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[s0]

Playing a game is arguably a transformative act, as playing a game and watching a game are not the same thing (whilst a movie or TV show is preserved fully and unchanged).

yes and that's also why the piracy comparisons are wrong.

[eyeliner]

so fair use just suddenly isnt a cool thing because it may somehow be construed as harmful to *our bottom line* now? the legality is something for the courts to decide i guess, but i really just dont get the perspective. i mean, i do have a pirate bay logo avatar, so perhaps my bias is evident.

anyway, the argument probably gets even more tricky now that youtube appears to be moving toward a donation / tipping model. with ad revenue you could (maybe) make the claim that the money coming in was directly related to the games being played, but if its money donated specifically to the personality or channel, i think it would be an even more difficult position to take.

Well, could it be that fair use is valid if you just played part of the game and not it's entirety? I don't know, I started to watch a let's play for a game (forgot which) and just couldn't stand the constant talking of the player and seeing a game like if it was a movie. So yeah, I wouldn't buy a game if I'd see a let's play in it's entirety. It just isn't worth it because I've seen the full game already, albeit in a non interactive way.

[Blademasterbobo]

fair use was never meant to cover "hey lets show 100% of this thing on a youtube video"

dum. quit bringing it up.

    17 U.S.C. § 107

    Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

            1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
            2. the nature of the copyrighted work;
            3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
            4. the effect of the use upon the potential market for or value of the copyrighted work.

    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

you guys use fair use like you use the word censorship, just throwing it at anything and everything whether or not it's remotely accurate

[jamesprimate]

for some reason you are saying that like its a fact, but fair use is argued every day in court and a large amount of lets plays fit ALL of those criteria: they are for "educational purposes", use a small amount of the actual possible gameplay, and aren't intended in any way to "compete" with the product. Plus they are in a completely different medium! the issue isnt that fair use is some cover-all blanket that allows people to wipe their bums with IP, but you could certainly argue it in court along those lines in this instance (which is the only real context for all of this, unless you are thinking this would somehow be a voluntary process.)

if some revenue hungry dev wanted to take a specific letsplayer to court to get royalties, the lawyers would argue these points. say that person is pewdiepie, perhaps a case COULD theoretically be built that he's a product rather than just a person goofing off mindlessly on youtube, but even so in order for said developer to actually receive damages, it would have to be established in the minds of the court that pewdiepies money was there as a direct result of the specific IP infringement. and it would be case by case for every single instance.

there is no "hit button to make tens of thousands of letsplayers give a percentage of the money they theoretically may have earned for specific videos to their respective IP owners." the best you could do right now is threaten them with DMCAs.

[Dragonmaw]

it's not about being "harmful to the bottom line." who gives a shit about the bottom line (i don't).

it's about giving people money for their hard work. should developers take 100% of revenue from lpers? fuck no. should they take 50%? maybe, but i still think no. should they take 10%? sure, i don't think that's bad. let them make that decision, though.

also, people keep bringing up fair use like it's a thing, but let's deconstruct it (thanks bobo for pasting the fair use clause):

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

fair use applies primarily to non-profit works, or in the case of profit works, journalism. there is no way in hell you could look me in the face and say that LPing is journalism.

2. the nature of the copyrighted work;

is the game substantially ruined by you playing it? unless it's an entirely freeform game, or multiplayer, chances are it is.

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

if you stream part of a game, or use small bits of footage instead of the entire game front to back, it's fair use.

4. the effect of the use upon the potential market for or value of the copyrighted work.

another "single-player" vs "multiplayer" thing.

now, the bigger question. is playing a game transformative? yes. is it substantially transformative, ie it turns the piece into another piece? except in extremely rare cases, no. games are generally the same - even ones with "cool choices" like Walking Dead or King of Dragon Pass - regardless of who plays them and what choices they make. flipping an switch that already exists is not transformative; turning the work from one thing into another (say, by making a mod, or making machinima) is.

is commentary transformative? that's a bit more nebulous, but unless it totally recontextualizes the game, probably not. reviews are the exception (such as Total Biscuit), but reviews are also not usually done over the entire game's footage (with very rare exceptions).

so really, fair use doesn't apply. we are talking about LPers monetizing videos of them talking over a game in its entirety. that is for profit, not substantially transformative, and uses far too much of the work to be considered "fair use." legally, developers could take down the video entirely (which i also think is wrong) for violating their copyright.

feeling entitled to the entirety of ad revenue also just straight up rude. give a little kickback to the people that enabled you to make a video; without their game, your video wouldn't have been made. it's not hard, it doesn't significantly harm you, and it's just straight up a nice thing to do. spread the love.

[jamesprimate]

it may be that way in your mind, but in order for phil fish to get pewdiepies money, the issue is going to be whether it can be established that way in the eyes of the court given the current legal framework. otherwise were basically saying "i wish..."

thats why i really dont think the court/draconian DMCA bullshit is the way to go on this.

[Dragonmaw]

it's not rude "in my mind." it's rude. it's straight up rude. give some love to the people that made it happen.

[Zaphos]

Re fair use: Again, YouTube's policies on this are very clear:

Whether you can use video game content for monetization depends on the commercial use rights granted to you by the license from the applicable video game publisher. Some video game publishers may allow you to use all video game content for commercial use and confirm such permission in their licensing agreements.

In other licensing agreements, publishers may not grant commercial rights for videos that simply show game play for extended periods of time. For these licensing terms, the use of video games must be minimal unless the associated step-by-step commentary provides instructional and/or educational value and is strictly tied to the live action being shown. For more information, please review Video game and software content.

- https://support.google.com/youtube/answer/2490020?hl=en

A game dev doesn't need to take anyone to court to get a let's play of their game taken off of youtube, or to have the ad revenue redirected to them.  Again, Nintendo did this just by registering their content with YouTube.  (They backed off temporarily -- but not for legal reasons, but rather afaict because YouTube doesn't really give the revenue share options like Dragonmaw wants, so it seems Nintendo has been building that up themselves.)

[s0]

but unless it totally recontextualizes the game, probably not.

doesn't the "totally recontextualizes" thing apply pretty much exactly to pewdiepie tho? i mean tbh ive only seen him play dark souls for 10 minutes once before i closed the tab because i found him pretty unbearable, but the impression i got was that he edits a lot, splices in shots of himself talking etc. i don't think i ever saw him continuously play the game for more than like 30 seconds at a time.

[Zaphos]

I do think that jamesprimate is right that fair use analysis is notoriously hairy, and basically the only way we'll know for sure what is or isn't fair use is by people actually suing over it.  (Which often won't happen because it's cheaper for both parties to just resolve out of court.  & since almost everyone already allows let's plays, it makes a lot more sense for let's players to just avoid the games of the very few developers who might sue them...)

Here's an interesting legal analysis of the issue: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2368615

[ryansumo]

I would be okay with a model kinda like Unity or Unreal, free until the "youtuber" is earning a certain amount of big bucks (mostly honor-based?).

So kids who are starting have the freedom to do how they please, but the guys who are millionaires pay something back.

I don't know why no one responded to this, as it seems the most practical and non-emotionally charged solution.  It's a good model, and as for enforcement, it would be up to youtube and the developer community to work it out.

I don't appreciate what seems to me to be ad hominem attacks on developers who are "greedy".  Wanting money isn't greedy.  Wanting to earn money that you feel is rightly owed to you because you worked for it is not necessarily greedy, especially since, as you all mentioned, most Let's Players don't make a lot of money.  Well guess what, most devs don't earn a lot of money either, and any additional cashflow into their pockets to allow them to live decent lives while making you games doesn't make them greedy, it just means they're rational  human beings.

Given the suggestion of royalties based on earnings, it feels eminently fair that Let's Players earning $1000 and below should not pay any fees, but above that threshold paying a %5 fee seems pretty fair to me.

[gimymblert]

1. did the LPer paid for the game or the game was send to him

2. Is he performing task that takes time and skills

3. does he reframe the work in a different media

4. Party animals looks rad

With
1. the dev is rewarded for his effort
- with actual money
- with potential sales through exposure
Exposure that depend on the value of 3 and 2 whch are effort put by the LPer

2. The LPer is putting value and effort in his works

3. the LPer is building a brand irrelevant of which game is actually play and is reward by the fitness to an existing audience through number of views.

4. Party animals looks rad

[Dragonmaw]

Yeah I'm fine with making it a threashhold, like "if you earn more than 2k in a month, pay 10% to the dev."

[starsrift]

Let's move away from thought exercise wankery. The 'tubers hold the cards as they are the scarce resource. Nobody's crunched the numbers, but according that Gama article on the issue, getting a 'tuber to play your game has a similar effect on sales numbers as the game going on sale.

So if we want a piece of the ad revenue pie, in addition to the bonus sales, and don't want to put 'tubers in the position of picking what game to 'tube based on whether or not they're paying out licensing for it, how could we incentivize 'tubers to pay the revenue forward?

[Dragonmaw]

Appeal to them not being greedy shitlords?

Also, "people making let's plays is a scarce resource" lmao okay sure.

[Triturus]

Appeal to them not being greedy shitlords?

Also, "people making let's plays is a scarce resource" lmao okay sure.

Pretty sure he means only those who actually have the same effect as your game being on sale like pewdiepies, cynical biscuit, etc...

[knifeySpoonie]

Let's move away from thought exercise wankery. The 'tubers hold the cards as they are the scarce resource. Nobody's crunched the numbers, but according that Gama article on the issue, getting a 'tuber to play your game has a similar effect on sales numbers as the game going on sale.

So if we want a piece of the ad revenue pie, in addition to the bonus sales, and don't want to put 'tubers in the position of picking what game to 'tube based on whether or not they're paying out licensing for it, how could we incentivize 'tubers to pay the revenue forward?

what? can you link in your source? even the gama article... I can see one of the handful of Youtubers with a few million+ subscribers effecting sales highly but compared to a steam sale, I doubt many LP'ers come close...

Oh and from my personal standpoint as a dev I don't think LP'er should have to share revenue... I mean do games magazines pay part of their ads to game devs for games they review... of course not...

[MorleyDev]

Is YouTube killing the traditional games press?

When DanNerdCubed played Race The Sun and linked our Greenlight page, it had a bigger impact than all of the website coverage we'd had up to that point, combined.

"The vast majority of the smaller Let's Play channels don't really generate enough immediate sales," adds the Democracy 3 dev, "but they still increase awareness of the game and that definitely helps."

"Most indie game success stories on PC in the last year or two have had predominant YouTube coverage."

getting covered by Total Biscuit gave us a sales spike that roughly mirrored the game being on sale for a week

I know when I see game X I think I'll like, the first thing I do is search "Review X" and "Let's Play X" and watch a few reviews and then a few let's plays of it (not the whole way through, but the first parts of it) to make up my mind. Sometimes I'll decide I don't particularly like the game as one to play, but the Let's Play of it looks fun. So I'll keep watching, maybe subscribe. Then they let's play more games, sometimes they look like fun to watch, but not to play. I can't think of any game that I watched instead of buying.

[ஒழுக்கின்மை (Paul Eres)]

one thing i should note is that most let's players *do not* monetize their work; they make their videos available for free and get no money from it. it's only the ones with hundreds of thousands of subscribers who tend to put ads on them. but for around 99% of let's players, they do it out of the love of it, and make no money at all

so i think it's important to keep in mind that this issue really only applies to a tiny, tiny percent of let's players: those that make money from it. the majority of let's players would not be affected at all if some devs demanded a percent of ad revenue and youtube created a system for that (which i still think is a bad idea, but a lot of people are acting like it's the end of the world if it were done that way). 10% of 0 is still 0.

[Brent]

I voted no because I don't think that only the Youtubers get the benefit from using games in their videos. The devs themselves also get what is basically free publicity for it as well so its fair to both parties.

Also it would be incredibly difficult to enforce in the first place and would only harm both the youtubers and the developers (especially indie ones who don't have the resources to do a ton of marketing like the AAA studios.)