Experienced Points: Nintendo Wants Its Cut

By Shamus Posted Tuesday May 21, 2013

Filed under: Column 137 comments

Nintendo thinks it should get all money from video series that use footage from their games. And here is what I think about that. Below is the full Nintendo quote. Emphasis mine:

For most fan videos this will not result in any changes, however, 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. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.

They really have no concept of how this works. Their perceptions are so distorted that they think they’re being generous.


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137 thoughts on “Experienced Points: Nintendo Wants Its Cut

  1. BeamSplashX says:

    The folks from Retsupurae did mention that if you were interested in just showing off a game because you think there’s something worthwhile about it, nothing’s really changed for you (unless you didn’t run ads on your video before). I think there’s still a lot of credit to that idea.

    Then again, Game Grumps make pretty solid money off their videos. Even if their personalities override what they’re playing, I’d hate to see them lose the jumping-off points provided by Nintendo games. But their Google Doc listing all their games means they could never touch a Nintendo game again and still have fresh material for, well, the rest of their lives, so they end up being an exception anyways.

    1. Jabor says:

      Ultimately this isn’t going to do anything about small-timers who just want to show off a game that they enjoy. Those people weren’t really making any money from their LPs whatsoever – many of them probably haven’t even qualified to monetize any videos in the first place. And so unless they have a weird philosophical objection to ads appearing on their videos, it won’t stop them from doing any Let’s Plays.

      This move is aimed squarely at the “big name” channels that monetize heavily, the channels that are more about the personalities of the hosts than the games they play over. Interestingly, these channels probably don’t do much to motivate game sales – and it’s not like Mario is a small indie game that just needs more exposure so that people know it exists. So I don’t see this move hurting Nintendo much.

      It’s interesting to see where the outrage is coming from in response to this move – primarily it’s coming from the aforementioned big-namers who see it as a threat to their business model, and from there it trickles down to people who get convinced that they should be somehow outraged but don’t really see how this affects them.

      1. Winter says:

        I don’t think objecting to Nintendo dumping ads on top of my just-for-fun LP of a game would be a “weird, philosophical objection” :)

        I mean, maybe i don’t care, but if i did i think there’s a reasonable case to be made that Nintendo is doing something stupid here.

        1. Felblood says:

          My friends and I put together some stuff that was never published for related unrelated reasons (team members moved away for work).

          If the publisher of the content we featured had copped a similar attitude, several team members would never have considered starting.

          While we’re nobodys now, those members had dreams of someday building a following and maybe putting up some unobtrusive ads. –A little extra fund to cover game night pizza or something.

          This move would cut the legs off that in two ways:

          1. Nintendo be stealin’ my pizza moneys, anyway.

          2. You can’t build a following if you drop ads out of the gate. This is the internet, and you need to turn a person into a fan before they will consider adding you to their adblock whitelist.

          100% serious: if an ad appears in a video before it has grabbed my interest, I have other youtube videos in other tabs that I will watch instead. There is just too much dross in the tubes to waste time on someone who is willing to waste your time.

    2. Steve C says:

      Kids and teens receiving their first threatening email from Nintendo aren’t going to feel like it doesn’t really apply to them. That’s not what they will be thinking about so if it applies to them or not, it won’t matter. Customers are going to feel betrayed and resentful towards Nintendo. They will lash out. There’s no upside here.

      1. Zukhramm says:

        No one is going to get threatening e-mails.

    3. Zukhramm says:

      I don’t mind them saying you can’t make money off a let’s play. What’s wrong in my mind is them saying they can make money off of them.

    4. ENC says:

      ‘Then again, Game Grumps make pretty solid money off their videos.’

      Because they release 2 videos a day that total up to 20 minutes and have no discernible order to their system either.

      TB also rants for 45 mins or so on his opinions and gets paid to glance at a game in a ‘first impression’.

      Two Best Friends pretty much laugh at terrible games (or poop themselves in the shitstorm of scariness) for 30 minutes a day, give or take.

      Yet they all make wildly different amounts of money; Game Grumps combined the most and Two Best Friends the least.

      Kind of an odd industry.

  2. Tobias says:

    I do actually think that everytime a game company clarifies its stance on LPs it will be good for LPs in the long term. No matter what that stance actually is.

    If they give good terms, there will be more LPs of their games, and LPers who do need the money will flock to them.
    If they give bad terms then LPers who care about legality will avoid them.

    The current legal limbo is actually worse for the LPers than everyone adopting Nintendo’s stance.

    So in closing, I do applaud Nintendo for actually taking a clear stance towards LPs. Even if they made some bad choices as to what to demmand.

  3. Mark says:

    The interesting part about this, to me, is not the business or copyright elements, but the artistic implications. Nintendo is in effect asserting that making a Let’s Play video is inherently a collaborative process between the player and the creators of the game. It’s sort of like how old games used to put “AND YOU” at the end of the credits, only in the reverse direction.

    In copyright terms they’re declaring that an LP is comparable to the publication of an annotated version of a book, or the performance of a play – both the author and the performer receive credit, but the original creator, able to unilaterally veto the performance, gets to set the terms. Taken in that light, splitting the ad revenue would be more equitable. On the other hand, this is the internet, a hyper-accelerated breeding ground for new business models: perhaps it will turn out that LP producers are agile enough to survive on the alternative revenue streams that Nintendo is not legally permitted to touch. The analogy there would be to a movie theater: the box office take (ad revenue) goes to the studio, while the concession stand profits (everything else) go to the theater.

    1. AEG says:

      both the author and the performer receive credit, but the original creator

      With non-indie video games, isn’t it more like the whole project is work-for-hire with no (or few) rights given to the creators (i.e. the whole team), with the patron (publisher) claiming the rights to the work?

      A dispute over the rights of the material used in an LP seems to be less of an asynchronous collaboration than a pissing contest from the rights-owner (not the “author”) who insists, “Mine! Mine! Mine! I paid for this! How dare culture try to co-op my property without my input?”

      This isn’t true for all videogame works, naturally, and the legal ramifications have been discussed already. But the answer to the question of “who is the author of this work” gets really murky, especially if one expects to get an individualized response on an issue such as, “are you okay with what I have done with your work?” How about if we ask the rights-holder this same question? How do we feel that the rights-holder gets to veto the author’s opinion?

      We have situations like Danger Mouse’s Grey Album in which EMI tried to stop its distribution for using Beatles samples, while Paul McCartney went on record as supporting the project. So, just all-and-all accepting the opinion of the rights-holder as the opinion of the original “creator” rubs me the wrong way.

      1. Mark says:

        Nintendo, at least, prominently sticks the notice “Nintendo is the author of this software for purposes of copyright” on everything developed by one of their internal studios, so in those cases they’re definitely asserting authorship as well as IP ownership.

        Obviously it is a murkier situation for things they publish but which are developed by a second- or third-party studio.

        1. anaphysik says:

          That completely ignores AEG’s point, which is that the *real* creators (programmers, artists, designers, etc.) are rarely even remotely synonymous with the rights-holders <_<. (Although for large productions that's admittedly infeasible. Hence ‘non-indie.’)

          (Remember, we’re not talking laws, we’re talking ‘should be’s. Also, about being a dick vs not being a dick.)

  4. swenson says:

    You mentioned that big channels will simply stop posting Nintendo videos, and I think that’s quite true–I watch most everything Achievement Hunter creates, and Geoff has already said that they likely will not do any Nintendo games in the future because of this.

    EDIT: I kind of forgot to put in my conclusion from this: I think you’re entirely correct that this will not actually do anything. The big channels are mostly diverse enough already to drop Nintendo games without it being a problem (as illustrated by the AH example I gave), so Nintendo will make no money off it. On the other hand, small channels will be choked out, so Nintendo will also make no money off of them.

    In short, no one will be making money, and no one will be making Nintendo-related videos, so it’s basically a lose-lose for everyone involved.

    EDIT EDIT: Also, in IE8 (work-mandated, I swear!) I’m getting an error message popping up saying “Stack overflow at line: 3” every time I click the edit link.

    1. Paul Spooner says:

      Well, it might be a win for Nintendo, but only if there were a large number of people who would watch pro-videos and then not buy the game when they would have otherwise bought a copy. Unless those same people just go to non-professional video channels, and still not buy the game. It would be interesting to see their sales numbers, but let’s be honest, the effect is going to be drowned in the noise either way.

    2. Rosseloh says:

      Would you feel better if I mentioned that my previous employer only switched from IE6 to IE7 a year and a half ago?

      1. Thomas says:

        They switched to IE7? Why would you even do that

        1. Scourge says:

          I can make you feel even better. My employer (Government) is STILL using IE7. Even though we are on Windows 7 (Kind of Ironic in retroaspect. IE7 for Win7).

          There are also no plans to upgrade any time in the future.

      2. swenson says:

        You poor thing. I just found out in a meeting the other day that we might be upgrading to IE9! It’s the highlight of my week so far.

  5. Thomas says:

    “unlike other entertainment companies”
    That part of the Nintendo quote really bugs me. They must know it is completely avoiding the point and spinning things almost to fabrication. Posting films online is something completely different and since exactly 0 of their competitors do anything negative towards LPers it’s entirely irrelevant.

    They must know that, else they’re even more out of touch than people joke about

    1. Syal says:

      Apparently Sega took down a bunch of Shining Force videos, so there is one videogame company that does it.

      1. Winter says:

        Wow, really? That’s sad, i really loved the Shining Force games and always wondered why there weren’t more LPs of them :(

        1. Felblood says:

          Oh, I guess I’ll never know how they ended then, since I have no idea what happened to the copies I played as a kid, and am not going to start over now.

          How is Square on FF2 Let’s Plays?

          I was almost at the end and that game was grindy as all crap.

    2. swenson says:

      They seem to have missed Microsoft’s Game Content Usage Rules (it took me far too much googling to find the name of that policy), which explicitly allow derivative works or “display” of game content so long as you aren’t making money off it, or how Valve actively encourages derivative content (Steam Workshop, making mods available on Steam, SFM, the recent community-made update for TF2…), or people like Notch explicitly saying he has no problem with Minecraft videos and whatnot.

      They are hardly the first company to address the concept of people using game content to make things. They’re just the first to address it in such an incredibly stupid way.

      1. Jock says:

        So…actually, it seems that Microsoft’s policy and Nintendo’s policy are the same, at least as far as professional LPers go. Nintendo’s fine with derivative content as long as you don’t make money off it, they’re just taking compliance out the hands of the End Users and getting Youtube to do the enforcement automatically for them.

        1. anaphysik says:

          “Nintendo's fine with derivative content as long as you don't make money off it”

          Not according to the quote. They’re fine with it /existing/, but not without it also making money for Nintendo. (“[F]or 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.”) Adding adverts to vids without adverts is NOT a trivial change.

          1. Jock says:

            Which is why I qualified it with ‘As far as professional LPers go.’ If there were no ads then they weren’t making money from it anyway, and they would no longer be ‘professional.’

            1. anaphysik says:

              My comment was in reference to the second part. I consider those two stances substantially different. “You can’t make money of of this” vs “/We/ have to make money off of this.”

              1. Jock says:

                …I agree? But the original article was discussing how denying revenue to LPers was harmful, and in that sense Nintendo’s TOS is no more onerous than Microsoft’s.

                While I’m sure I’d be annoyed if I wanted something to be ad-free but ads get put on it anyway (because it makes a poorer viewer experience), I’d be outraged to the point of content creation boycott if I wanted to put ads on something but couldn’t for whatever reason (because it makes a poorer ME), which was the point of the article.

        2. Phantom Hoover says:

          Sorry can we not start repeating this myth that Notch is some kind of benevolent indie saint with a live and let live policy about his game? He didn’t want people making mods at all for a long time, he kept obfuscating his .jars even after he’d started using modders’ code to patch over his own shitty engineering, he insisted on forcing you to verify with Mojang’s servers to play online even when his authentication servers were going down every other hour. He’s not a great role model.

          1. swenson says:

            I’m not saying he’s perfect or even that he’s very good in this case, I’m saying that Nintendo acting like they’re the first people to ever address the issue is stupid–and Notch at least has never said anything against LPs.

          2. Zukhramm says:

            Notch obfuscated his jars, therefore we shouldn’t like being allowed add money from Minecraft videos?

  6. chiefnewo says:

    On the contrary, they know exactly how copyright law works. Broadcasting a playthrough of a game might not be 100% the same as broadcasting watching a movie, but you’re still relying on another company’s copyrighted works to provide the massive bulk of your production.

    1. Shamus says:

      I never claimed they didn’t. In my article I specifically said that copyright law doesn’t matter to this discussion. It doesn’t matter if they have the RIGHT to do this. They have the POWER to do it, and it’s a horrible idea. This system is mediated by YouTube. Arguing over copyright law is a waste of time because this isn’t going to end up in court.

      1. chiefnewo says:

        Fair enough, my apologies for not reading the article first. You’re right that it’s not going to end up doing anything but getting people to play other games on Youtube. Nintendo would probably argue that they already have an advertising department. I’m curious how well you could show off a game that uses the Wii U controller on Youtube without some horrible camcorder recording.

        Maybe Nintendo should just enable ads on their older games that aren’t being actively sold. Then the “Youtube superstars” get to make bank while advertising Nintendo’s latest, but Super Mario World LP #437892478 doesn’t. Probably a lot more effort than its worth however.

    2. Michael says:

      Just curious: if I were to buy a copy of Settlers of Catan, and videotape the gameboard while myself and my buddies played a game of it, would you consider Catan GmbH (the company who makes Catan) to have a claim on that video? If not, what do you consider to be the difference?

      Would that change if it were a D&D module?

      PS, If you want a better analog to modern linear FPSes, use Candyland and Hasboro instead.

  7. CoyoteSans says:

    Nintendo has always been a control freak regarding it’s products. If you’re not buying and consuming the consoles and games EXACTLY as they intend for you to, you are A Bad Person and must be punished.

    The real danger (and what I suspect Nintendo hopes will happen, unrealistic as it may be) is that the other big game publishers will issue identical policies. The resulting collusion will effectively end professional LPing without “dirtying” their hands, and the consumers will return to buying and playing the games as God intended.

    1. GM says:

      so they only lp and review indie games?

      1. topazwolf says:

        Indie games are the only LPs (other than Spoiler Warning which is not really a Let’s Play) I ever really watch. I even tend to buy an indie game if I like it’s LP. Net effect, I’d be perfectly fine with that business model.

        On the other hand I might watch a bit of a AAA LP (chances are I wouldn’t want to watch an entire LP) and like it enough to buy it. This has also happened with me. Therefore big companies would lose my business since I get the majority of my gaming news from either youtube or twentsided, but I prefer to support indie developers anyways.

    2. microwaviblerabbit says:

      From a legal perspective, Nintendo have just written themselves into the contract from hell. By adding ads to a lets play video, and profiting they are giving implicit approval to the content of that video. Worse, if the video contains illegal content, Nintendo would be criminally liable as they could not argue plausible deniability.

      Nintendo has always been a control freak because it is the only game company that trades on a reputation for being appropriate for children. Pokemon, Mario, Zelda are all games nearly universally approved of by parents. Now imagine Nintendo going through something equivalent to the Hot Coffee scandal.

      By having bots place ads, the company will inevitably profit from something illegal or brand destroying. Maybe someone will post a dog fighting – Pokemon mash up. Maybe it will be some sort of porn. Maybe it will be earning ad revenue from copyright infringement. And in each case the company will be liable, having earned a profit from the content.

      It is a terrible legal arrangement. Even if they write in stipulations protecting themselves, they are still criminally liable. It is why every other company ignores or shuts down LPs instead of trying to profit.

    3. Scourge says:

      Not Paradox Entertainment, no they won’t: http://cheezburger.com/7471044352

  8. Taellosse says:

    See, now this strikes me as a far more compelling argument as to why Nintendo should not be doing this than “let’s plays are fair use.” While a court hasn’t ruled on them specifically, my own inexpert legal instinct is that they really aren’t – much as quoting entire chapters from books, rebroadcasting entire scenes from television, or covering a song without permission, a let’s play strikes me as, at best, legally dicey. I’ll freely acknowledge that copyright law is a mess in many ways, but this bit of it doesn’t feel that complicated to me – appropriating large portions, or all of, someone else’s IP without authorization for your own purposes is, legally, infringement.

    But the far more practical question of “does allowing it harm the holder?” is a far more nuanced question. And you make a strong argument that, on the contrary, this form of infringement does quite the opposite.

    It strikes me that this action by Nintendo arises from thinking very like that of the various media conglomerates to digital piracy. They all look at every instance of their IP “stolen” in torrents and the like as a lost sale. Similarly, Nintendo sees all this time people spend looking at “their” content as effort that could have been expended on actually playing the game (and, by extension, buying it from Nintendo first). In both cases, they fail to account for the fact that many of these “lost sales” are phantoms – they either already have (or soon will) buy the thing, or never will, regardless of what you do to try to alter their behavior.

    ETA: Wow, Shamus, your comment moderation software really hates me. This is, like, the 4th time in a row I’ve been dumped into the moderation queue in the last few days alone.

    1. Brandon says:

      I’m fairly certain that Shamus’s moderation system just automatically grabs posts over a certain length.

      1. Dirigible says:

        I’m not so certain – I don’t think I’ve ever had a comment not in moderation, and I’ve left posts of both long and short lengths.

        Case in point: this comment is being moderated as well.

      2. Mephane says:

        My experience is that it triggers on specific words and topics. “DRM”, for example, seems to automatically trigger the moderation queue, it might have been “torrent” in the above case.

        Edit: Heh, theory disproved by immediate availability of this very comment.

      3. Taellosse says:

        Pretty sure that’s not the case. I’ve written novellas that got posted right away, and 3-sentence comments that got moderated. I think the idea that it keys off of certain flagged words or phrases is more likely. I just don’t know which ones. And apparently neither does Shamus, since he’s told me himself he doesn’t know how the plug-ins he uses work, exactly.

        1. Felblood says:

          Other than my very first few, the only comments that I’ve had held for moderation were either references to Dwarf Fortress or contained hyperlinks.

  9. SougoXIII says:

    Nintendo is so out of touch with the currently generation, it’s downright laughable. One just need to own one of their hard wares to find out. Their online store’s a joke, they don’t have an account system (on the 3DS, I’m not sure about the Wii U since I don’t own it) so you must pray to whatever deity you believe in that your system don’t get damage, lost… or otherwise say good bye to all of your digital purchase. Also let’s not forget their region-lock policy which is a great joy for all us European out there…

    One would think that the Wii U’s performance would be the kick up in the ass Nintendo needed to get their head out of their archaic business model. However, I doubt Nintendo will ever learn because as long as they have Mario, Zelda, Pokemon etc… they’ll survive. That’s a sad thing to hear.

  10. Henson says:

    I’m not convinced that Let’s Plays don’t take away from sales. It seem like it would depend on the game and the community.

    For instance, I think we can all agree that Giant Bomb’s endurance run of Persona 4 put that game into the conversation and spiked sales. And I would think the same for many other games, too. But would an LP of Dear Esther do the same? Would Gemini Rue? Would Bioshock: Infinite? The more story-based games and interactive fiction (at least, the ones in which player choice has little effect on the narrative – Mass Effect probably would not suffer) seem like they would have the same qualities as watching a movie; once you’ve seen it, you’re done.

    Of course, most of the above is kinda moot here given the economic realities of Nintendo’s actions (and given the types of games Nintendo has on their consoles), but I feel like the situation isn’t quite clear-cut, either.

    1. swenson says:

      I can’t speak for everybody, but I can say that for myself, there has never been a game I was going to buy that I didn’t buy because of a Let’s Play. Indeed, there are multiple games I’ve bought because of Let’s Plays–Magicka and Minecraft, at least, off the top of my head.

      1. topazwolf says:

        I agree. I even watched the first episode of the Walking Dead game and decided to buy even though I knew what happened. Most of my library, indie and AAA alike originated in Lets Plays.

    2. Vegedus says:

      I agree. I think it’s very possible some people will watch a LP with the deliberate attitude that “if I watch this LP, I won’t have to buy the game”. If you can have most of the experience by watching it for free, which will be the case with some games, then some cost-conscious customers are gonna do that. Hell, some games have very tedious gameplay, but interesting story/graphics/whatever and factoring in a good LPers personality, it can easily be more fun watching a game than playing it.

      This doesn’t invalidate Shamus’ points though, and I’d guess that the it’s still gonna be a net gain in most cases, but I just don’t think it’s completely black and white.

      1. Lame Duck says:

        The thing is “if I watch this LP, I won’t have to buy the game” doesn’t sound like the thoughts of someone who was especially interested in buying the game in the first place.

        1. Thomas says:

          I’ve heard lots of people say they decided to watch an LP rather than play the game, it definitely happens.

          It’s probably not a 1 to 1 ratio of conversion but I bet these aren’t the people who wouldn’t buy the game anyway. They’ve clearly got a desire to know about the game and look inside the mystery box, they aren’t stumbling across a Let’s Play and watching it, a part of them wants resolution and they’ve actively sought out a means to get that resolution. If they were denied release, they’d still want resolution anyway and some people would bite it back down and other people would let it gnaw at them until they go out and buy the game.

          It’s one of the reasons why demos decrease the sales for a game (even for good games). Even playing a little fraction of the game can satisfy the curiosity that casual conversation and advertising brought up

          1. Aldowyn says:

            To be totally honest, that ‘if I watch this LP I won’t have to buy the game’ REALLY irritates me. Proving the detractors right :/

            Some people were telling me that I should just watch an LP of Leviathan (The ME3 DLC), but I refused and eventually just bought it the last time I went through ME3. (Actually I think it mitigated the ending.. slightly.)

      2. The Rocketeer says:

        Even story-heavy games aren’t necessarily endangered by LP’s. I know from experience!

        I had seen NieR sitting on shelves for a while, but I can honestly say I would never, ever have bought it or even checked the back of the box… until I saw The Dark Id’s LP of the game. Understand, even from the perspective of someone who loved the game, it was unflinchingly described as a game whose actual gameplay was merely serviceable at best of times, while the game’s real draws were its characters, narrative, setting, and music. ALL of which I could (and did!) get from the LP.

        But you know what? I fell in love with it. Even after knowing the long and short of basically everything worth seeing in the game, I bought it anyway, played the crap out of it, and I’m overjoyed that I did, because just knowing it in an academic sense couldn’t have ever compared to experiencing it firsthand; games exist to leverage the player’s interaction, and that goes for more than just the gameplay. If a game really can blow its whole load just by being observed secondhand, it already failed to deliver on its raison d’ଙtre.

        (Dark Id wasn’t kidding about the gameplay of NieR, either; it was kind of pretty bad, to be frank. But I still loved that game to pieces, and it remains one of the only games I bothered getting all the cheevos for, and let me tell you, you have no idea how aggravating some of those cheevos were.)

    3. JRT says:

      Actually, Shamus himself did just that–he used a Let’s Play to avoid getting some Bioware DLC. In a Twitter, he said he watched a Let’s Play of Mass Effect 3 DLC because he didn’t want to pay $10 for it.

      I kind of hope YouTube starts putting content filtering up so that you can’t watch a game online–maybe you can do a commentary track but at the very least lets prevent people from simply watching the games. If we’re going to get to that point where people watch the games for the stories alone, let them rent it for the price of a movie.

      1. Peter H. Coffin says:

        Because “pig in a poke” is always a better marketing strategy?

      2. Kian says:

        But as you said, he didn’t want to buy the DLC, and so he watched the LP. He had already decided not to buy the DLC before he watched the LP. So watching the LP simply satisfied an itch he wouldn’t have indulged otherwise.

        I’ve watched every Halo4 cinematic on youtube to find out what it was about, because I don’t own an xbox and I’m not going to ever play an fps with a controller. I bought The Walking Dead after watching the first couple of episodes here because it looked like fun (great purchase, too). And I’ve avoided all mentions of Mass Effect 3 DLC because I still haven’t forgiven them for the ending (after playing about 400 hours between the three games combined and buying several ME2 DLCs). And I also enjoy watching LPs of games I’ve finished to see what other people have to say and join the conversation.

        In my experience, there’s no correlation between wanting to buy a game and wanting to watch LPs of the game. The thought of “Now that I’ve watched the game, I don’t want to play it” seems counter-intuitive. I do find that watching LPs is more likely to make me want to buy a game I wasn’t interested in (if someone I regularly follows starts playing it, as happens at this site).

        1. JRT says:

          You miss the point he decided not to buy it because it was “overpriced” and that he could watch it for free on YouTube. The proper thing to do if you don’t want to pay for something is GO WITHOUT.

          So yes, if Let’s Plays are solely being used to show game content, I think they should crack down.

          Others have admitted doing this. I do think this is something game companies will have to take a look at.

          1. krellen says:

            I’m pretty sure that it wasn’t “overpriced”, because he probably wouldn’t have wanted the DLC for any price greater than “free”.

            1. Asimech says:

              Whenever I feel like a Lets Play focusing on showing game content is “good enough” replacement for actually playing, the subconscious price I have for the game is “nothing and even then I’m unlikely to actually play it”.

              The only exception is when I’m watching the LP to find out if the game has what I feel is a very likely deal breaker. In which case the options are:
              a) I find an LP & figure it’s worth it (sale)
              b) I find an LP & figure it’s not worth it (no sale)
              c) I don’t find an LP of any kind, or too low quality and decide that the risk is too high (no sale)

          2. Kian says:

            You still contradict yourself though. If you believe something is overpriced, you have already decided not to buy it. Otherwise, you would consider it expensive. And he decided it was overpriced before he looked for it in YouTube. Had the video not existed, the DLC would still have been overpriced.

            And he did go without, he didn’t pirate the DLC. He didn’t play the game.

            As for the issue of LPs in general, I’m not so sure. It’d be like LEGO adding advertisements and keeping the revenue of videos of people building things with their blocks. After all, they created the blocks, so every conceivable shape made of those blocks is theirs.

            And this example is relevant, because as was reported in some places, Minecraft’s creator had exactly the same grounds to claim ownership of every Minecraft video. He chose not to, but something is messed up if he even had the possibility.

          3. Aldowyn says:

            To me it’s exactly the same as a pirate saying ‘well I wouldn’t have bought it anyway’. If you’re not willing to pay the price for something, even though you could, don’t. Going into an LP expressly so you don’t have to or need to buy a DLC is just not cool.

            1. Kian says:

              First, let’s make a point perfectly clear: Watching an LP is in no way the same as playing a game. Games are not movies, no matter how much some publishers might want them to be. They have story elements, but that is only part of the appeal.

              I don’t have to buy a car of a certain color to see if I like the car in that color, I can go online and look at pictures. I don’t have to avoid all spoilers of every work of fiction I haven’t bought, if I don’t care enough about experiencing the work in the way the author intended I can look up a synopsis. And if I don’t care about a game, I can still look up the story in an LP.

              Should I not go to a friends house and watch him play a game then? Real story: a friend of mine recently finished Heart of the Swarm. I don’t care to play SC2, but I was curious about the story. So I watched him play most of the campaign. Should I have avoided my friend when he played, and not spoken to him about the game later?

              Actually, now that I think back, I tried to buy the game after watching him play. I couldn’t because I once opened a battle.net account and they have since locked it up so tightly that I couldn’t prove I was the original owner of the account. Ended up not buying the game, after wasting an hour or so trying to clear the mess up. I wasn’t about to open and maintain a new e-mail account just to pay them for a game I wasn’t so interested in.

              1. Winter says:

                First, let's make a point perfectly clear: Watching an LP is in no way the same as playing a game. Games are not movies, no matter how much some publishers might want them to be. They have story elements, but that is only part of the appeal.

                Counterpoint: Asura’s Wrath is actually better to watch than play!

            2. Zukhramm says:

              It’s pretty cool for my wallet.

          4. Shamus says:

            The thing is, I DI go without. I didn’t play it.

            Should I be allowed to ask someone what’s in the DLC? Because that’s all I wanted. Watching the LP was simply the most expedient way of doing so.

            LPs are simply an extension of the conversations we have about games. It’s a way we discuss games on the internet. Sometimes I talk about a game with my friends and they convince me to buy it. Sometimes they convince me to avoid it.

            Ask yourself: Would the games be better off, or worse, if the conversations never took place?

          5. Zukhramm says:

            Where’s the line then? I’ve experienced countless things I have not paid for. Food, furniture, gifts, borrowed DVDs.

            Where is the line? If playing a game you didn’t pay for is wrong, and watching a game you didn’t play is wrong, is reading a synopsis written by someone who played it also wrong?

    4. Trithne says:

      La-Mulana thrived because of Let’s Plays. They actually put Deceased Crab and Madamluna in the remake’s credits as acknowledgement for how much their LPs helped the original game gain attention.

    5. Felblood says:

      I got Bioshock 1 because of Spoiler Warning.

  11. Adalore says:

    ARguh, I heard about this and it actively hurt.

    Marketing isn’t a black magic guys.

  12. Raygereio says:

    They really have no concept of how this works. Their perceptions are so distorted that they think they're being generous.

    I’m a big fan of the saying “never mistake malice for stupidity” and I would normally have agreed with you. But in this case I think your quote is nothing more then the PR spin. I say Nintendo is perfectly aware they’re going to look like dicks.

    That said; while I agree that it’s not the best PR move from Nintendo, I’m having trouble working up the motivation to grab the torch and pitchfork.
    It’s not your right to make money of content that ultimately isn’t yours. More importantly: Youtube’s ToS is pretty clear on the matter:

    Whether you can use video game content for monetization depends on the commercial use rights granted to you by licenses of video game publishers. Some video game publishers may allow you to use all video game content for commercial use and state that in their license agreements. Videos simply showing game play for extended periods of time may not be accepted for monetization.

    So not only is making money of LP’s not quite legal, it’s in violation of youtube’s Terms of Service.

    If not getting ad revenue from your LP videos stops you from making LPs, then that means you’re just interested in getting money from it. If that’s the case: get a real job. Or to make myself sound less like a cane-swinging old geezer in a rocking chair: Think very hard about the long-term viability of your source of income.
    Heck, if you desperately want to dodge Nintendo’s legal right to a slice of the pie, you could always contact their branch office and work out a commercial footage license like any other gaming media outlet that works with video.

    1. Shamus says:

      “If not getting ad revenue from your LP videos stops you from making LPs, then that means you're just interested in getting money from it. If that's the case: get a real job”

      If you expect to be paid for writing music, then get a real job. If you loved music you’d do it for free.

      At any rate, your suggestion misses the point: These people DO have a job. Their job is making LP’s. They make a living at it. Is that not “real” enough for you? You can say this about any creative person: Novelists, musicians, painters, street performers, poets, bloggers. The blog you’re reading now exists because I don’t have one of those “real” jobs you’re talking about, and this gig brings in enough to justify the time I put into it. If you took away the money I made at this, I’d have to do something else because people need to eat.

      I’m not in this for the money. I’m in this because I love it. If I wanted money, I’d do something ELSE. However, this does need to generate a bit of money or I can’t do it.

      And as I said elsewhere: This is beside the point: Nintendo won’t get any of this LP money, they’re just making it so that nobody will want to discuss them or their products.

      1. Raygereio says:

        The “get a real job” comment was said in jest. I thought that was obvious with the sentence after it. If I offended you with it, I apologize. Please pay no attention to the failed joke behind the curtain.

        You missed the important bit though. I also said: “Think very hard about the long-term viability of your source of income.”
        Is recording yourself talking over videogames footage really a viable means of income that can support you? Sure, they made real money of it. But again: it’s against youtube’s ToS and isn’t exactly legal.
        The people who made LP’s their main source of income should have realized that the rug could easily be pulled from underneath them and they would be left with nothing. The crucial difference between these Youtube Superstars and your list of creative persons (including you) is the former is depending on something illegal.

        And as I said elsewhere: This is beside the point: Nintendo won't get any of this LP money, they're just making it so that nobody will want to discuss them or their products.

        Honestly, I don’t know about that.
        Maybe, but I think it’s far more likely the outrage will have died down after a couple of months tops and people will continue on as they’ve always have done.

        1. Shamus says:

          Yeah. I totally missed the jest.

          I’d seen the point made earnestly a few times since the discussion began, and I was starting to feel like I ought to respond to it. And then I did. To someone who was kidding.

          As for the outrage dying down:

          Sure it will, but imagine I’m producing a video. Maybe something like Errant signal, where I need footage from many different games. Technically, Nintendo’s rules only affect videos over a “certain length”. But how long is that? Does my video qualify? If I use this footage of old Donkey Kong while I’m talking about 80’s games, will that set off the automatic content detector? Maybe I should just use asteroids instead, just to be safe.

          Hmmm. I want to talk about console exclusives. It would be easy to put some Mario footage in the background, but I don’t want to risk getting flagged. I’ll use Solid Snake instead.

          I want to talk about platformers for 15 minutes. I’ll avoid discussing specific Mario titles so I don’t have to worry about my video getting flagged.

          I know from experience that the YouTube content ID is dumb as a rock, ignorant of context, overly sensitive, and that warnings are threatening and troublesome hassle. Just the threat of it is probably enough to encourage people to shift the discussion elsewhere.

          I can’t prove it, of course, but as someone who’s made videos it makes a lot of sense to me.

          1. Raygereio says:

            I know from experience that the YouTube content ID is dumb as a rock

            I hadn’t concidered that. True, the well justified fear of youtube’s batshit insane system is an important factor.
            I guess wether or not people will continue on as normal will depend on how much collateral damage (for a lack of a better term) there will be.

        2. Daemian Lucifer says:

          “Is recording yourself talking over videogames footage really a viable means of income that can support you? Sure, they made real money of it. But again: it's against youtube's ToS and isn't exactly legal.”

          So all the actors in the beginnings of film industry that had to work for pittance and fight for better wages shouldnt have done so?Their struggle was pointless because there were no laws about the industry,and their bosses could do whatever pleased them?

          1. Steve C says:

            But again: it's against youtube's ToS and isn't exactly legal.

            Laws are not universal. They are based on jurisdictions. For example a LP video such as Spoiler Warning* is definitely legal in Canada. And youtube’s has different ToS based on location. Plus ToS are not necessarily legal just because they are written out in legalese.

            Do they have the power to do this– absolutely. And really that’s the only thing that matters. But to say such and such is illegal in a world wide context is simply wrong. If a broadcast is legal in just one place in the world then there would have to be a separate law to make it illegal for you to watch.

            *Including specifically the the Heavy Rain one that Shamus had all sorts of youtube problems with.

      2. chiefnewo says:

        “If you expect to be paid for writing music, then get a real job. If you loved music you'd do it for free.”

        I you expect to be paid for writing music, then don’t do it by recording yourself singing over someone else’s song. Actually, now that I think of it that’s what a lot of people seem to do. Never mind.

        1. BenD says:

          This whole thread seems to be ignoring the concept of fair use. Satire, review, and academic commentary all generally fall under fair use. Many LPs (though I’m sure not all) fall into these categories.

          In a world where copyright law was applied properly and YouTube’s actions only applied that law instead of kowtowing to giant companies who just want to beat down the public voice, those LPs would be a very reasonable long-term source of income (making the assumption that watching internet videos and playing video games are pastimes that aren’t going away soon).

          That is not this world, but I find it hard to sneer at people for acting as though that’s the world this should be.

          1. If I may go off on a tangental rant: Fair use is SO broken in our justice system.

            I design silly t-shirts as part of my “day job.” I’ve done some pretty iconic ones, if you look over at Offworld Designs, if I do say so myself. What you won’t see there are my Doctor Who based designs. Why? Because we got cease and desist orders from BBC lawyers when our shirts were being sold at conventions. The BBC holds a trademark on anything with a police box in it (apparently in the UK, you can purchase what is, in essence, a publicly-funded design as your own). I did a version of the old NASA “meatball” logo with “TARDIS” rather than “NASA” across the graphic. The comet had a VERY tiny box-shaped thing with a light on top. It was C&D’ed. Also hit was a venn diagram shirt as well as a shirt that looked like a monopoly “Chance” card that let you “get out of death free” twelve times via regeneration.

            All of these shirts fell squarely under parody laws. The problem? We can’t afford an active defense. Also, I’m of the opinion these lawyers attend comic conventions (like San Diego) as business expenses just to pass these slips of paper out, as they do nothing about the many thousands of designs that come out of Shirt.woot and other such places. Further, Britain has no parody laws, so that raises more questions.

            Anyway, the problem here is that no matter the law, most of the time the winner is those with the most money to blow on lawyers. Unless you get some backing from a legal defense fund or become a cause celebre, you’re pretty well hosed when a megacorp decides they don’t like you doing something, even if it’s legal.

    2. Corpital says:

      So Nintendo has publicly stated, they are going to violate the ToS by cramming ads in front of gameplay videos and Youtube happily agreed? Lovely.

    3. Blake says:

      “Videos simply showing game play for extended periods of time may not be accepted for monetization.”

      LPs aren’t ‘simply showing game play’, they’re adding commentary.

      1. Syal says:

        Agreed. That sentence is basically just excluding Longplays and speedruns (I assume). The quoted paragraph in fact seems to be stating that you can make money from LPs.

        1. Hydralysk says:

          Would speedruns even count though? It’s hardly a real representation of the product since any story aspects are skipped, as well as any non-mandatory areas. I would hardly say I actually experienced Deus Ex if I’d just watched that insane speed run that Shamus posted awhile back.

    4. Just Passing Through says:

      It’s not legal to make money without a license. That bit is why groups such as Machinima and TGS exist, they work out deals with the publishers so all their channels can monetize their videos legally.

      1. MrGuy says:

        Which makes an excellent reverse case against Nintendo, actually.

        If they go through with this, and without your consent place ads in your videos, and take the money, then they’re monitizing YOUR contribution and creative content without a license. Which is illegal.

        Of course, as Shamus pointed out, this almost certainly won’t end up in court, and YouTube is much more likely to be OK pissing you off than pissing Nintendo off, so you lose.

        But the argument really CAN cut both ways, and probably should…

        1. Scampi says:

          Since I heard about Nintendo’s new policy I couldn’t help wondering, how this could even happen.
          Why has nobody thought of a LP as advertisement for the product at all? If a TV show hands out prizes to people (e.g. a washing machine?), the prizes use to be corporate sponsored, so people know about that awesome company who is so sure of their product’s quality that they’ll hand some to random strangers, being sure that millions more will afterwards buy them because of the PR they get from that. Not the company producing the prize gets paid for the ads. The studio gets paid for allowing the product to be publicly displayed in plain sight of millions and millions of people. Why does Nintendo think this should work the other way around here? I just don’t get how the entire debate is that one sided at all.
          And: how does it affect demo consoles in stores where you can play a game for free (as long as noone hits you over the head because they want to play it now)? Do these shops need to play a fee? do we get back to arcade levels? Will there be arcade tents in stores, and I have to pay even before I get to enter the zone at all, despite not being sure if I even get to see the game being played by someone else? Btw: I want the copyright for the concept of the “in-store gaming zone”, so Nintendo has to pay me as soon as they want to create one…

  13. arron says:

    I’m looking forward to the Spoiler Warning one on Tomb Raider. If it proves to be a good play through, then it will spur me into buying a copy. So another vote for LPs promoting game sales here. I’ve bought at least three games on the back of LPs I’ve watched.

  14. Sabredance (MatthewH) says:

    I’m trying to think how LPs have influenced my buying behavior:

    Mass Effect, Fallout 3, Fallout New Vegas, DX:HR, and Dishonored all caused me to buy the games.

    BioShock put me off buying the game entirely. Alan Wake I was moderately interested in, but after watching was glad to have seen the game, but felt no urge to play it. And you’re going to hate me for this, but Half-Life 2 has also not really lit my fires, so I haven’t gotten it, and have no plans too.

    A Spec Ops: The Line LP persuaded me not to the buy the game, but I was already about half there anyway just based on the conversation.

    Based on past conversations, I have no particular interest in Tomb Raider, so the upcoming series may or may not affect my purchasing.

    The other LPs I’ve read or played were usually of games I already owned.

    So at least in my case an LP can cause me to buy a game, doesn’t always. On rare occasions it will put me off a game entirely.

    So… occupying about the same place as internet reviews, really.

    And it sounds like Nintendo is going to kill those as collateral damage. So, yeah -horrible idea.

    1. BeamSplashX says:

      Their season on Alan Wake actually turned me off of buying it, but did get me interested in American Nightmare. Bioshock also made me interested in getting Bioshock 2. I couldn’t have really predicted that happening either time.

    2. Syal says:

      Oh yeah, I forgot about the Fallout 3 season! That caused me to buy a re-release package of Fallout 1, 2 and Tactics.

      And I bought Crusader Kings because of reading a screenshot LP of it and then watching a video LP.

      So LPs are responsible for two purchases from someone who doesn’t buy games anymore. (Maybe three; I’m thinking about getting Orcs Must Die.)

      1. krellen says:

        I’m pretty sure my narrative Let’s Play of XCOM sold at least two copies (above the one I bought myself) – which considering my traffic size is a conversion rate of about 5-10%. Consider that on the scale of millions some of the big LPers get.

        1. Aldowyn says:

          XCOM is probably a bit of an outlier. That level of capability for emergent narrative was a bit unexpected, at least for me. With most AAA titles, you pretty much know what you’re going to get.

          1. krellen says:

            On the other hand, what do you think is the percentage of people who play AAA games “for the story”? (And really, how many Nintendo games actually are “AAA” in the sense we mean that?)

    3. MrGuy says:

      Also, I’m pretty sure every single sale of System Shock 2 from the past 6 years is directly attributable to Shamus personally. He really should get commission…

      1. Mephane says:

        My recent purchase indeed is, though I have not yet found the time to play it.

      2. Aldowyn says:

        TBH I’ve converted a fair few people to Mass Effect over the years. No, they don’t hate me now.

  15. Slothful says:

    I really think that if you examine how these companies react to Let’s Plays, you have to take into account the whole of the media industry, since that’s where all these corporate-types are getting all of their ideas and concepts of how things work from.

    For example, there’s a very big problem with TV shows, music, and movies being pirated on youtube. With music it’s the most straightforward: If somebody can just pull up a song and listen to the whole of it on youtube, there’s no reason for them to buy the song at all, save for a slight bit of added convenience. That’s why the music industry is one of the worst offenders when it comes to rabidly flagging videos.

    With movies and TV, it’s slightly different. While it is bad for them to have an entire movie or show put online without the content producers seeing a dime, there’s nothing wrong with a couple clips, or maybe even a single episode. They give people on youtube a taste of the product and leaves them wanting for more, serving as advertising. That’s why lots of content producers actually have their own youtube channels where they put out their own clips.

    You can argue that video games are impossible to fully experience through video, but you can experience a damn lot through video. The bulk of a game’s story can just be given away, along with all of those fancy graphics that the developers dumped oodles of cash into. Seeing as how many makers of triple A games are bumping up against the diminishing returns from how much money they pump into their studios, that’s a tantalizing new trickle of revenue to draw on instead of having to reexamine their business strategy.

    It’s also really important to note that a company putting their own ads on videos wouldn’t necessarily rob all LPers of any possible ad revenue. They could still make their own web sites and put ads on those.
    They could even work out their own advertisement or endorsement deals and put ads on their videos manually. If worst comes to worst, they could host their own videos and work outside of youtube.

    The worst part about how youtube works is just how they attack their users without the slightest warning, before even letting them know that what they’re doing is against the rules.

    1. chiefnewo says:

      I disagree that Youtube don’t let users know that what they’re doing is against the rules. When you go to upload a video, right underneath the upload link it mentions that you must own the copyright or rights to the content of the video you are going to upload. “You must own the copyright or have the necessary rights for any content you upload. Learn more”. The Learn more link takes you to a page where they explicitly spell out exactly what can happen if you upload a video with someone else’s copyright. It’s not like one of those massive EULA documents that no-one reads, it’s a short document that lets you know exactly what you can upload and what can happen if you upload something that someone else has the rights to.

      It can feel harsh when they take down a video in response to a copyright complaint, especially when it turns out to be a false claim, but at no point have they tried to hide what they do.

      This is all tangential to Shamus’s point that Nintendo doing so is shooting themselves in the foot in terms of broad exposure.

    2. Ciennas says:

      It’s not even youtube, per se.

      It’s badly programmed bots, who can see, but not extrapolate.

      For example, take a look at LittleKuriboh’s.channel. It gets knocked down constantly, and then put right back up, and apparently even has more or less the blessings of all the copyright holders to the original version of his show.

      But the bots don’t know that, and keep flagging. Honestly, we should just drop Youtube like the crazy place that it is. But nobody else has the ubiquity.

      Whoo! Youtube is the Walmart of the video world: Too big to ignore, and their actions cause the earth to quake completely.

      1. swenson says:

        Didn’t he just get taken down/back up again recently?

        They should have a special category that the bots ignore for stuff like that…

  16. rayen says:

    This is just the latest in a long line of evidence that Nintendo just does not understand the internet at all. What i can’t figure out is why, they were pioneers in the connectivity and multiperson video gaming then sometime around 2002 they started regressing. I don’t know if it’s something about Japanese culture or their business there, but they need to get on it or they aren’t going to be a viable player in any market.

  17. Phantos says:

    The Wii U is already a punchline and the next-gen competition isn’t even out yet.

    A New Challenger appears!

    Videogame footage is the watercooler conversation of the next generation. This is the future. Nintendo should be pursuing it, not attacking it.

    Sharing video game footage is not the future. It is the present. It is NOW. That’s what makes this so frustrating.

    1. Aldowyn says:

      Not in the way they’re trying to do it. It’s not like every gamer uploads footage occasionally – especially console gamers.

  18. Eric says:

    “They really have no concept of how this works. Their perceptions are so distorted that they think they're being generous.”

    I don’t agree. It’s a PR statement made by some schmuck who has to put a spin on it and make it sounds like Nintendo care about the user community. Sometimes it’s hard to put spin on something without coming across poorly – and what else are they supposed to say? “We don’t appreciate the YouTube and Let’s Play communities at all”?

    1. Scampi says:

      Now I wonder how much of a selling point honesty could possibly be with video game companies: I imagine some company making a spot with something like this:

      You see a puppy; in nice in-game graphics. An also ig-hand appears on the screen, grabbing the puppy and drowning it in a nearby barrel of water. Voiceover: “Yes, we’re being horrible people-but we let you know. (Insert Company name/slogan)”

      Actually: I wonder if it would be fun trying to create horribly abusive pseudo-ads for several companies…

      1. anaphysik says:

        “horribly abusive pseudo-ads”

        Check out the in-world ads for Veridian [sic] Dynamics from Better Off Ted; they start normal, but quickly veer into that territory.

  19. Corpital says:

    As I’m watching a speedrunning stream of MegaMan10 at the moment. what do you think about the consequences here? The absolute majority of runners isn’t in it for the money, but many upload runs, highlights etc. to Youtube. These videos usually consist of 100% gameplay and often involve glitches, which might be seen as showing the game in a bad light. Sounds like a perfect example for a worst case scenario.

  20. Daemian Lucifer says:

    So,when nintendo needs an artist to make a music for their game,that artist is free to ask for all the proceeds of the game to go to them?They dont have to ask just for a check in advance,or a cut of the profits,they can simply take everything.

    Good to know.

    1. Daimbert says:

      In that case, Nintendo enters into an agreement with the artist spelling out the compensation for those rights. In the youtube case, the artist has no such agreement and is generating money from what someone else did without providing any compensation whatsoever. That’s the difference here.

      1. Daemian Lucifer says:

        No,the artist generates money from adding to what someone else did,and they already gave compensation when they bought the game.

        Or are you saying that sampling songs is illegal,and all the artists that do it should be out of work(though some of them *coughwilliamcough* really should be out of work)?Or how about someone that buys wood to make and sell a piece of furniture?Or buys paint to paint and sell a picture?None of them made a specific contract with the maker of the original,other than the initial transaction of money.

        1. Daemian Lucifer says:

          Ah crap,moderation again:(The one thing I failed to find a pattern for.

        2. Daimbert says:

          Your new examples have nothing to do with the original one, where there IS an explicit agreement.

          I can’t comment on sampling because cases where someone used even a similar rhythm line — see for example, the issue with “Down Under” losing a case about using a simple flute line like “Kookobura” — have been actionable, so I assume that the samplers get permission, credit it, and/or use samples from songs that are in the public domain (that’s how you get covers of songs as well). For the other cases, when you buy wood or paint you buy it to use it to do something, and there is an understood agreement that the person is merely providing the materials and you can use it for whatever reason you want, meaning that the supplier has neither rights nor responsibilities for what you do with it.

          Again, none of that is the case here. The makers sell you the game to play it, not to post the footage on youtube of you playing it. So again, the comparisons simply don’t work.

  21. zob says:

    I find this whole thing hilarious. I have always been vocally against the mindset “we are selling experience”, “excusing” all those draconian DRM measures. I always believed that I should be able to “buy” the product and found the notion of producers “letting” me play the game ridiculous.

    A person or a group of people sharing their “experience” playing a game is what we call a LP. With this move Nintendo claims, that experience also belongs to the companies and only they can monetize it.

    So what exactly am I buying with my money if neither the game nor the experience actually belongs to me?

    1. Peter H. Coffin says:

      That’s kind of the thing. LPs are not the experience. The viewer has no involvement — she’s watching someone ELSE having an experience.

      1. swenson says:

        zob’s point still stands, though–whether it’s YOUR experience or THEIR experience, it’s not NINTENDO’S experience.

  22. MrGuy says:

    As others pointed, out, this could be a “lose” for Nintendo, because people will stop creating fan content. I wonder if this is actually true.

    One of the main ways “things move” in the airline industry (widespread fare sales, fare hikes, checked baggage fees, etc.) is through “test the waters and see” announcements. They look a lot like this.

    An airline announces “effective 6 weeks from now, we’re charging for your carry-on bag.” Then they wait to see if other airlines announce “hey, yeah! Us too!” or not. If other people glom on to the idea, they do it. If not, they “heh heh – nevermind!” and rescind the proposal.

    If Nintendo, and ONLY Nintendo, has this policy, then Nintendo loses. If the other game houses decide “what a great idea!” and do the same thing, then Nintendo’s now just doing “industry standard practice” and WON’T lose appreciable share of the “fan content” pie.

    Sure, there will be a little shift by content creators towards indies, and there will be some reduction in the amount of people doing LP-type content who get discouraged, but there may well be an equilibrium where Nintendo keeps this policy in place and STILL doesn’t lose out.

    1. Halceon says:

      Then there’s the rather probable chance of other companies doing the exact opposite and scoring big kudos from everyone. Like Paradox just did.

    2. Steve C says:

      People loathe the airlines and the airline industry though. Not exactly a shining example of what to do, kind of the opposite really.

      1. MrGuy says:

        I in no way suggested it was a GOOD thing.

        Just that there were potential ways this could play out that were actually profitable to Nintendo (from an economic standpoint, obviously not from a goodwill standpoint…)

    3. Aldowyn says:

      I have a theory that a lot of the ‘leaks’ we hear about – like the patent for an always-online PS4 – are essentially that. Making all this confusion about the Xbox One all the more surprising…

  23. Decius says:

    I will watch for someone who challenges the claim. Claiming to own copyright of something that you don’t in order to get money is called fraud. The only variable is whether Hoyle owns WSOP, or whether Adobe owns every Photoshopped image ever, or whether some guy that happened to write a bit of machine code owns all tech companies ever.

    Owning the copyright of program that was used in the creation of an artistic work is not the same as owning the copyright to the work, and if Nintendo or Google are profiting from misidentifying the owners of videos and profiting from such misidentification, they should be taken to task by the actual owners.

    If the actual owners of a video are the people making the video and not the people who made the software that the video is of.

    (Keep in mind that Nintendo’s position, if it held up in court, could make PA’s Strip Search owned by the people who wrote the programs used in the elimination challenges.)

  24. wulfgar says:

    blizzard could make same thigh with all starcraft replays. but they wont. they aren’t stupid enough to destroy their esports business

  25. Halceon says:

    There’s one thing that needs to enter this discussion. And that is Paradox Interactive.
    They released this statement
    (Sorry I can’t find a more reputable source at the moment)

    Which makes me a happy camper, since I run a channel that focuses on strategy games. I don’t record Nintendo games and don’t have enough viewers to run ads on my own. In my current situation ads suddenly appearing on my vids would be a decrease in user experience. If I don’t make anything out of it, that’s an extra negative. (I’ve refused a partnership on this basis).

    Anyway, Paradox’s permission seems to come as a direct response to Nintendo and I’m eager to see what official positions other publishers start taking.

  26. Zaxares says:

    This is a toughie… While I do think it’s crass what Nintendo is trying to do, Shamus listed some examples of where people are doing LP’s as their job. (Do people really make BIG MONEY from it? I dunno. I don’t know enough about the area to speculate.) If somebody is actually earning a living by playing a company’s games, thereby using their product as a source of income, I do think that Nintendo should be entitled to a clip of the proceeds, similar to how people using soundtracks as part of ads and radio programs have to get permission or pay a licensing fee to do this.

    1. anaphysik says:

      But it’s not a fee. It’s the full amount. A fee would discourage those ‘big money’ LPers (I, too, do not really know who these people would be, but whatever; I certainly know that there are folks that rake in millions of views), but they might still view it as worthwhile, and so Nintendo would get /some/ cash. Taking 100% like Nintendo intends will get Nintendo *0%* of that ‘big money’ – since now there’s a massive opportunity cost to covering a Nintendo game instead of some other company’s game.

      Hence why it’s stupid even from a ‘greedy money grubbing bastard’ perspective. It really does sound like (as someone else mentioned) Saturday-morning-cartoon villainy.

      Except without the cackling laughter. I miss the cackling laughter.

      Ha haha! Haha ha haha!

      1. Daimbert says:

        Yeah, it’d probably be better to use the same system and split the revenue with the creator of the video 50-50. For those trying to make money off of the content, that would hurt them, and for those who aren’t it’s probably a bonus.

        1. swenson says:

          I don’t understand why they didn’t do this. Even saying “we’re gonna take half the money” would be better than “WE’RE GOING TO TAKE HALF THE MONEY MUAHAHAHA”.

  27. Daimbert says:

    They really have no concept of how this works. Their perceptions are so distorted that they think they're being generous.

    But, relatively speaking, they are. There’s always been a problem on youtube of people simply uploading things that they don’t own and making money off of them. A lot of the big companies — I think SF Debris got in trouble with Paramount over this — have been putting out bots that scan for content and then just shut the video down, and then as even you discovered you have to fight to get it back or get things settled. But for large companies they don’t have the ability to actually assess whether something is allowed under fair use or not, since they have so many instances and there are so many videos on youtube, so they really want to be able to simply have those automatic bots, flag it, and then let those with a legitimate claim fight it out.

    So Nintendo’s approach is a compromise. They still use the automatic botting, but instead of shutting down the video they attach ads to it so that they can be seen to make money on it — and therefore stopping anyone from using that video as an argument that they have given up their rights — or take the ad revenue from those who were using it to make money. For videos where the creators aren’t trying to make money, the video stays up and nothing changes for them, except that they’ll now have ads that they didn’t have before. For those who are trying to make money, they lose it … but if the video really is a violation those are precisely the cases that Nintendo wants to stop.

    I presume that in both cases you can fight the flagging and get things back the way they were. The only thing is that while you fight it people can still see your content, which is better than it being shut down until you fight it out.

    Now, this could indeed stop some people from doing LPs and the like of Nintendo products, so it isn’t an ideal solution. But it’s better than at last some of the alternatives.

    1. Steve C says:

      So Nintendo's approach is a compromise.

      It’s not a compromise at all. If anything it’s worse. Shutting down copyright infringement is something they have a legal right to do.* But attaching adds is -not- something they have a legal right to do. It’s something they have the power to do. There’s a difference. They are overstepping their rights and while it may be a better result for some it’s not a compromise. That’s like if your dog wandered onto my property and I sold him off and then said “Well at least I didn’t shoot him.” It may be many things but it’s no compromise.

      * And yes, fair use is still copyright infringement. Fair use is a defense that says “Yes I did that, I’m guilty of infringement but I’m allowed and you can’t object.”

      1. Daimbert says:

        It’s not Nintendo that has to worry about whether it’s legal or not, but youtube. Presumably, youtube is saying that under the agreements people sign with youtube this is actually allowable, and so Nintendo is taking this option instead of shutting down the videos, which is what makes it a compromise.

  28. Zak McKracken says:

    I think that probably the “we’re so nice because we don’t completely interdict videos of our games” thing was added by the PR department, in their permanent struggle to make everything sound friendly.
    The idea itself probably comes from the law department because they realized they had a case, and if you have a case, it must be seen through and won.

    A company as large as Nintendo can’t really be seen as one entity, although it tries very hard to create that impression.

    Just today I read that Ferrero, makers of Nutella sent a cease & desist letter to the french organizer of “nutella day”, who’s been doing this for 6 years, and even cooperating with their marketing department. I can’t imagine there’s a strategy behind it. It’s most probably one department not caring for the grander scheme of things. In that sense, large corporations are always at least a bit schizophrenic. Which makes dealing with them (and directing them!) a pain.

    Given these things, maybe that’s why large games companies don’t really like to implement “emergent” gameplay, because that’s what their bosses have to jockey with all day…

  29. Zeta Kai says:

    The thing that really pisses me off concerning the whole “get a real job”, “people who make those videos shouldn’t be able to profit from them”, “if you really love it, do it for free” thing is this: art is one of the most respected, widely-beloved aspects of our global culture, but we tend to treat artists like shit.

    It doesn’t matter where you go, or when you go; art is there. Humans love art; always have, always will. It’s a defining aspect of our species (aside from tools, violence, & tools for greater violence). From the earliest cave paintings to the most modern video game, from the Epic of Gilgamesh to this blog, art is something to be sought, absorbed, & appreciated. Which art you enjoy says a lot about you, & to a certain degree, we are defined (both individually & collectively) by the art that we choose to expose ourselves to & promote.

    The currency of the internet is content, & that content (be it audio, video, or text) is art. Video game consoles are judged according to the content that they are able to deliver. Media storage exists to store & preserve content for later consumption. All of the glowing rectangles that we stare at all day, every day are designed to convey that content as largely & as efficiently as possible.

    But the artists that create all of our content? Screw ’em! They don’t deserve our respect. They are weirdos, loners, & freaks. If they truly love what they do, if they are REAL artists, then they shouldn’t want to make money making art, so we shouldn’t have to pay them. They should be the proverbial starving artists, desperate & hungry. Those with the talent & the drive to create all of the content shouldn’t get the opportunity to profit from their work. That’s just crazy.

    Does the artist deserve a nickle from the album that they wrote & recorded? No, that money should go to the record executive to fuel his coke habit! Should the texture artist make a living wage painting the sky-boxes for EA’s latest “game”? No, that’s money that Bobby Kotick needs to pay for another sports car! Why should the author who wrote Forrest Gump see any of the millions in profits from the movie? No, the Hollywood studio’s accounting offices need to make that money disappear, so it doesn’t taint the artist’s integrity!

    I’ve heard just about every imaginable excuse for why artists don’t get to make money from their craft. They shouldn’t want it. The don’t really need it. It’s not theirs because their art is based on someone else’s art. It’ll ruin their gift. What they made isn’t really art, it’s just a (blog/longplay/viral video/meme/flash game/cake/indie thing/whatever). THEY DON’T DESERVE IT, THEY’RE ARTISTS.

    George Lucas, when he was making his prequels, would have the artists create hundreds of different paintings, sculptures, & computers models for his approval. He would then gather them together & imperiously pick & choose the ones that he liked the best, casting the rest aside. He did this, knowing that the artists were on meager contracts, working for the privilege of being on a Star Wars design team, while he would be able to rake in the dough later on cranking out licensing deals & merchandising products. Artists designed all of those light sabers, pod racers, aliens, ships, droids, planets, & costumes. And none of them were named George Lucas. He’s the guy who made a mint selling Jar Jar Binks, but he didn’t give the character its name.

    It makes me sick that artists can’t make a living doing what they love (or if they are actually lucky enough to do so, being labelled a sell-out). Athletes can. Doctors can. Engineers can. But the best that an artist can realistically hope for is the patronage of some advertising/marketing firm, banging out ad copy & being labeled a shill for the trouble.

    Art is everywhere. Money is everywhere. But good luck to the poor schlub who tries to use one to get the other.

    1. Artists on meager contracts? People like
      Feng Zhu, Ian McCaig, and Ryan Church?
      Did you mean those poor people?
      I don’t mean to ruin your argument, I certainly agree to an extent, but I don’t think the Star Wars Prequels are a good example here. These are some of my personal heroes and as far as I can tell, they are doing perfectly well for themselves. Ryan Church and Ian McCaig both talk a lot about their time working on the Star Wars Prequels in the training videos they did for the Gnomon Workshop. As I recall, they never said a single bad thing about George Lucas. Quite on the contrary. The combat scene in the factory in Episode 2 was entirely based on a concept design done by Ryan, simply because George Lucas was so impressed with the work.

  30. froogger says:

    Oh, how do you do the voodoo you do so well.. too? Loved this Experienced Points like the others. In fact, I read all your stuff. Except the book, but I’ll get around to it.

    I know, you put all your points into WIS and INT, didn’t you? To hell with END, LUC and the rest – am I right?

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