Embarrassing marketing gaffe or reasonable exercise of legal rights?  Nintendo issues “Content ID match” claims on "Let’s Play" (LP) videos featuring their game franchises. Prolific YouTube user Zack Scott speaks out against the move.


What is Content ID?

Content ID is YouTube’s system that automatically detects uploaded videos that infringe copyright.  It works by creating an ID File for copyright protected audio and video material and stores it in a database. When a video is uploaded, it is checked against the database and flags the video as a copyright violation if a match is found.  When this occurs, the content owner has the choice of (1) blocking the video (making it inaccessible), (2) tracking the video’s viewing statistics or (3) adding advertisements to the video.

According to YouTube, Content ID is “very accurate in finding uploads that look similar to reference files that are of sufficient length and quality to generate an effective ID File.” In its early days, however, the automated removal system drew criticism because (1) the algorithm did not account for fair use provisions and (2) there was no appeal process.  Currently, if a YouTube user disagrees with a decision by Content ID, it is possible to dispute the decision.

What are LPs?

“Let’s Play” ("LP") videos generally provide reviews and commentary of video games. Early LPs, known as “Screenshot LPs,” consisted of audio comments voiced-over still screenshots of games while they were being played. More recently, LPs have evolved to include full video captures of the game during the narrator’s play (known as “play-throughs”). Scott’s LP of Nintendo’s “Luigi’s Mansion: Dark Moon,” for example, features 14+ hours of play-through footage accompanied by good-humored commentary and critiques of the game’s flow and “playability.”

Many producers of these video reviews (or “LPers”) make money off the advertisements on their LP channels. Zack Scott’s reviews, for example, have received millions of views to date and his LP channel, ZackScottGames, has over 200,000 subscribers.  A conservative estimate (assuming his ad rate is at the low end of the YouTube monetization spectrum - $1.50 per 1,000 views) puts his earnings at about $200,000 to date. While this may seem like loose change compared to Nintendo’s annual revenues, the volume of copyright material that Mr. Scott has used, combined with his channel’s large audience, has attracted the attention of Nintendo’s market researchers.

Copyright Analysis: Does the Use of Play-Through Footage Fall Under an Exception to Infringement?

While game developers and publishers have the right to control the use and distribution of the media in their games, LPers, like Zack Scott, have argued that the use of video footage in critical reviews should be considered fair use (the rough US equivalent to Canada's "fair dealing" provisions) since LPs provide critical review. In a public message posted to his Facebook page, Zack Scott supported his position with the following:

"Video games aren’t like movies or TV. Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don’t need to see it again. When I see a game that someone else is playing, I want to play that game for myself!"

While this might seem like a sensible argument to those in the gaming community, Mr. Scott should be aware that, in Canada at least, he is more likely to succeed by structuring his argument using the two part analysis set out in paras 49 to 50 of CCH Canadian Ltd. v. Law Society of Upper Canada.

First, Scott could point out that he used the play-through footage for the purpose of criticism and review which does not constitute infringement under s 29.1 of the Copyright Act. Moreover, given that he attributes the footage to Nintendo in each LP, he is protected under s 29.1 (a) of the Act.

Second, Scott would have to argue that his dealing with the protected footage was "fair" by showing that his use of play-through footage fits the six criteria set out in paragraphs 54 to 59 CCH Canadian Ltd. v. Law Society of Upper Canada.

(1) Purpose of the dealing: His role as an LPer, one could argue, is to “research and review” games for the gaming community. Thus, objectively speaking, he must be able to use some of the copyrighted works to illustrate his critique.

(2) Character of the dealing: While his use of the protected work is widely distributed (a factor that weighs against fair dealing), the fact that it is the custom of most LPers to include some play-through footage in their reviews could swing this factor back in favor of fair dealing.

(3) Amount of the dealing: While Scott does have over 14 hours of Nintendo play-through footage on his channel, he could argue that this is actually a small fraction of the total time taken to play through games like Luigi’s Mansion, weighing once again in favor of fair dealing.

(4) Alternatives to the dealing: Nintendo could point out that the existence of “Screenshot LPs” amounts to a reasonable alternative to “Video LPs” and weighs against fair dealing. Scott could counter this by arguing that the LP market had become crowded with LPers who use play-through footage. This resulted in a lack of alternative to his dealing.

(5) Nature of the Work: While Scott did not have permission from Nintendo to use the play-through footage in his LP, the game had certainly been “published” as it was available for purchase by the public. This would weigh in favour of fair dealing.

(6) Effect of the dealing on the Work: It is not clear what effect LPs have on the market value of the game under review.  Just how much influence do LPers have on sales?  Some would argue that LPs actually add market value to featured games because they encourage other gamers to buy them. Meanwhile, others argue that LPs decrease market value of the games since passive gamers can simply watch LPers complete the game online. Without more detailed market analysis, however, this point is unclear.

Nintendo could just as easily argue that Scott’s use of play-through footage is not fair dealing (arguments attacking factors 2, 4, 5, and 6 in particular come to mind). It is worth noting, however, that after Scott's public complaint, Nintendo lifted the blocks on his LPs and chose instead to append its own ads to the videos.

Cost-Benefit Analysis of Nintendo’s LP Crackdown

Legal musings aside, the real issue is whether the LP ad revenues appropriated by Nintendo is worth the loss that could result from LPers who stop reviewing the company's products.  In his public message, Zack Scott stated:

“I'm a Nintendo fan. I waited in the cold overnight to get a Wii. I'm a 3DS ambassador. I got a Wii U at midnight when I already had one in the mail. I've been a Nintendo fan since the NES, and I've owned all of their systems.

… I love Nintendo.... But until their [ContentID] claims are straightened out, I won't be [reviewing] their games [on my LP channel]. I won't because it jeopardizes my channel's copyright standing and the livelihood of all LPers.”

Given Nintendo’s recent disappointing earnings report, one would not fault the company for attempting to herd consumers towards more tightly controlled promotional channels in an effort to maintain control of its brand. However only time will tell whether this move actually results in a further dip in sales due to the loss of exposure through LPers.  Were there gold coins in those brick blocks known as LPs?  Nintendo seems to think not.   

Beatrice Sze is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.