If you’ve checked out your favorite “Let’s Play” channel on YouTube recently, it’s a good bet that you’ve seen the infamous “This video is no longer available due to a copyright claim” notice. These copyright takedowns were common enough before, but there’s been a marked increase of them recently. What happened?
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The way YouTube normally initiates copyright disputes is with a two-pronged approach. They use an automated service called Content ID to scan videos for copyrighted material. It checks for background music that matches known songs, identifiable dialogue from movies and shows, and even the video images themselves are screened against copyrights. The second way YouTube checks for violations is through user input. Anyone can click a couple of buttons on a page to claim the video in question violates copyright. Supposedly, once a threshold of severity is passed or enough claims are made, the video is yanked or the ad revenue is redirected to the copyright owner. Unfortunately, no one outside of YouTube knows what the violation threshold is and the process to dispute a claim is murky at best.
In recent days, the copyright claims on YouTube videos seem to have resulted in a massive wave of violation takedowns. YouTube copyright controversies have been a staple of the “Let’s Play” cottage industry for years, but producers have noted that the amount of takedowns happening now is unprecedented. In some cases, it’s publishers’ notices resulting in a copyright claim, other cases seem to be frivolous filings by third parties, some are just the result of overzealous copyright crusaders. Although YouTube had warned some channel owners weeks ago that they would be cracking down on copyright violations, the scope of the change has caught many producers short.
At this time, YouTube is standing by their policy. They direct those with complaints to go through the official dispute process. Some game publishers say that they will assist those affected by the crackdown to get their productions reinstated, but the process can be long and frustratingly devoid of arbitration. On the other side, Nintendo seems to be actively enforcing their claims. Meanwhile, videos are blocked.
What does this all mean for the budding YouTube entrepreneur?
Let’s start by acknowledging that some people like watching other people play video games. Either they enjoy listening to the commentary, they want to see the on-camera antics of the player, (as in the countless reaction videos for horror games) or they just want to check the game out. There’s value in that video for them. Sometimes literally. That 30 minute video I watched of Fuse probably saved me $60.
The problem has become one of ownership. Who owns the content in these YouTube videos? Is it the publisher of the game, the developer, or the person that sat there and played a chunk of it while talking about his experience while on-camera?
For some popular video producers, the answer seems clear. It falls within Fair Use. They don’t just play games and talk over the video. YouTube personalities like Angry Joe add enough of their own content to their gameplay videos to make them uniquely their productions. Some of his videos contain sketch comedy bits with costumes, props, and other actors. Even his gameplay videos are edited for comedic effect.
For other video producers, the answer isn’t so clear. Unedited gameplay with spoken commentary is arguably on the line between Fair Use and violating copyright. Where does the content of a channel like TotalBiscuit fall? He undoubtedly adds his own spin with voiceover commentary and critique, but his actual video content consists of unedited gameplay.
Supporters of “Let’s Play” style videos say that the commentary is enough unique content to justify their rights. Detractors point out that the length and unedited nature of many of these videos violate the general guidelines of Fair Use. The courts have conflicting rulings in various cases, and the YouTube issue hasn’t actually been judged in court. Yet.
This leaves “Let’s Play” videos in a precarious position. A takedown means a channel is losing a constant stream of ad revenue. Because the dispute process is somewhat automated and one-sided, a dispute is usually upheld until the copyright owner responds to the request. If they enforce the claim, there appears to be no good way to fight the claim currently. Most video prodcuers don’t have the resources to fight, so they move on to the next project and hope that isn’t hit with a claim.
Hey, at least there’s still Twitch streaming.