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  1. #21
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    Quote Originally Posted by Moraven View Post
    When you send a review code to TB... do you not expect him to make a video on it?
    You probably should do, if you've done your research. But if you're Bain and you don't get that permission explicitly, and it's your livelihood, as he says in the video linked, then you're an idiot. He'd be better off just getting agreements in place for people to sign for stuff he reviews rather than just whine about copyright law. Because if you're going to use large chunks of someone else's work in your video they have the right to defend that copyright. Just like putting up the first 20 minutes of a film and talking over it wouldn't be allowed, or quoting all of the first chapter of Harry Potter but with sarcastic comments between each paragraph.

    Of course, the company are being dicks and only going after him because he slagged them off and has an audience, but he shouldn't be doing stuff that puts his whole livelihood at the mercy of dicks in the first place. He should be on top of that.

  2. #22
    Quote Originally Posted by deano2099 View Post
    You probably should do, if you've done your research. But if you're Bain and you don't get that permission explicitly, and it's your livelihood, as he says in the video linked, then you're an idiot. He'd be better off just getting agreements in place for people to sign for stuff he reviews rather than just whine about copyright law. Because if you're going to use large chunks of someone else's work in your video they have the right to defend that copyright. Just like putting up the first 20 minutes of a film and talking over it wouldn't be allowed, or quoting all of the first chapter of Harry Potter but with sarcastic comments between each paragraph.

    Of course, the company are being dicks and only going after him because he slagged them off and has an audience, but he shouldn't be doing stuff that puts his whole livelihood at the mercy of dicks in the first place. He should be on top of that.
    You don't need permission. Fair Use can reasonably be considered to cover most/all Let's Play content and this isn't just gameplay footage but criticism and commentary which specifically falls under Fair Use. You may want to actually watch the video TB posted explaining this.

  3. #23
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    Reddit have covered this already - according to TB he explains how he and his videos work (e.g. that they're monetised) when approaching game companies.

    It should be obvious anyway - reviews which appear in magazines sit alongside ads (and the magazines cost money) - even Kotaku (who the developer specifically said were 'OK' to criticise the game) run ads on their site (just not Youtube monetisation).

    To be fair to TB (who i normally find pretty annoying) he runs a clean ship - he makes-sure his PC to top-notch so that no-one can say "it's your PC" and he's been open about his business model from Day 1.

    As for copyright - copyright has a specific exclusion (fair-use) which covers reviewing and commentating on media - so long as you're doing that, you're protected against copyright action - so their claim, in this case, is not only wrong but they've even admitted it's wrong by saying their issue is 'monetisation' and not' copyright'.

    I don't think this will end-well for them - but if that's the best game they can make that's probably for the best for everyone involved, really...

  4. #24
    Secondary Hivemind Nexus gwathdring's Avatar
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    You don't need permission. Fair Use can reasonably be considered to cover most/all Let's Play content and this isn't just gameplay footage but criticism and commentary which specifically falls under Fair Use. You may want to actually watch the video TB posted explaining this.
    The only problem is that, in the US at least, precedent gets kinda wonky and until specific cases are court-tested, Fair Use is at best a guideline. I don't see this as a good thing of course, but crying Fair Use is not a straightforward process even if it should be.

    That said, it sounds like Total Biscuit more than covers his backside even considering the vagaries of copyright.
    Last edited by gwathdring; 20-10-2013 at 11:49 PM.
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  5. #25
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    Games as a product are their to be played.

    I don't see how a video of a game is breaking copyright, Its not copying the game, its showing it.

  6. #26
    Secondary Hivemind Nexus gwathdring's Avatar
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    Quote Originally Posted by karaquazian View Post
    Games as a product are their to be played.

    I don't see how a video of a game is breaking copyright, Its not copying the game, its showing it.
    There's actually quite a bit of precedent for this. Public performances of copyrighted works have quite a few restrictions. The best way to guarantee that you can just show people a film or just play someone else's song is to get permission from the artist. There are exceptions, loopholes, precedents, and so forth ... but performance of a copy-written work is not a sure-fire thing. You can't play a movie for at a public gathering (or sufficiently large private gathering) without permission. But movies were meant to be watched, right? Only by customers; the creators reserve the right (and have permission from government to reserve the right) to restrict access to the film to their lawful customers except by special permissions. Sometimes a simple e-mail is enough; say why your organization wants to do a public screening of the film and about how many people will be there and you're not unlike to get permission. Sometimes there's a cost, though. Complicating matters further, there's "compulsory" licensing--things a creator can't prevent you from doing, even if they have a right to ask you to pay to do it. Creating certain kinds of musical covers falls under compulsory licensing, but some bands will give you permission to jump out of the compulsory licensing system and set up some kind of special arrangement.

    It doesn't matter if it was meant to be played by the customer. The customer has a right to play it. Whether the customer has a right to "perform" it for others, let alone profit from that performance, is another matter entirely.

    Doing it as a piece of criticism or adding substantial original content (such as with commentary) does put you in much safer territory, but Fair Use is not a once-and-done concept. It's qualitative and relies on guided precedent more than hard-and-fast principles to be taken at face value.
    Last edited by gwathdring; 21-10-2013 at 12:27 AM.
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    You ruined his point by putting it in context thatís cheating -bull0

  7. #27
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    Quote Originally Posted by karaquazian View Post
    Games as a product are their to be played.

    I don't see how a video of a game is breaking copyright, Its not copying the game, its showing it.
    Copyright is the 'right' to determine who gets to 'copy' a work - taking footage of a game and putting it on YouTube is 'copying' someone's work and you need the 'right' to do that.

    Fair-use exists to protect people who wish to criticise/commentate/parody forms of media - as someone said, it's not quite as simple as it sounds but in theory you are fine using images/video/sounds from a game/film/album/whatever for those reasons.

    As for monetising your work - copyright isn't interested and doesn't care about that aspect of it at all. Copyright covers your 'right' to 'copy' something irrespective of whether you earn money from it or otherwise.

    In this case, of course, the ONLY reason we're talking about copyright is because that's the lazy and easy way to get Google to remove videos from YouTube - the developers have made it crystal-clear they don't consider this a 'copyright issue' so they've as-much-as-admitted lying to Google just to get the video removed - which isn't a winning way to start, is it?

  8. #28
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    If I were TB I'd want to tread carefully here (something I'm not sure he'll know how to do) - if this blows-up the wrong way it will just bring attention to their shitty game.

    If I were him I'd get the video reinstated by proving they'd agreed to him reviewing the game - and as-per their wishes I'd remove the monetisation from it - and then I'd just move along.

    Except that I'd spam them continuously every time their game appears in any context where ads appear - every website/magazine/blog which touches it and which has an ad, I'd demand they address it ASAP

    Fairly soon they'd wish they'd shut-the-fuck-up in the first place.

  9. #29
    Secondary Hivemind Nexus gwathdring's Avatar
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    As for monetising your work - copyright isn't interested and doesn't care about that aspect of it at all. Copyright covers your 'right' to 'copy' something irrespective of whether you earn money from it or otherwise.
    Not entirely true. Some of copyright's usage regulations are dependent on whether or not money is being made--some of those require explicit permission and some fall under compulsory licensing which means you can automatically do it but you have to tell them you want to do it and they'll set you up to pay them royalties for doing it. The main difference between the two is whether or not the copyright holder can say "no." But if you're making money and the copyright holder isn't ... there are only so many things you can do without stepping into infringement territory.

    In this case, of course, the ONLY reason we're talking about copyright is because that's the lazy and easy way to get Google to remove videos from YouTube - the developers have made it crystal-clear they don't consider this a 'copyright issue' so they've as-much-as-admitted lying to Google just to get the video removed - which isn't a winning way to start, is it?
    Wait, I missed that bit. They're actually claiming this isn't a copyright thing ... but they already claimed it was because the didn't approve the monetization (thus implicitly claiming that it either wasn't Fair Use, that they didn't know it was happening (even though they sent a review copy), or that they only approved it without monetization (which would be dumb for reasons already discussed))?

    Hahahahaha. Wow. They really stepped in it.
    I think of [the Internet] as a grisly raw steak laid out on a porcelain benchtop in the sun, covered in chocolate hazelnut sauce. In the background plays Stardustís Music Sounds Better With You. Thereís lots of fog. --tomeoftom

    You ruined his point by putting it in context thatís cheating -bull0

  10. #30
    If what TB does doesn't qualify as fair use, I don't know what possibly would. He is pretty clearly critiquing the games and people are watching those videos to hear his opinion. He absolutely deserves to make money off it because its his personality that I'm sure draws most of his views, not the gameplay itself. It's not like some crap let's player where the main attraction might be to just "watch the game".

    Add to that that anyone with a brain can see they only did that because he gave them a bad review and I see it as a well deserved PR nightmare for this company.

  11. #31
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    Quote Originally Posted by Bios Element View Post
    You don't need permission. Fair Use can reasonably be considered to cover most/all Let's Play content and this isn't just gameplay footage but criticism and commentary which specifically falls under Fair Use. You may want to actually watch the video TB posted explaining this.
    Fair Use ain't that simple. Also I watched the TB video linked above and he doesn't really use the Fair Use argument at all. He uses the 'we had permission' argument. But his evidence for that is 'implied' permission by the fact he got review code, and a Steam forum post from a dev saying that some guy could make a YouTube video. The reverse argument applies here - if Bain is so sure that everyone is fine with him using stuff this way, why not go the extra step of asking permission and getting it explicitly? As he repeatedly states in his video, it's his livelihood at risk. Why risk that?

    Quote Originally Posted by trjp View Post
    As for copyright - copyright has a specific exclusion (fair-use) which covers reviewing and commentating on media - so long as you're doing that, you're protected against copyright action - so their claim, in this case, is not only wrong but they've even admitted it's wrong by saying their issue is 'monetisation' and not' copyright'.
    Again, Fair Use is not that simple. If it were, YouTube would be full of full length commentary/reviews on all the latest DVD releases that present the entire movie in full. But it's not. You'll be hard pressed to find more than 30 seconds of continuous footage from anything but an official source.

    I might do some digging on this, as I'm curious if the bigger sites like IGN, etc. have contracts with publishers to allow them to use stuff in video footage...

  12. #32
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    Quote Originally Posted by iridescence View Post
    If what TB does doesn't qualify as fair use, I don't know what possibly would.
    A written review with some screenshots. Or a ten second video clip of the game. They'd definitely fall under fair use. Stuff where you're showing a substantial portion of the game makes it woolier. And the fact that people visit the channel for the commentary doesn't necessarily matter. If Radiohead released a new album and put it all up on YouTube, but for the video footage they used the entirety of Harry Potter 1, they'd still get into trouble. Even though everyone was there to listen to Radiohead, not watch the Harry Potter.

    TB is in a worse position as the value of what he provides would be hugely reduced without the video of the game. So the video of the game is clearly crucial to what he does. People are at the channel for him, but without the game, he wouldn't have anything to show them. Looked at from that perspective, it almost seems fair that the revenue be split. Of course, most companies don't mind as they make more from the publicity than they would from a revenue share.

    Add to that that anyone with a brain can see they only did that because he gave them a bad review and I see it as a well deserved PR nightmare for this company.
    Totally. They're being gits. But god knows you've gotta be dumb not to see this coming, and covering your arse would be the sensible approach while copyright law is still what it is.

  13. #33
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    Quote Originally Posted by deano2099 View Post
    Fair Use ain't that simple. Also I watched the TB video linked above and he doesn't really use the Fair Use argument at all. He uses the 'we had permission' argument.
    What he says isn't really relevant (tho it's useful mitigating evidence) - fair use is there to allow criticism, commentary and parody and whilst you can challenge how far people take that, that's what fair use is for.

    Quote Originally Posted by deano2099 View Post
    Again, Fair Use is not that simple. If it were, YouTube would be full of full length commentary/reviews on all the latest DVD releases that present the entire movie in full. But it's not. You'll be hard pressed to find more than 30 seconds of continuous footage from anything but an official source.
    It's all about how far you take it - to provide criticism/commentary or parody of something you don't need to show it in-full and indeed doing so would dilute your input and remove your right to fair use protection anyway.

    As many people have realised, if we started to question the 'right' to use footage from a game when reviewing it we'll get into trouble fast - and that's before you bring-up those strategy and 'how to play' videos which are almost certainly NOT protected by fair use - they're sitting on very thing ice (they exist because the developers like the publicity but if they decided not to like them - they could shut them down very, very easily).

    History has shown companies who produced 'cheat guides' and 'how to play' books for games have generally come to sticky-end unless they had a licence...

  14. #34
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    Quote Originally Posted by deano2099 View Post
    A written review with some screenshots. Or a ten second video clip of the game. They'd definitely fall under fair use. Stuff where you're showing a substantial portion of the game makes it woolier.
    That's more or less how I look at it too - if you're using a substantial part of the work it makes it harder to claim Fair Use. I guess this is why people like Doug Walker use only short clips with frequent cuts and often remove a lot of the sound (or reduce it significantly) - to still claim fair use and to cover a significant portion of the movie (or whatever). I'm not 100% sure on the law of the land but I'd presume that the fact that he's making money off these videos would change the dynamics somewhat too.


    I totally agree with everyone that the devs are being dicks to cover up bad publicity, but TB should be better at covering his backside with things like this. You can't use Fair Use as a shield indefinitely and assume it'll hold up, particularly if you're using long, uninterrupted sections of gameplay. "Let's Play" videos are usually ignored as they're a way to gain free publicity, but if someone is feeling malicious and wants to use a legal excuse to block you, then they might very well be able to do that, regardless of whether it's 'right' or not.
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  15. #35
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    One area of concern to me are these (very popular and often very useful) First Looks/First Plays/Quick Play videos.

    As they're effectively showing-off the game rather than being a series of points/clips and they're often also quite light on the 'criticism', they'd almost certainly not be covered by fair-use.

    I know a lot of people ask if they can 'do a video' of a game (there's someone on the Day One forum asking and being told they could - for example) but I think a lot of others just don't ask and assume what they're doing is OK

    It's not. You have limited rights when you're offering criticism or commentary (or parody) to use limited amounts of content (think about the 'fair' bit of fair use and it should be obvious) and these videos go WAY beyond that.

    They're obviously good publicity and most developers are happy to see them (I was talking to Escape Goat's developer today and he said that a couple of well timed Youtube videos had done him no-end of good with his recent Steam launch) but the fact remains that those videos are under-the-cosh for removal at any time.

    It's ironic, really, that someone who appears to understand the rules and, indeed, has been above board and brought in a LOT of players to a LOT of games, should be targetted in this way.

    I think it can only end badly for the developer but I wonder what they might be starting here...

  16. #36
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    Hah, TB made a video about all this mess http://www.youtube.com/watch?v=QfgoDDh4kE0

  17. #37
    Secondary Hivemind Nexus gwathdring's Avatar
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    A written review with some screenshots. Or a ten second video clip of the game. They'd definitely fall under fair use. Stuff where you're showing a substantial portion of the game makes it woolier.
    I just want to add that a lot woolier stuff shouldn't be woolier in my opinion. I think fair use is way too strict.

    I'd also add that in an x-hour video game ... you could totally argue precedent for minutes upon minutes of footage being fair use. The whole 5-30 seconds thing mostly applies to music. Rule of thumb is 10% or so of the work. Context is key of course; games have lots of repetition and obviously games that can technically be played forever shouldn't be taken as a license to put up 50 hours of material on the web.


    TB is in a worse position as the value of what he provides would be hugely reduced without the video of the game. So the video of the game is clearly crucial to what he does. People are at the channel for him, but without the game, he wouldn't have anything to show them. Looked at from that perspective, it almost seems fair that the revenue be split. Of course, most companies don't mind as they make more from the publicity than they would from a revenue share.
    This is not a particularly meaningful point with respect to fair use. His commentary relies entirely on the game running as he gives it ... but what's more important is whether his use of the content meaningfully alters the content--not how dependent his usage is on that content. In fact, if the content is less central to your work, your fair use case will likely be harder to make! Imagine this: I'm using someone's stuff, they want me to stop and my defense is "look it's not important to me anyway, so why do I have to stop using it?" That's not going to fly in court.

    Rules of thumb: The more you transform it, the less content you use, the less you compete with the original for market space: the more likely you're in Fair Use territory.

    It's not. You have limited rights when you're offering criticism or commentary (or parody) to use limited amounts of content (think about the 'fair' bit of fair use and it should be obvious) and these videos go WAY beyond that.

    They're obviously good publicity and most developers are happy to see them (I was talking to Escape Goat's developer today and he said that a couple of well timed Youtube videos had done him no-end of good with his recent Steam launch) but the fact remains that those videos are under-the-cosh for removal at any time.
    I know I already said this using deano2099's quote, but I want to hammer it home because it's important to me. I don't think they should be under the cosh. Cut-scenes and certain kinds of games as obvious exceptions, the main component of a game is the play. Showing someone what it looks and sounds like is such a non-competitive piece of the experience ... sure it might turn some customers off, but not through competition! It's a perfectly fair and valid kind of damage to the original rather than an unfair misuse.

    I think it's totally "fair" in the colloquial sense. And I think it's disgusting that companies would be ok with it when it helps them and not when it hurts. They might as well just say "Let us fleece our customers" in the C&D letter. That shit isn't ok.

    I know a lot of people who watch lets plays instead of playing or finishing certain games. But those people wouldn't have been buying the game anyway! I have a friend who couldn't play Amnesia becasue it bugged her too much ... but she really appreciated the design and enjoys watching other people freak out over it from the safety of her ... er ... computer ... that isn't running Amnesia directly ... wow I got myself into a syntactically awkward place. Anyway. She was never a viable customer for A Machine for Pigs--but she'll happily watch Lets Plays. I'm sure there are borderline cases. There always are. But fundamentally, a youtube video does not behave like a game. It's just not strongly competitive with the original product -- and that's one of the biggest considerations for fair use! Even if it wasn't, it should be.
    Last edited by gwathdring; 21-10-2013 at 04:24 AM.
    I think of [the Internet] as a grisly raw steak laid out on a porcelain benchtop in the sun, covered in chocolate hazelnut sauce. In the background plays Stardustís Music Sounds Better With You. Thereís lots of fog. --tomeoftom

    You ruined his point by putting it in context thatís cheating -bull0

  18. #38
    It would be stupid and ridiculous if something like this got taken to court but that wouldn't be the first time the law was used badly I suppose. I can say that as someone who likes to look at these kind of video critiques before I buy a game, if I can't find a neutral video about your game on youtube, the chance of me buying it drops dramatically. No one is going to have a game spoiled by seeing the first 10 or 20 minutes. Games are not movies. 20 minutes of a game is equivalent of a 1-2 minute clip of the average movie (even ignoring that many games have little to no story at all to ruin). As far as I can tell the only reason you would lose sales from this is because our game sucks an TB points it out, which I have a hard time accepting as a valid reason for censorship.

    And of course if you don't want him reviewing it, don't send him the game.

  19. #39
    Secondary Hivemind Nexus soldant's Avatar
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    Quote Originally Posted by mouton View Post
    Hah, TB made a video about all this mess http://www.youtube.com/watch?v=QfgoDDh4kE0
    One thing I will say against TB - his entire video is effectively "I want to protect my source of income" which is, ironically, what the knee-jerk removal demand tried to accomplish. TB can wrap it up in "freedom of the press" and blah blah as much as he likes, but the frequent references to monetisation of videos and "Youtube has changed the media!" shows his true motivations. Which is fine, as a fascist capitalist (according to our dearly departed Nalano) I can't fault him for that, but christ your moral crusade for 'freedom of the press' doesn't include making money.
    Nalano's Law - As an online gaming discussion regarding restrictions grows longer, the probability of a post likening the topic to the Democratic People's Republic of Korea approaches one.
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  20. #40
    Secondary Hivemind Nexus c-Row's Avatar
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    Quote Originally Posted by deano2099 View Post
    A written review with some screenshots. Or a ten second video clip of the game. They'd definitely fall under fair use. Stuff where you're showing a substantial portion of the game makes it woolier.
    If 20 minutes are a substantial portion of your game, something is wrong with it.
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