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Originally published on Divine Knight Gaming.
In the early part of last year, we wrote an article about our thoughts on Let's Play videos and fair use. This was written in response to Nintendo's choice to use YouTube's Content ID system to claim ad revenue on user created videos of their games.
In that we wrote that fair use trumps any claim we may have on video's depicting our games.
But for us, we don’t think that creating a video of you playing our game is anything but fair use. How can it not be? You are not creating direct copies of our games. So you are not infringing our right to be the sole distributor of our game. The videos are clearly transformative. Meaning, it is not a substitute for people buying our game as watching a video is a vastly different experience than actually playing it. Additionally, the majority of let’s play videos include content, such as commentary, that is not created by us. That is the copyright of the person creating the video. We provided a canvas, they made the painting. That is how we see it.
Because of these thoughts, we chose not to give explicit permission to create let's play videos of our games because we have no to right to do so.
But now another issue has come up, one that was at issue back then, but didn't make the headlines as it is now. This issue is whether game developers have any right to claim money made by let's players. Why is this an issue now? Two reasons.
One is the news that PewDiePie made roughly $4million on let's play videos last year alone. That is seriously a lot of money. I would love to do something that brought in that kind of cash.
The second reason is Fez creator Phil Fish's response to that news. On Twitter, he wrote that Let's Play video creators owe game developers a large portion of any money they make from those videos. This did not go well among a lot of people.
So we gave our general thoughts on this matter last year, but wanted to respond further. So we wanted to answer a few questions about our thoughts on this money issue. Questions are thanks to Oklahoma Game Developers (which I write for and own)
In general, how do you view Let’s Play videos? Do you find them beneficial or detrimental to game developers? Why?
I already wrote my general thoughts about this above. In short, creating let's play videos is fair use.
But as for how they impact our business? Free advertising is awesome. Word of mouth is the most effective form of getting the word out about anything. If you were to ask anyone in the world who they trust more, their best friend or a marketing agent, when it comes to recommendations for buying something, I feel confident they would choose their best friend 100% of the time.
The same goes for trusted personalities. Just look at someone like Oprah. When she recommends a book on her show, that book becomes a best seller within the week, if not hours after the show. That is because she has a lot of sway on the decisions made by those who watch her show regularly.
A lot of let's play creators have built up a personality and a following that grants them similar pull with gamers. If a YouTuber such as PewDiePie or TotalBiscuit creates a positive video about a game, no matter how obscure, that game will often see a spike in sales. Why? Because they have a "trusted friend" status in the minds of many of their viewers.
So yes, game videos on YouTube can be very beneficial to a game developer's sales and career.
Do you allow Let’s Plays of your games? Why?
To quote our previous article:
So why not write up an explicit license or statement allowing for such use? Because it is not in our right to grant you permission to do something in which you have a legal and natural right. That would be like me giving you permission to breathe or eat. We couldn’t stop you if we wanted to. Even if we wanted to, we would have no right to prevent you from doing it.
Are you in favor of allowing Let’s Play video creators monetizing their videos? If not, under what conditions or restrictions would you allow monetization?
This is a situation that seems to rankle a lot of feathers in the games industry. It is a very divided issue. Who is allowed to make money off these videos. Even those game developers who are in favor of allowing let's play videos, there is a division over if they should be monetized.
Some would argue that fair use can only be non-commercial in nature. However, we do not agree with that and there have been numerous court rulings to that effect. Fair use does not prevent someone from making money off that fair use. You can create a money making business based around fair use of other people's copyrighted work.
When it comes to money, one of the tests over whether fair use is in play is the impact that use has on the market of the original. So if, as I posted above, that impact is beneficial, then fair use is a go. That means if I am not directly taking business away from you, there is no harm being done.
So in that case, monetization is allowed. If they are acting as an advertiser and driving customers my way, they deserve to be paid for that work. We are getting paid via the increase in business, they are getting paid via YouTube advertising. It is a win win.
But, you might say, what if the Let's Play is a negative portrayal of our game and people are choosing not to buy the game? My answer to that, make a better game next time. Nothing frustrates me more than a game developer that feels entitled to sales regardless of the quality of the product. Would you be happy with the purchase of a steak if said steak is dry, over cooked and bland? No you would not. You would probably ask for a refund. So if someone tells you not to order a certain steak from a certain restaurant, that restaurant has no claim that you are "stealing money" from them. They made the bad steak, they should live with the consequences.
What are your thoughts on the DMCA and Google’s Content ID systems for YouTube?
Frankly, I think copyright law in general and the DMCA specifically is entirely screwed up in the US. The DMCA needs to be culled from copyright law entirely. Are there some good parts in it? Sure, but when taken as a whole, there is no redeeming aspect to it.
The primary thing that impacts the games industry and YouTube is that of the DMCA's notice and takedown system. Under that system, the target of the DMCA notice is presumed guilty until proven innocent. That is antithetical to our justice system. Our justice system was founded on the idea that everyone is innocent until proven guilty. But for some reason that idea was tossed in the trash with the creation of the DMCA.
A better alternative that would give the benefits of the DMCA while still protecting the rights of the target is that of a notice and notice system. In this, the copyright holder would send YouTube a DMCA notice. YouTube would then send the uploader of the video a copy of that notice and give them a specified amount of time to respond. If they respond with a claim of fair use or some other statement to the effect that the video is not infringing, then it is up to the copyright holder to sue them in court to remove the video. Only after winning that court case should the video be removed.
As for Content ID, this is probably the worst extrajudicial system I have ever seen put in place. This system is ripe for abuse and is openly abused on a regular basis. One aspect of this system is that it allows someone whose work is used for mere seconds to claim ad revenue on the entire video. Often the videos don't have to include any of the copyrighted work. They simply have to claim it does.
So I think that needs to be scrapped entirely and YouTube never should have created it in the first place.
Anything else related you would like to add.
Just some general thoughts about copyright law. Copyright terms are far too long. There is no reason why terms should extend beyond the life of the author or something along the lines of 20-50 years. Specifically with games. Most games have a life cycle of about 5 years at most. There are a few occasions where a game's life extends beyond that, but that is rare.
However, so many of the games created 10+ years ago are dead to the modern world. This is primarily due to the hardware required to play them becoming obsolete and hard to find. There are some efforts to bring older games back to modern audiences, but they capture only a small part of the more popular games. The less popular games fall by the wayside and are forgotten.
We see the long term effect of these extreme copyright term lengths in the book industry. There the impact of orphaned works, or works whose copyright holder cannot be found or determined, is felt tremendously. Such works cannot be republished because they are still covered by our life+70 year terms but no copyright holder can be found to grant permission. Because of this, such works are left to fester in obscurity and are eventually forgotten.
The same is happening in the games industry. I wrote a lengthy article about this over on Random Tower.
The lack of a public domain for games is hurting the modern gamer by denying them classic games outside of costly and time consuming collecting. Considering the finite number of working cartridges and discs for those games, many gamers are out the ability to play them completely.
How much better would it be for gamers if we didn’t have such a dirth of games. Imagine if we pulled the ROM industry out of the shadows and brought it into the light and allowed those games to be freely and widely distributed. That is the power of the public domain. Instead of having fewer than 10% of games available through legal means, you will have closer to 100% of those games available.
So there you have it. My thoughts on Let's Plays, monetization and copyright. I hope that you got something out of this.
I would like to leave one last thank you to all the hard working let's players who dedicate their time and effort to promoting the games they love. May you continually have a system in place that awards you for your hard work.