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orcishgamer: "Making money off of someone else's work" is a frequent justification for some pretty poorly thought out arguments. We have a metric fuckton of time honored American professions that do just the same, including much of entertainment journalism. There are people, in fact, who get paid to do nothing but analyze the work of a specific artist for Freya's sake! Furthermore, if people want to pay me because they think I'm hot shit when I race a Porsche around a track that doesn't entitle Porsche to that money even though one could argue more human effort, design, and expense went into that car than my use of it.
You are aware that you DO need a license to make commercial use of someone else's IP, right? Movies can't just use whatever trademark they want, even TV brands need to be licensed if they appear in some scenes. If someone decides to make money by making videos while driving a Porsche, then yes, it's IP infringement, unless they get the license from Porsche.

And even then, the car analogy doesn't quite work here. You have to be careful when making comparisons between material and immaterial goods because they're naturally different. You can't really "experience" a material good just by watching a video on Youtube. But you can experience a movie, a song, a book, or a game (to a smaller scale). So no, your analogy is far from being accurate in this case.

We all know that today's games are pretty scripted and story-driven, so yeah, you can get PART of the experience by watching a Let's Play. Look carefully, i'm NOT saying that playing the game is the same as watching it, but i think that IT IS possible to get part of entertainment for free by watching a LP video depending on how scripted, linear or story-driven a game is.

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orcishgamer: But if that doesn't sway you (and I suspect it won't) you should still watch that TotalBiscuit video Hessusio linked, because he effectively deconstructs the notion you're suggesting in a way that I cannot.
I did watch it. His arguments are pretty solid, but i still don't agree with him. I don't quite agree with the notion that "since you're the one playing it, you're free to do whatever you want with it".

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orcishgamer: Nintendo is not only morally wrong on this one they're actually cutting off their nose to spite their face.
How exactly is Nintendo being morally wrong? The simple fact that we are discussing this subject is enough to prove that "morals" don't really apply here. There needs to be at least a mininum acceptance for something to be considered a moral issue. Do you mean Nintendo is morally wrong for charging money for unauthorized use of their IPs?

Nintendo didn't even block LP videos, they will just get some revenue from the ads. In my opinion LP videos should be done out of good-will, not to make money. In case a LPer does get money just by playing a game and making silly comments i see nothing wrong with the publishers/developers getting a chunk of the money for the IP he's using to make money.
Post edited May 17, 2013 by Neobr10
While they have the full right to do this with their copyrighted work, I bet LPs spur sales more than anything else. Shortsighted of them.
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StingingVelvet: While they have the full right to do this with their copyrighted work, I bet LPs spur sales more than anything else. Shortsighted of them.
Now we await the repercussions/backpedal/massive fallout.

I'll be there with popcorn.
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orcishgamer: So even as they pull their heads out of their ass to quit fucking small/indie/3rd party devs they keep pulling their other same old shenanigans.
I'm surprised you mentioned that. There are many more developers unhappy with Microsoft than with Nintendo (Phil Fish, Edmund McMillen, to name the most famous), which is why most indie developers are moving into PSN/eShop instead of XBLA.

Unless you want to convince me that charging thousands of dollars to host a patch for Fez is being fair to indie developers.

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orcishgamer: Yeah I don't expect Nintendo to change over night, they are a big ship, after all. But when a lot of your main IPs are coming up stale, your major living room console is coming up DOA (seriously, they'd have to pull a Pokemon MMO out of their asses to save the Wii U by now) you'd think they maybe could think twice before pissing off gamers.
You mean like the 3DS was DOA when it was released? Think at least for one second before unleashing your Nintendo hate. The console has just been released, it just needs more games and a price cut, it's too fucking early to judge a 6 months old console. The 3DS was just as slow on launch and now it's selling like hot cakes.

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orcishgamer: Even EA feels free to give them the big "fuck you and shove your Wii U up your ass!"
EA has never been a huge Nintendo supporter since the Genesis/SNES era. Nintendo has managed to live without EA and it will continue to do so.

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orcishgamer: So now they're left with old IPs that most of their teams are failing to leverage into anything that isn't unpleasantly tired... umm "oops".
Gears of War and Halo, the only Xbox IPs worth mentioning, are not really refreshing either, are they? There is one Zelda game for every 3 Halos and 4 GOWs. I guess it isn't hard to figure out which company is trying to milk their series to death. It's just a matter of fact.

As for the teams, which good internal development team does Microsoft have? 343 Industries? LOL. Microsoft is a joke when it comes to internal development. Retro Studios alone is better than anything Microsoft currently has.

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orcishgamer: But hey, we'll be able to play our iOS games on Wii U soon, I'm sure that will balance it all out!
At least no one has to be always-online to play Wii U games.
Post edited May 17, 2013 by Neobr10
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Neobr10: If someone decides to make money by making videos while driving a Porsche, then yes, it's IP infringement, unless they get the license from Porsche.
Not in the US it's not.
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Neobr10: You are aware that you DO need a license to make commercial use of someone else's IP, right?
No you don't, there's many exceptions already codified into case law and many more common law exceptions, EVEN when the entire "work" has been used AND you've made money. I'm speaking purely from a US standpoint here, but since this discussion is about Youtube it's the one that most applies.
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Neobr10: We all know that today's games are pretty scripted and story-driven, so yeah, you can get PART of the experience by watching a Let's Play. Look carefully, i'm NOT saying that playing the game is the same as watching it, but i think that IT IS possible to get part of entertainment for free by watching a LP video depending on how scripted, linear or story-driven a game is.
This argument may be worth debating on moral grounds but I'm not aware that it factors in any way into Fair Use or any other US case law. Please let me know if you have an actual case where it did.

If you're not aware of one then quit arguing it as a legal issue, it's not.
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Neobr10: The simple fact that we are discussing this subject is enough to prove that "morals" don't really apply here.
No, morals apply, you and I apparently simply have different moral values with regards to it.
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Neobr10: Do you mean Nintendo is morally wrong for charging money for unauthorized use of their IPs?
Yes, they are, it's not at all legally settled that they are entitled to demand permission in this case. In addition they have destroyed some works on Youtube that consisted of criticism and other types of content (apart from LPs), some of these are EXPLICITLY protected in the US and EXPLICITLY granted the right by law to use the work without any permission whatsoever. In said cases not only is Nintendo morally wrong, they are legally wrong.
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Neobr10: Nintendo didn't even block LP videos, they will just get some revenue from the ads.
They jacked a meaningless (to them) amount of money from people who very well may have needed it to do their shows and pursue their passions. So you can trivialize it if you want, I still think it's a dick move and I doubt I'm not alone.
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Neobr10: In my opinion LP videos should be done out of good-will, not to make money.
As you said, this is an opinion, not a fact, and there's really no universal reason this should be true.
Post edited May 17, 2013 by orcishgamer
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Neobr10: I'm surprised you mentioned that. There are many more developers unhappy with Microsoft than with Nintendo (Phil Fish, Edmund McMillen, to name the most famous), which is why most indie developers are moving into PSN/eShop instead of XBLA.

Unless you want to convince me that charging thousands of dollars to host a patch for Fez is being fair to indie developers.
I fail to see how MS being bigger douches recently erases the longstanding douchebaggery of Nintendo with regards to these people. Nintendo straight up refused to pay indies on MANY occasions. They've been outright hostile towards them in the past, in fact towards 3rd parties in general.

As for MS, Fez wasn't released as an indie game, it was released as a XBLA game, which probably greatly boosted the revenue Mr. Fish got. IIRC he actually fucked up his patch and wanted "backsies" to do another one for free. I think there's quite a bit of blame to go around on Fez on XBLA.

I know some indies are sick of MS and frankly if they think PSN or WiiWare is a better deal, they should by all means go there. MS will either change it's tune (as Nintendo recently has) or lose a lot of that kind of content to their competitors.

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Neobr10: You mean like the 3DS was DOA when it was released? Think at least for one second before unleashing your Nintendo hate. The console has just been released, it just needs more games and a price cut, it's too fucking early to judge a 6 months old console. The 3DS was just as slow on launch and now it's selling like hot cakes.
No, not like the 3DS because handhelds aren't like living room consoles. The Wii U is a shitty console, imo, and it actually has some real issues. I already explained why I didn't like it and actually getting to play only reinforced this in addition to highlighting additional issues. The fact it's unlikely to get the games I want to play makes it a non-starter. I was sick of Mario games before the Wii even came out (though Galaxy wasn't bad) as well as much of the other famous Nintendo IP. The WiiU needs third parties more than previous consoles did and I'm not at all certain it's going to get them.

The DS handhelds always have had Pokemon to drive adoption, if nothing else, the fact Black and White 2 didn't come out on 3DS was telling. Apparently they feel safe enough that X+Y now can. That's fine, it has games and the hardware isn't tragically awful (despite having some pretty glaring issues).

The Wii U is actually awful to play, many of the games are awful, it'll be a year before we even have a chance to see if that will be rectified, even so, my issues with the tablet are likely to remain.
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Neobr10: Gears of War and Halo, the only Xbox IPs worth mentioning, are not really refreshing either, are they? There is one Zelda game for every 3 Halos and 4 GOWs. I guess it isn't hard to figure out which company is trying to milk their series to death. It's just a matter of fact.

As for the teams, which good internal development team does Microsoft have? 343 Industries? LOL. Microsoft is a joke when it comes to internal development. Retro Studios alone is better than anything Microsoft currently has.
Yeah but I have a metric ass-ton of other great fucking games for my 360 that aren't part of those series.

I'm not trying to argue "lol MS is bettar", I don't even fucking care. The point is about Nintendo and the relevance of their internal teams has quite a different bearing on the argument given how much they leverage their own IP to drive each generation of console.

Why is this turning into a Nintendo vs. Xbawx debate, anyway? Did I somehow bring it up? Are we having a console war now?
Post edited May 17, 2013 by orcishgamer
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Neobr10: At least no one has to be always-online to play Wii U games.
What the fuck? Are we still on this shit? Can we maybe wait until next month instead of pulling shit out of our arseholes to support our arguments?

And maybe, again, we could just skip the console war shit as this is precisely about Nintendo.
Post edited May 17, 2013 by orcishgamer
Not going to touch the legal side of things, because quite frankly it's irrelevant. Ultimately it's a dick move by Nintendo, targeted at some of their biggest fans, and with any luck those making the Let's Play videos will simply write off Nintendo and completely ignore their games from now on.
Great...we're getting into a console war thing now? To think this was going so well for a discussion. I'm a Nintendo fan and all (hell, I like Skyward Sword), but even then I have to agree with Orcish and TB. This was a really bad move from Nintendo.
Post edited May 17, 2013 by RayRay13000
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Hesusio: TotalBiscuit just uploaded his own analysis on the matter. I must say, he did an absolutely fantastic job of it.

http://www.youtube.com/watch?v=6yX4io2O4EI
I've said in the past that I wasn't much of a total biscuit fan based on what little of him I had listened to. Went into that video expecting him to say at least one thing that I thought was annoying or a poorly made argument, but I actually found myself finally liking him
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RayRay13000: Great...we're getting into a console war thing now? To think this was going so well for a discussion. I'm a Nintendo fan and all (hell, I like Skyward Sword), but even then I have to agree with Orcish and TB. This was a really bad move from Nintendo.
I'm just sitting here with my popcorn and occasionally peeking in.
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DarrkPhoenix: Not going to touch the legal side of things, because quite frankly it's irrelevant. Ultimately it's a dick move by Nintendo, targeted at some of their biggest fans, and with any luck those making the Let's Play videos will simply write off Nintendo and completely ignore their games from now on.
I think that's the general consensus of the LOGIC party.
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Hesusio: TotalBiscuit just uploaded his own analysis on the matter. I must say, he did an absolutely fantastic job of it.

http://www.youtube.com/watch?v=6yX4io2O4EI
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CaptainGyro: I've said in the past that I wasn't much of a total biscuit fan based on what little of him I had listened to. Went into that video expecting him to say at least one thing that I thought was annoying or a poorly made argument, but I actually found myself finally liking him
Totalbiscut is an acquired taste, I didn't like him first. Then I watched the hilarity that is better episodes of the TGS Podcast and the breakfast show known as Terraria.
Post edited May 18, 2013 by Darvond
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orcishgamer: Not in the US it's not.
Yes, it is, ESPECIALLY in the US, which enforces IP protection more than other countries.

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orcishgamer: No you don't, there's many exceptions already codified into case law and many more common law exceptions, EVEN when the entire "work" has been used AND you've made money. I'm speaking purely from a US standpoint here, but since this discussion is about Youtube it's the one that most applies.
The exception is "fair use". Using an IP for commercial purposes does not qualify as fair use. You can't use names, characters, trademark, copyright, designs, or anything protected by IP laws for commercial use without proper consent from the owner. This is the rule for pretty much every legal system (except for China, i guess).

Why do you think racing games need to license cars? Why does EA pay a shitload of money to license teams, players and leagues in their sports games? Because they like to burn money?


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orcishgamer: If you're not aware of one then quit arguing it as a legal issue, it's not.
Ok, if it's not a legal issue why did Google accept Nintendo's copyright claims? Why did Google remove videos from old Sega games on request? Because they're a company that care about ethics and their fellow partners? Give me a break, they don't want to get their fucking asses sued, that's the reason. So yes, it's a legal issue.


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orcishgamer: No, morals apply, you and I apparently simply have different moral values with regards to it.
Then tell me: which moral value did Nintendo violate?

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orcishgamer: Yes, they are, it's not at all legally settled that they are entitled to demand permission in this case. In addition they have destroyed some works on Youtube that consisted of criticism and other types of content (apart from LPs), some of these are EXPLICITLY protected in the US and EXPLICITLY granted the right by law to use the work without any permission whatsoever. In said cases not only is Nintendo morally wrong, they are legally wrong.
Let's get facts straight here: HOW in the fucking world did Nintendo destroy anyone's work? They haven't taken down ANY videos, they'll just take the revenue for the ads. People are still free to make as many LP videos as they want, they just won't get the whole revenue.

LPs explicitly protected by law? I doubt that, but since i'm not familiar with US laws i won't rule it out. And even worse, LPs with PAID revenues being protected by law against the LEGITIMATE IP owner? Shit, i think i need to abandon my law course. This goes against every principle IP protection stands for.

You really mean LPers have the "right" to get money by exploring an IP even against the will of the original IP owner?

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orcishgamer: So you can trivialize it if you want, I still think it's a dick move and I doubt I'm not alone.
You can trivialize it if you want, i still think it's a fair move and i doubt i'm alone.
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orcishgamer: I fail to see how MS being bigger douches recently erases the longstanding douchebaggery of Nintendo with regards to these people. Nintendo straight up refused to pay indies on MANY occasions. They've been outright hostile towards them in the past, in fact towards 3rd parties in general.
But that's the point, the "douchebaggery" comes from Microsoft as well. In fact, i'd argue that Microsoft is the biggest douche right now, since Nintendo is progressively chanings it's stance on indies and third-party. Sony seems to be the only company to be pretty friendly to both indies and third-party.

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orcishgamer: As for MS, Fez wasn't released as an indie game, it was released as a XBLA game, which probably greatly boosted the revenue Mr. Fish got. IIRC he actually fucked up his patch and wanted "backsies" to do another one for free. I think there's quite a bit of blame to go around on Fez on XBLA.
The fact that Phil was not the first one to point out this practice does make me think Microsoft is the one to blame here. Valve had a similar experience with Left 4 Dead on the Xbox: they couldn't release the first DLC on Live for free because Microsoft wanted money for it, while on the PC all DLCs were free. As far as i'm aware Steam doesn't charge for updates (if they did Paradox would probably be bankrupt by now), neither does PSN.



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orcishgamer: The WiiU needs third parties more than previous consoles did and I'm not at all certain it's going to get them.
I agree that it needs more third-party support. However, the fact that they nailed 2 exclusive Platinum titles and 3 exclusive Sonic games make me slightly optimistic. The problem with third-party support comes from the N64 era and Nintendo is still alive and kicking.


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orcishgamer: The Wii U is actually awful to play, many of the games are awful, it'll be a year before we even have a chance to see if that will be rectified, even so, my issues with the tablet are likely to remain.
That's your opinion, not a fact. Yet i fail to see how the Wii U is "awful" to play if the Gamepad has exactly the same button layout as any standard controller, just with a touch screen on it. And even if it bothers you so much you can just buy the Pro controller which is EXACTLY the same as the Xbox 360 controller.
And which games are awful? It doesn't even have that many games, and most of these are multiplatform titles. I still haven't seen shovelware like the Wii had.


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orcishgamer: Yeah but I have a metric ass-ton of other great fucking games for my 360 that aren't part of those series.
Which are probably multiplatform titles.

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orcishgamer: I'm not trying to argue "lol MS is bettar", I don't even fucking care. The point is about Nintendo and the relevance of their internal teams has quite a different bearing on the argument given how much they leverage their own IP to drive each generation of console.
This means that Nintendo's IPs are very strong, they're system sellers, basically. I can't see how this is a negative point.

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orcishgamer: Why is this turning into a Nintendo vs. Xbawx debate, anyway? Did I somehow bring it up? Are we having a console war now?
It's not, i'm just pointing out facts. I don't give a flying fuck about console wars, i have all 3 current-gen consoles, a Wii U, and i'll probably buy both the PS4 and the next-Xbox at some point (unless the next-Xbox has always online, in which case i'll boycott it completely). I just care about playing good games.

What i wanted to point out is that part of your criticism on Nintendo is unfounded.
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orcishgamer: What the fuck? Are we still on this shit? Can we maybe wait until next month instead of pulling shit out of our arseholes to support our arguments?
Isn't this exactly what you did in your previous post? I just threw an unfounded argument back at you.
Post edited May 18, 2013 by Neobr10
It's mindboggling how out of touch these big game companies really are, it's like they live in a different reality from their customers.

They are going to have to adapt though, every day more and more gamers are being accustomed to being able to have a "close" and informal relationship with developers. Indie devs will reply directly on forums etc to the requests and questions of fans, which gives a sense of personal connection that these inhumanely massive corporations with their customer service departments simply cannot.

I mean, the very idea of trying to get revenue from LP's, when LP's themselves ARE ads for the games.... it's just.... bloody unbelievable. The person/s at Nintendo who came up with that idea obviously have no connection or understanding of their customers and how gamers think and what they value.
This does bring up a future question.
I was thinking about making video reviews to place up on GOG and other sites of the games I play to show both what I am talking about in some context and to elaborate more then I can in writing.
I have no problem with these potential videos having adverts for the companies which the game originated from, but as I intended to place them up advert free, if say EA joins this band wagon and begins searching out content I could be shut down for poor standing before I got even 1/100th of the games I own reviewed.

I would rather that Nintendo make their own LP videos and tell others they cannot make money then attacking others work for money.