get little, if any, protection from copyright law. A more recent case is Lotus v. Borland. (http://en.wikipedia.org/wiki/Lotus_Dev._Corp._v._Borland_Int%27l,
_Inc.)
And on the side of the person posting the instructional video, I think the fair use claim that this is a "transformative use" is much stronger. A fair use claim based on a "how to" video for business productivity software would be viewed favorably by courts -- the fact that video games are entertainment products shifts the analysis a bit.
So you might wonder about game guides -- they're sort of instructional works that teach how games are played. I mentioned the possibility in the article that some LP videos might claim fair use along those lines. But lawsuits over game guides have occurred -- several years ago, Blizzard sued someone selling a Warcraft leveling guide, claiming it infringed their copyrights and trademarks:
http://terranova.blogs.com/terra_nova/2006/06/world_of_dmcaco.htm
l
They ultimately backed off, but some attorneys thought they had a case against the guide seller based on the screenshot usage. (I disagreed.)

David Serrano
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Bob

But video games are also tools. They are tools used to create, and to engage in play. So how does a video of a consumer playing a video game he or she legally purchased differ from a video of a consumer performing trick shots with a basketball he or she legally purchased? In both cases, the consumer is using the tool they legally own.

So why would Nintendo have a legal right to share in ad revenue earned from LP videos but Spalding not have a legal right to share in ad revenue earned from Dude Perfect videos Again, as a layperson it seems like the first sale doctrine (and common sense) should supersede these types of copyright and IP infringement claims. If the legal logic is the first sale doctrine does not largely nullify IP rights and claims, I think this opens Pandora's box. Because where would it end?

Greg Lastowka
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David,

First sale is an exception to the distribution right -- it lets you resell a book that you own, but it doesn't let you reproduce the work or adapt it. With regard to a Spalding basketball, there's no copyright in the ball. There could be a copyright in the logo on the ball, but when you play basketball with the ball, you don't reproduce, perform, or adapt that logo -- so there couldn't be copyright infringement. The question of logos in sports has actually come up in the case of the Baltimore Ravens.
See this: http://www.hollywoodreporter.com/thr-esq/nfls-baltimore-ravens-lo
go-why-435543
But if you're saying the copyright in the game should not extend to videos of game performances as a matter of sound copyright policy, I get that -- thought several people in this comment section are disagreeing about that.

David Serrano
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Greg,

Follow up question lol. Nintendo's infringement claim is based on the premise that advertisers are paying the YouTube partners for the footage of their IP. But in reality, the advertisers are paying for the page views the videos generate.

So if the YouTube partners in question could somehow prove their page views are generated by the audience's demand for their commentary and expertise about the games and not for the footage of Nintendo's IP... could Nintendo still legally force YouTube to pay them a percentage of the ad revenue?

Greg Lastowka
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Hi David,

You should probably take a look at the YouTube TOS that governs uploads and monetization -- I haven't read it recently, but I doubt that YouTubers can legally object to YouTube running ads against uploaded videos and diverting a portion of the advertising income to a third party. So for that reason, I think the answer is no -- even if the LP'rs own the copyright, the TOS might basically force them to play by YouTube's rules anyway.

Also, the copyright claim against the YouTubers (which really hasn't been made out - this is all just YouTube operating under the shadow of copyright law) would not hinge on the reasons that people watch the videos. The fair use claim of the YouTubers might depend on that somewhat, but it's hard to know what a particular court will find most significant in the case of a fair use claim.

David Serrano
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Greg,

"There could be a copyright in the logo on the ball, but when you play basketball with the ball, you don't reproduce, perform, or adapt that logo -- so there couldn't be copyright infringement."

But when you purchase a ball, legal ownership of the ball is transferred from the manufacturer to you. So if you make a video of yourself playing with your ball... how could the video constitute an unauthorized reproduction or adaptation of the IP? Take a look at this: http://tinyurl.com/bbswen8

Is this an unauthorized reproduction or adaptation of Rawlings, Majestic Athletic, Wilson or the LA Dodger's IP? Or is this a child playing with property his parents purchased and legally own? Could any of these companies demand a percentage of money his parent may earn from the video because it contained products they manufactured... but no longer legally own? Because as I'm sure you know, a court ruled last year that when a video game (packaged or digital) is sold, the "transaction involves a transfer of the right of ownership of the copy."

Since ownership is transferred when a copy of a game is sold, what are you actually looking at when you watch LP videos? The IP of developers and publishers, or a consumer or business using their personal property?

Greg Lastowka
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David,

So just to be clear: I don't make these laws, I just explain how they work. :-)

Ownership of a physical thing doesn't grant ownership of the IP, and doesn't grant the owner a right to, e.g., make copies of a work. So, e.g., I can buy a Harry Potter book, but that doesn't give me the right to make copies of that book and sell them. I can buy a poster with a Dodgers logo, but that doesn't give me the right to sell t-shirts or caps with that logo. In they eyes of copyright, a video is just another form of reproduction, a copy. A video that copies a logo is potentially infringing if the logo is protected by copyright. That's what the Baltimore Ravens case was about. (And that's why, in part, you'll see logos blurred out on many television programs.)

In terms of copyright in logos: to the extent those logos are visible in this video (I didn't spot all of them), I'm 99% sure they'd be fair use. But there are cases where courts have found video copies of logos infringing -- that happened in the Ravens case: http://www.law.com/corporatecounsel/PubArticleCC.jsp?id=136386899
9732

In terms of trademark: I don't think anyone would see the logos in the video as source-identifying, hence no infringement.

But the thing to see is that ownership of a physical object won't always allow the owner to make copies -- including copies in videos.

Sebastien Vakerics
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I very much enjoy watching speed runs of games and other skilled play. I think in this respect the player is an integral part of the watching experience as they are demonstrating their expertise and hours upon hours invested in the game. On the flip side, someone can be absolutely terrible at a game. However, they can do so humorously and be entertaining. The individual brings themselves into the gameplay and provides a performance. It was mentioned by Tony Capri above that many LP creators include commentary in their videos, which are unique expressions of the player's experience. While it's true Nintendo published or developed the games, it takes a human touch to create an entertaining experience. The game will not play and commentate itself.

While I can understand that Nintendo may feel it needs to assert its copyright, I don't think siphoning the money from the LP creators is the right decision either. At the very least, I would think the LP creator has the right to their audio, personal branding, and intros. The personality that they've created belongs to them. They should be able to enjoy the benefits of cultivating their brand and their viewership. Many of their viewers have already played or own the game they are watching. I think it's telling that those who own the game choose to watch the LP instead of actually playing it.

I think Nintendo has the idea that people are making money from their products. The reality is that these people are making money from their own talents as players, editors, and entertainers regardless of what game is being played.

Bob Johnson
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If they are making money via their talents then they won't mind if Nintendo takes away its games. ;)

Also why aren't these folks showing full length movies and commentating on them? We accept you can't do that. Why? Probably because movie companies never allowed it in the first place.

And when you do use the work of others you do have to pay royalties and usually you have to get permission don't you?

I think you make a great case though. And I do think LP folks have the right to their own audio etc. That seems fairly obvious. No one said they didn't.

But do you think Nintendo wants folks to go to YouTube to relive games instead of buying them again from Nintendo? No. Just as a movie studio wouldn't want that.

Michael Joseph
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http://www.whatgamesare.com/2013/01/why-should-games-become-like-
broadcast-media.html

"The culture and maturation of games has largely bypassed television entirely. Regardless of what you think of it, few are the culture shows that discuss the merits of The Walking Dead, whereas gaming-specific media like the Giant Bombcast are breathless in their analysis and critique."

- Tadhg Kelly

---

Mr Kelly then goes on to compare it to sports media where teams and athletes are analyzed extensively for hours and hours every single day.

I'm not sure I would say "maturation" is a factor, however, I think it describes a very interesting and inherent dimension to games and communities because the player is/can be a performer. Back to the subject of LPs, should we not be thinking of LP's as another dimension to gaming? An LP becomes a way for a particular player to tell a story that is a blended experience made up of the game, the players personality and commentary and their actions within the game.

Tadhg Kelly's comments somehow make me feel more optimistic about the future of games and if only this immature industry would stop believing that it is inferior to film and broadcast media.... Walk tall games industry.

Jonathan Murphy
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From a long term standpoint this is a open slap in the face to all your loyal fans. BTW those fans are the only reason the Wii U isn't dead in the water right now. Look at Minecraft! Want to know why it did so well?! Youtube users!!!!!!!!!!!!!!!!!!!!!!!

Dave Hoskins
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And yet...
https://mobile.twitter.com/notch/status/335045859156819969
"We had a meeting with YouTube and got told we could get a cut of all Minecraft video ad revenue. It was tempting." - Notch.

max bowman
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I think Nintendo's approach is wrong headed for a variety of reasons.
For one this is a relatively new phenomena and has exploded into a culture all its own. Sites like Twitch.tv have turned playing a video game into an art form.
The player input itself is an emergent art form at this point. No better example than TAS videos, speedruns, combo videos, professional play and comedy playthroughs (there is a famous difficult custom mario playthrough that is very well known) TAS and speed-run require something approaching a professional skill-set to compete in and entertain in today's LP video market. When you allow monetization you let these skills thrive. When you clamp on them or start policing the LP market you lower the impact the game can have culturally. Which is detrimental as you would want as much of a cultural stamp as possible to increase mindspace. Thus improving the viability of your IP. Like the Red vs Blue series for example. Now if a LP maker is very talented and makes memorable videos of a video game, that in theory should increase the game's sales because that becomes positive publicity for the game. He should be compensated for his actions in order to make his position enviable for future VG player performers. Thats why I think nintendo is wrong headed when it comes to their LP policy

Russ Menapace
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Is Nintendo really this desperate for cash?

Jonathan Murphy
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Here's a small list of games I bought because of Let's Plays. I would not have bought these games otherwise.

Xenoblade Chronicles, Assassin's Creed 3, Cave Story, Star Craft 2, HOTS, Diablo 3, Roller Coaster Tycoon 2, Indigo Prophecy, Mario Party 2, Metroid Other M, Secret of Monkey Island.

Bob Johnson
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Did you watch the LP and then months or years later buy the game at a discount?

Did you actually play these games all the way through after watching the LP? Did you watch the LP all the way through?

Just curious.

Jonathan Murphy
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I bought all of them minus Indigo, Mario Party(VC), RCT 2 at full price. Before LP's I had settled into only getting a 1-2 full priced games a year.

I will be buying Phantasy Star Online 2. In my opinion YouTube is the best advertising tool humanity has ever created. Let's keep it that way by rewarding the people. As a result the companies also see profit. Blizzard, Valve, Mojang, Riot Games get this.

Raymond Arroyo
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The debate on this thread is very interesting. If you read any theory concerning video games, you'll find there's two schools of thought regarding "what is a video game". The first school maintains a narrative based approach to video games, claiming that games are structured around narrative pay-offs and therefore can be viewed as extension of books or movies. The second preaches as a theory of ludology, which claims there is an intrinsic experience that can only be created through the medium of the video game. Regardless of which one you subscribe to, it's impossible to definitively argue what a game constitutes as. It's a subjective determination and should be treated as such. So yes, Maciej has a point that LPs could easily ruin narrative heavy games, making them pointless to play through (i.e. Final Fantasy games). And Knight and Gerald also have a point when they argue that some games (many of them in my opinion) can only be experienced through interaction. Since the player is putting in an input then the experience of the game is that of simultaneously engaging with and experiencing art. Games where that input hardly varies and the intrinsic value of the game is low, maciej has a solid argument. However, many great games are great for the opposite reason. The point I'm trying to make is that Maciej is wrong in many cases, but you guys are also being stubborn by ignoring that some games rely almost exclusively on narrative elements and cinematic elements.

Bob Johnson
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EVen with story elements I would think that a LP can result in less sales by giving the customers who haven't bought in what they want. Knowledge of the new mechanics and gameplay.

Like if your buds talk about a game. And you don't have it. Well now you can go on YouTube and watch it and know what they are talking about. Yes you didn't play it. But you lived it vicariously. I mean I sit on the couch sometimes with my 2 kids and we play a game. I am often watching and not playing. I have to say there is little incentive for me to go back and play the parts that I only watched. I think there is some of that going on here.

Or the guy who rents a game for $2 at Redbox. Plays it for a night. And then watches the LP to get the rest of it. Good enough. Sure sometimes maybe he says, you know what, I am going to play the game again. Then he rents it again. Or maybe the LP shows you how to get through a game quicker so you can experience much of it through a one-time rental.

I do admit Nintendo seems to have less of a worry about all this. Other games are much narrative based than almost every Nintendo game.

STill part of the mystery and mystique behind Nintendo is their games and the surprises therein. IF you made a game would you want all that unlocked and shown to the public by someone not in your employ?

It would seem to create a disincentive to play the game. And if some consumers really just want others to play the games for them then maybe Nintendo wants in on that business. Maybe that is a way for them to sell games to those who don't really want to play games.

Raymond Arroyo
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Bob I think you underestimate the intrinsic value of playing a game. No amount of "vicarious video viewing" is going to replace the feeling of playing. Furthermore, I argue that story elements make games have less intrinsic value, so you stating "even with story elements" doesn't make much sense. Instead you should argue "even without story elements" or "even with unique game mechanics" You assume players want knowledge of the new mechanics. You argue that this is because we play games because of societal pressure. This may be true in some cases, but can be debunked just by looking at the rise and fall of games. Gaming didn't initially start out big, but gradually grew in its player base. This means at one point when people played games they must have done it for something other than any social interaction. You cite that there is some enjoyment to be had in watching someone play. Yes, there certainly is, but that doesn't preclude greater enjoyment that can obtained through playing. Essentially what I'm saying is your initial assumption, which can be read as "players play games for information and a semblance of the gaming experience" is wrong. Players play for many reasons and to reduce it to that assumption discredits the diverse needs of the community and rails against what could be perceived as the dominant force behind gaming (the intrinsic value of the game). Finally, my post had nothing to do with whether LPs are damaging to games. In fact, I even create a scenario where they are indeed damaging.

Matt Walker
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Thanks for the well thought, detailed, informative analysis. Truly an excellent blog.

Jonathon Green
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I'm tired to the point of rage when constantly hearing comparisons of books, music, sports and god knows what else in comparison to games, as a means to defining how old laws made and managed by old and or long dead people without any real comprehension of the matter at hand, should apply to new mediums. In a world where money not reality or righteousness will define the state of play anyway.

This whole debate could be solved by one person of slightly above average intelligence simply being unbiased.

It doesn't matter if Let's Plays made you buy video games. Or if Nintendo would make more money if they let other people continue to be more competent at their jobs than they are themselves.

Until money is no longer an issue, we live in a world where everyone needs to make it, and the more laws restrict and incapacitate emerging markets the richer the rich become and the poorer the poor. This is NOT in the interest of majority, the people, .... WE THE PEOPLE, those for whom law was created, not WE THE CORPORATE ENTITIES.

Scott Galloway
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I see this as a VERY bad move for Nintendo right now. their current system sales are seriously disappointing, especially since its little better than their last system. their only real cash cow is the 3DS but their problem is their advertising dept thinks it doesn't need to do anything. the company is very tight lipped about their system and games when they should be focusing on trying to turn peoples heads around on just how awesome this tablet controller set up stands out from the crowd. how its different and offers game play that the others just dont have.

public opinion in general is that the wii is fun enough but dont see the reason to upgrade. the new system was meant to draw in more main stream gamers but they havent really done anything in those regards. they havent released any exclusive big boy games, sure they are famous for mario, metroid and zelda (didnt forget about you SSBM) but those largely feel oldschool or kidish. did any one else feel like their hopes and dreams were shattered when they released windwaker after showing that amazing HD realistic Zelda tech demo? if they dont pull that level of detail off with the un-named zelda title they are working on right now they will have lost the chance to really grab mainstream hard core players attention.

the only gimic they have going for the wii u is the touch pad controller but sony does the same thing with the PS4 and vita and xbox 720 (Infinity) will likely have a touch sensor on their new controller and have smart glass. plus they both have the added bonus of being a media hub, streaming multiple sources to your living room...
-DVDs / Blurays
-streaming services other than just Netflix
-stream movies / music / and pictures from your PC
-relax on the couch while looking up internet on your TV
-play with people on line that you dont HAVE to get to know and share friend codes with.
-both next gen consoles will feature a share feature in the system and here is Nintendo saying "No we dont want you to spread the word about games you can play on our systems"
-the PS4 and Xbox 720 both let you have video calls to any one even if they dont have a game console, Nintendo? well only if you have a Wii U and even then only if they are on your friends list

as for the argument that players are watching the games for the stories or what ever and hurting sales? when is the last time you have played a mostly cinematic game on a Nintendo platform? Nintendo has never had the rep for involving stories, that always goes to Microsoft or Sony. every game I have ever seen or heard for the Nintendo console has been puzzle solving, shooting, jumping through obstacles to get from point A to point B and then "thank you, but your princess is in another castle." on to the next task!

we are not a society of "one machine for each thing we do" any more. look at the highest selling forms of electronics, multitasking/multi perpose such as PCs, Tablets, smart phones and all in one media entertainment center machines and yes that means games too. Nintendo needs to wise up, kick its advertising department into overdrive and give them selves every exposure to the public as they can and give us a new system to play with the big boys. thier next offer HAS to have at the very least the same capabilities of current or next gen systems or it will surly start to circle the drain.

personally I LOVE the Zelda, Mario and Metroid series but I ended up selling my Wii AND my 3DS because I rarely ever played them any more and there are so few exclusives that I cant justify the rationality of getting a Wii U.

to the point of this topic, Nintendo needs all the spotlight on themselves and how fun their games are that they can because they arent exactly trying to convert people and right now they are in major need of the publics positive opinion. I know that Asians think differently than we do but the fact is, even though Japan is a HIGHLY dense population and player base there, their numbers pale in comparison to the rest of the world. they need to drop the high and mighty "I'm high and mighty and we know whats best for the rest of the gaming world" attitude. I say high and mighty but they also feel like a highly secretive and anti trusting company. Whens the last time any one ever saw a Nintendo IP movie? not since the world renowned crap bag called "The Mario Bro. Movie", but I blame you Nintendo for 2 reasons. its your cherished IP yet you clearly werent paying attention the script, director or movie concept. any one else drooling at the thought of a HD live Action Zelda movie (maybe with a cameo of Lindsey Stirling playing her rendition of the Zelda theme song in either the opening or ending credits? One bad mistake shouldnt cause you to be so cynical of the world.

I give them that they have revolutionized the gaming industry in leaps and bounds, I mean most of what we enjoy in gaming today exists because of them. we wouldnt even have the Playstation if Nintendo hadnt approached Sony to make a CD add on for the SNES and then broke off the deal. Sony said well what do we do now? we built the thing, well I guess we'll throw some plastic over it then put it on the shelves and thats how the PS 1 was born. they even gave us the cherished crosspad we all have come to expect from every system since. (Sega's was "OK" but just didnt stand up) not to mention the first thumb stick controller, motion controller, augmented reality games you could own personally (3DS) first 3D system (only 100% 3D system) R.I.P. Virtal Boy, you were so far ahead of your time.

obviously I could go on for hours and Nintendo is a landmark company that every video game maker, studio, innovation has been inspired from in some way or another. but get with the times. the public has spoken loudly with sales. you need to get the word out or risk going quietly into the night whether you like it or not. Dont shoot yourself in the foot when you need them so badly.

ok rant over, sorry for that. :P


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