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back to article Nintendo throws flaming legal barrel at YouTubing fans

Nintendo has contacted fans who post walk-through videos of its games to YouTube, claiming all revenue from their efforts. Gamer Zack Scott brought the practice to light in a Facebook post. Scott is a member of Let's Play, a community in which folks post "videos in which the author records the complete gameplay of a video game, …

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Anonymous Coward

The Wii U is dead

to be followed soon by Nintendo, if they don't lift their game.

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Re: The Wii U is dead

"The Wii U is dead" - Let's hope so.

"...to be followed soon by Nintendo" - Hopefully not. I'd rather they do a Sega and start making games for other platforms.

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Re: The Wii U is dead

Opening up the Nintendo Crown Jewels of Mario, Metroid, Pokemon etc to other platforms could massively revamp the company.

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Re: The Wii U is dead

We may finally get pokmeon on the console woohoo.

Seriously I've been waiting for a 3d pokemon game with better battle mechanics (by which I mean leer / glare are useful beyond the first town, and you have access to more than 4 moves) forever.

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unique audiovisual experience?

I'm not sure how he came up with recording someone playing a game is a "unique audiovisual experience". I can see why he might be getting a bit butthurt that Nintendo want a cut of the money he's making but they could have just forced youtube to pull all of the videos as the videos contain their property (graphics, animation, sound effects etc). I'm sure he wouldn't like someone recording his videos with a phone and uploading them as a "Let's watch let's play" and claiming it's not a problem for them to be making ad revenue from those videos because it's a unique shaky video experience. If he doesn't want to share with Nintendo he could always go old school and write a walk through instead.

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Flame

Re: unique audiovisual experience?

RTFA.

It doesn't say Nintendo want a cut of the revenue, it states that they want all of the revenue.

Considering that the 'creative work' also includes commentary by the player (which is copyrighted to that player), then the player is entitled to keep at least some of the revenue for their efforts. I'm sure that if Nintendo hadn't been such greedy fucking bastards and asked for a percentage on those grounds rather than trying to guts the whole fucking lot there wouldn't have been nearly the hostility there is now.

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Re: unique audiovisual experience?

The have adverts on their website etc too. I don't think Nintendo is claiming any right to that even though that revenue is going to be partially generated from their uploads that contain other people's content.

Yes, it would be nicer if Nintendo did offer to share revenue but I suspect youtube is setup in such a way that if a copyright owner makes a revenue claim they get all of it because it's mostly setup to handle people uploading music videos etc.

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Megaphone

Re: unique audiovisual experience?

No, no, no. You don't let this kind of strong arming take place, if you do, then it will spread. Just days ago ElReg did a "walk-through" for Office 365, this is the same thing, and giving Microsoft the ability to ban an instructional video because it uses the likeness of their software would be absurd (or damage all of society in the long run). Their IP is the game, a video of the game is not playable, therefor it doesn't compete. If this is allowed, then what is to stop Nike from banning videos of people running in their shoes, or Levis from demanding their cut from anyone wearing jeans in a home video.

If they want to skirt the law, then break up these types of videos into smaller "clips", but don't ever let them take money, or think they can control teaching and demo videos because where will it stop?

Everything is owned by someone on some level, only media design to be passively viewed should be protected this way, not shoes, or shirts, or toys, or word processors, or video games. What the hell is wrong with people? Imagine trying to learn Word or Excel when the only place authorized to display a likeness of the application is Microsoft Online University.

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Re: unique audiovisual experience?

>ElReg did a "walk-through" for Office 365,

Does a video of a desktop application include lots of animation, sounds, music etc that are owned by the application's creator?

I would argue that recording the screen of a desktop application is a little bit different than recording a game that contains significant amounts of graphical and audio content.

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Paris Hilton

Re: unique audiovisual experience?

> I would argue that recording the screen of a desktop application is a little bit different than recording a game that contains significant amounts of graphical and audio content.

How exactly?

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Re: unique business process humiliation experience?

Read the small print. When you buy business software now, including Microsoft's, you're liable to be agreeing to a condition that you won't publish a benchmark, or anything that can be construed as a benchmark, without the software publisher's approval. That means every customer, although maybe not reviewers who get a loaner copy - you'd have to ask The Reg'. So, hypothetically, I could tell you that Xxxxxxx Xxx Xxxxxxxxxxxx is a stinker business software product that you shouldn't touch but I'd be breaching the licence terms. And that hypothetical licence cost us a hypothetical £xxxxxx, so I'm not about to do that. That's just how it hypothetically is. Would be. Whichever.

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Re: unique business process humiliation experience?

I'm curious, do you think everything that is put into a license becomes legally binding?

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Coat

Friend of a friend?

Never thought about it, but could Nintendo or any company do this to easily get the subscriber list, to later market to all of them directly? No matter, I've never seen a company get tighter on copyright and later prosper from it, they only seem to make their own noose tighter. However, for Nintendo today, any press is good press, their just that far in the wind.

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So this guy leverages Nintendo's intellectual property to make some coin, and then gets upset when the revenue stream what he considers his own intellectual property gets diverted?

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FAIL

Nintendo might be able to claim copyright but will be left with a massive PR nightmare and alienate their fans (both of them)

Idiots...

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Nintendo might be able to claim copyright

I doubt that that is the case. The resulting video is clearly a composite work (generated imagery on one hand and player input and commentary on the other). Copyright law is clear that each party retains its own copyrights in such cases (assuming Nintendo's is valid, which is not itself 100% clear). Nintendo do know that, so while it's easy to get overexcited and throw terms such as "fraud" around, the term does seem to be apply to this land grab.

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"leverages Nintendo's intellectual property"

Posts a walk-through for a computer game that would probably make more for Nintendo through just one extra purchase than a whole month of ad impressions?

Nintendo can jump down a pipe, and do can the notion of intellectual "property".

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Pint

"I doubt that that is the case."

Whereas I personally doubt that mega-corps send out legal requests without waving them at their legal department first.

"The resulting video is clearly a composite work (generated imagery on one hand and player input and commentary on the other). Copyright law is clear that each party retains its own copyrights in such cases."

Depends *where*, of course. I suspect that Nintendo have enough wit to have made sure what they are doing is legally correct or at least viable.

Morally a little questionable and a PR shot in the foot, but probably legally viable...

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Re: Copyright law is clear that each party retains its own copyrights in such cases

Not quite that cut and dried. For a number of years I was involved with an NPO that put on a major US anime convention. One of our staples was the fan video contest. The video parts, being snippets instead of a continuous segment were covered under sampling rulings. But our lawyers advised us that in order to protect ourselves we needed to license the music through the appropriate channels., because those parts were continuous. They were clearly composites to the end product. And music for video games is copyrighted in its own context.

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Anonymous Coward

"Why is Nintendo bothering to harvest pennies from YouTube?"

The usual reason.

Accountants.

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Re: "Why is Nintendo bothering to harvest pennies from YouTube?"

Nintendo and clearly seen how massively successful the RIAA and their friends have become since they've declared war on their customer base. How suing anyone who's ever remotely thought about buying a copy of a copyrighted work just in case they thought about making a copy, has massively increased their sales and hence their profits.

On the other hand, someone from Nintendo's legal suicide squad has probably noticed how the legal departments of the RIAA et al have massively increased their size and influence by replacing the marketing department as the primary way of presenting the company to its customers. So the legal's have gone on the war path knowing full well that the only winners will be the lawyers, ie themselves.

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Anonymous Coward

Re: "Why is Nintendo bothering to harvest pennies from YouTube?"

Because a Japanese warrior would traditionally rather die than surrender.

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The small print

As one who never reads the small terms and conditions on games, is there anything in them (whether enforceable or nor) that seeks to prevent the user from using it commercially; in the same way you're not supposed to use a rental or shop-bought DVD to put on your own cinema?

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Don't worry…

It's there. But as usual, the fact that there is a land grab of the rights of the user in the T&Cs does not mean the land grab is legal. It goes the other way too: the absence of a copyright line does not mean something is not copyrighted!

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Anonymous Coward

Priceless

"He even bought two Wii Us, which makes him responsible for a decent percentage of global sales."

+1.

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Anonymous Coward

re: Priceless

...or perhaps I should have said 1-up?

My brain thinks of these things only after I hit submit.

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FAIL

Epic PR fail

Way to alienate your fanbase. That'll rescue the company for sure!

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Re: Epic PR fail

Indeedy, they get free advertising from the walkthroughs being put online and viewable by potentially millions without them having to pay a single penny to anyone for hosting/bandwidth/taking the time to do the walkthroughs, but now they want to be paid for those free adverts for their products...

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Anonymous Coward

Nothing new for the big N!

Nintendo have always been like this, they've never cut their fans any slack or seen fan publicity as anything more than uncontrollable freeloading and bad PR. Their exclusive license NDA deals with game publishers that are tighter than a gnat's wotnot are a prime example of how much of bunch of control freaks they are and the reason they're always number 3 on in the home console market. If MS or Sony made a real effort to release a proper handheld for Nintendo's prime handheld family market, Nintendo would be in Chapter 11 faster than you can say "Mario is a racist stereotype!".

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Unhappy

Legal opinion needed

If I buy a new car, a Ford say.

Then I make a video explaining what all the dashboard buttons do and upload it to Youtube.

Can Ford now claim copyright.?

I think nintendo have really screwed up.

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Anonymous Coward

Re: Legal opinion needed

Yes, if Ford was inclined to do so they could ask for the video to be removed or for it to be put into their revenue streams. Although it depends on the video, what is said etc

This is hampered even more when your video transcends to global markets. You might think that you are witty and loveable but in Greece your vocabulary and an innocent hand gesture may be the most insulting thing ever. Know I realise that you don't post videos to be provocative and also that you are perhaps you are not fully versed in copyright law. BUT you have ticked the box in the T&C to state that you won't infringe copyright and you will play nicely when asked to do so.

However, on this occasion I would of thought it would of been better to ask the individual to produce the video on behalf of Nintendo (if they are any good)

And yes, I know that international copyright can suck.

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Re: Legal opinion needed

"Yes, if Ford was inclined to do so they could ask for the video to be removed or for it to be put into their revenue streams. Although it depends on the video, what is said etc"

I'm not too sure.

After-all, if that was the case then surely aggressive companies could effectively censor all negative PR and reviews? The fact that they don't (because let's face it: Some would) is probably indicative.

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Re: Legal opinion needed

Surely there is a difference between a review (good or bad) compared to profiting from someone else's IP. Sadly the chap had adverts before his clips which generated profit for himself. If I had had "x" and someone was using it in a video without my permission then I would be miffed. Especially as the terms and conditions of "X" state that i cannot copy\ distribute\ use images of etc

Yes Nintendo are miffed that they are not profiting from this, but is it right? NOPE! (IMHO)

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WTF?

Well they don't deserve 100% of the revenue, as the main creative content IS the voice over and the player control, without those the walk-through would not exist.

Compare this to Lego videos, has Lego ever gone after people for making stop motion lego films?

What about Playmobile?

Nintendo MIGHT have gotten away with a small % grab, maybe 30% even, but going for all of it? that will just alienate their player base....

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Anonymous Coward

Lego and Playmobile are all about creative play - Nintendo is all about entertainment.

All the stop motion videos (even the disturbing ones) show what can be achieved if you have some imagination and are creative. Whilst providing hints and tips on Wii games is a service that Nintendo (and affiliates) already provide (for cash) So by producing a YouTube walkthrough you are taking a potential cash sale from the company.

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Linux

"With console development cycles requiring years and large sums of money, the company is almost certainly staring at an incoming tide of red ink. " -- Sadly, I think they are done for. Let's a go!

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Anonymous Coward

Youtube approached Mojang about the very same thing, Allowing the game owner to scoop revenue from all the users videos.

My admiration for decent game developers grows proportionally to my disdain for the massive money grabbers.

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Facepalm

The stupid thing is...

Nintendo can quite easily make walkthroughs themselves and market them as 'official' on their YouTube channel and take the revenue without having to piss off their customer base. They also have the advantage of being able to show where the hidden stuff/Easter eggs are.

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FAIL

Doesn't make sense

If this logic was taken to other areas it would mean that:

1) Steinway would own the copyright to all piano concerts in the world?

2) Add you own crazy case.

Surely that cannot be right!

Best regards

Steen

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Re: Aren't these videos...

> Aren't these videos just free advertising for Nintendo games?

Err, yes... And your point is?

why would a games console company want free advertising and a fan base?

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Square-Enix also doing similar

When I read the story elsewhere a week or so back (behind the times el Reg!) I told a friend who was considering doing some "Let's Play" videos on YouTube. With that information he left out all Nintendo games but did use some footage from various Square-Enix games. He told me this week that they have been matched the same way. I don't know if he meant they were taken down or if he was told they'd be taking any / all revenue.

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Zot
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WTF?

Notch tempted to do the same with Minecraft 'tubes!

[url]https://mobile.twitter.com/notch/status/335045859156819969[/url]

Greed? Probably. But what does a 'cut' mean to the uploader?

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global sales

If two Wii Us is a "decent percentage of global sales" then Nintendo have a lot more to worry about because they've sold very few consoles indeed.

Last month Wii U sales were reported at 3.45m world wide. So he accounts for 0.00005797% of global sales, which is less significant than a rounding error.

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FAIL

Somehow they got their PR backwards

Strange how companies do stupid moves that , instead of pulling in customers , chase them away.It's like they dont even have a focus group with players before they do half-as*** half-baked stunts ? To pull customers in , simply put , you don't slap the one who makes a walkthrough , you make a sticky comment " Nintendo Approves this Walkthrough " and leave the cents alone. You branded the walkthrough , giving it a medal of honor of sorts , and the player feels pride to see his work rewarded. Exit one teed off player , in comes a loyal customer that's happy to do a walkthrough for free .. Man can any of them think , count and make sense in their corporation ? Gosh . So simple , yet , they got their PR backwards.

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Thumb Up

There are a whole load of videos teaching players how to do things in the new Sim City game which feature game graphics and music - yet - as far as I know - EA haven't demanded revenue from the ads...... Maybe EA aren't quite as bad as we originally thought!

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According to: http://alloyseven.com/component/k2/item/115-monetize-gaming-videos

"EA advised me through email that they do not give out blanket permission, but they have worked with YouTube directly and generally don't mind fair use of their material even on commercialized YouTube channels. "

Not as good as some, but not as bad as others.

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Paris Hilton

Why doesn't Nintendo

Just make their own walkthrough vids then? There appears to be demand, why not supply it?

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Re: Why doesn't Nintendo

Presumably because then they'd have to actually put real effort into the endevour.

Why not just use the hard work of your customers instead?

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I'm no lawyer, but I'm fairly certain what Nintendo's done here won't stand up if challenged in a US court. I would think it would fall under the same legal doohickey (technical legal term, I'm sure) that allows reviewers to show scenes from movies they're reviewing. After all, a video of a game offers a very, very small portion of the total experience.

Then again, I'm no lawyer. What do I know?

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