As for the Let's Play situation, it wasn't YouTube blocking anything at all. YouTube did not claim copyright nor create the blocks; it was other parties claiming copyright and enforced through ContentID. The Let's Play people claimed it was fair. Various groups, including Nintendo and several music organizations, claimed it violated their IP. YouTube followed policy. YouTube's current policy is that in case of continued dispute that goes through counter-notifications or DMCA take-down, the content gets removed until both parties deal with out outside their system. It isn't that YouTube is blocking anything, instead following their policy that they are not a legal mediation service and their "safe harbor" provisions in the law mean if there is a dispute, the best action available is to remove the content until the other people resolve the dispute externally.

I felt Nintendo was given an unfair amount of bad PR for that.

Google, trying to proactively figure out the copyright issues around Let's Plays, contacted Nintendo with a Google's idea of something that Google thought would be fair for everyone. There are four people involve: The distributor (Google), the license holder (Nintendo et al), the video creators (Let's Players), and the consumers (the public).
Google has always taken a cut of the ad revenue, but they were trying to figure out a way to give the license holders a cut, to proactively protect this new industry from lawsuits. This is good and desirable.

Google contacted Nintendo, offering a share of YouTube revenue from Nintendo-related properties. Nintendo said, "You're offering us new streams of revenue? Sure!".
The video creators, however, would have had their slice of the pie shrunk to give the license holders a cut, and ofcourse nobody wants their revenue shrunk, so they protested over it.

Nintendo was caught in the crossfire, and since they were invited into it, didn't have a plan, and so were reacting to the outrage without thinking things through, likely compounded by the language barrier and culture barrier. It wasn't Nintendo of America, but Nintendo itself (Nintendo of Japan) that makes these decisions.

As part of Nintendo's reactions, they fired off copyright claims against Let's Players... because, you know what? The Let's Players are violating copyright laws.

This is similar to the stupid amount of controversy around Valve's 'paid mods', except that a different group of people (the public) got up in arms because their unfairly large slice of the pie got worse. It didn't help that the license holder (Bethesda) wanted an unreasonably large slice as well.

If someone gets something for free, they don't ever want to get it for "not-free", no matter how fair it is.

If someone is making 100 units of currency, they don't ever want it to decrease to 75 units of currency, no matter how fair it is.

You have to look past the outrage, and look at the larger picture to figure out what's actually going on.

It's be great if a new copyright system included things like Let's Plays as protected work, and mandated a small, reasonable, fixed percentage of revenue to go to the actual license holders. Basically, a compulsory license + mechanical license for Let's Plays, such as already exist for music covers and radios playing music.

In my ideal version of copyright laws (not fully fleshed out), things like Let's Plays would be protected, because they create more value than they destroy, on average. Making freeware versions of existing games without permission (before the much shortened copyright terms expire), on average, destroys more value than it creates. "value" here is both economic (for creators) and long-term benefits for consumers.

In my ideal version of copyright laws, some money from Let's Play videos would be funneled back to the copyright holders automatically in a system similar to the music industry. I just don't like the idea of other people being allowed to just record video from playing a game and profit off the game developer in that way, with very little creativity added in. It might create value: advertising, maybe a little customer support / tutorial-style value, etc., but I think it should also more directly provide value to the developer. I should add that the current habit of people turning to videos for everything: video game information, news, learning how to program!!!, makes me feel like a cranky old man. Books still exist, right?

I'd also keep fan-fiction squarely in the derivative work category, under control of the original work's copyright holder. This is mostly personal. I generally think fan fiction is inferior and creatively lacking compared to almost anything else apart from maybe Facebook or app store clones of other games. I cannot image anything good coming into the world by changing any law here. There is enough fan fiction as it is. At least this gives some motivation for people to come up with their own ideas instead of just writing more stories about Han Solo and My Little Pony.

I don't even like the current phenomenon of someone creating a "spiritual successor" to an older game. I want new things.

I wonder, if "fan fiction" was totally legal, how many more Marvel movies would there be from all the other movie studios who would suddenly become big fans of the Avengers after seeing all that money they made? There are already way too many superhero movies. In this alternate reality of legal fan fiction, I wonder if there would ever be another movie without Tony Stark or Wolverine in it.

There is absolutely no way I would go through all the trouble of making a game without (a) getting paid or (b) making something that was completely my own. It's hard for me to even understand why someone would choose to reject both of those options. I even believe licensed games are generally a bad idea for a developer unless it's a seriously valuable license, such as Star Wars or Batman.

For some of those, I like to turn it around a bit.

Let's say one of my own hobby projects becomes hugely successful. I start getting lots of money and popularity and other rewards.

Then let's say other people want to make clones and fan fiction and other stuff out of it.

Some of those I'm probably going to be okay with. I'm okay with some young kids making a fan fiction and sharing with their schoolmates.

I'm much less okay with some east-European company cloning my work and releasing their clones for $0 with ads when I'm charging $5 for mine.

I'm somewhat okay with someone coming up with new story ideas that don't interfere with stuff I've already done, as long as it doesn't interfere with my plans.

I'm less okay with someone posting on the public Internet that My Supergame 2 should have a certain list of features, and pushing for online petitions that I need to put in features that I didn't want into my game.

I'd be strongly against anyone making fanfic of my child-oriented game and turning them into porn characters.



If I reverse it, consider it is my own IP that other people are using for their benefit, it tends to give a little different perspective than me using other people's IP for my benefit. Because the stuff I create, the things I'm trying to build for my own livelihood, depend on those same sets of rules that the megacorps are leveraging.

So for me, I guess the question is "when", how long should a work remain the exclusive right of owner? That is a hard question. I think 20 years is plenty of time to reap the exclusive rewards from a work? I think most creative people don't milk just a single work forever, they are always creating new things.

It depends on the work. Any royalties for Peter Pan have been granted to Great Ormund street hospital in London as a special case and Hollywood still seems to think that it is worth something.
Star Wars, Jurassic Park and Back to the Future are all over 20 years old and still worth a great deal of money even in their original forms without the newer sequals.

Of course lets not forget Disney I think Bambi, Micky Mouse and Cinderella have all been continually raking in the cash non stop without a break for over 60 years.
They are creating new things but new things around the original concept that the copywriter was based on. People spend a lot of time and money creating unique IP and it becomes an asset. Weather they are currently doing anything with it or not is irrelevant as it is an asset that has monetary value. If you want to use it you need to get permission and pay for it.

Speaking specifically about games. How many long dormant titles suddenly got reboots when smartphones became popular?

The bottom line is that most companies WILL licence their IP and you CAN make a game using the IP if you are willing to stump up the cash and follow their guidelines. If you can't afford the licensing fee then you can't really be taken seriously as somebody who will do the IP justice. Also the IP isn't always as expensive as you think I do know people who have managed to get the IP rights for free or on a profit share to use even on commercial products from companies such as Namco, Taito, Konami and Atari.

Nintendo recently decided to disallow Let's plays on the platform youtube.

Let's play is such a difficult thing...

First, it's relatively new (at least, from a popularity standpoint) and jurisprudence on this is largely undefined.

More importantly, every top company is probably struggling with this right now:

[Law Advisor] - This could be dangerous, but we don't know...

[Marketing Advisor] - This could be a great opportunity, but we can't control the outcome...

[Business Onwer] - Ugh... what do I effin' do?!

Also, you have to account for the fact some Let's player contribute a lot through their personality and comments. I've seen some amazing let's players out there, others that were mediocre.

But Let's Play has nothing to do with fanfic: the game is played as it was delivered by the developer, and as such, people are entitled to an opinion of it. The question here is whether people that haven't paid for said games are allowed to view this content to start with. That's a different conversation from Brand management and control over products associated with said brand/ip.

[Law Advisor] - This could be dangerous, but we don't know...

"...and the law requires us to defend our IP from infringement..."

Add in the complication of some youtubers demanding money to review a game.

[Marketing Advisor] - This could be a great opportunity, but we can't control the outcome...

Though they certainly try!

Metal Gear Solid 4 pre-release review agreements: 'You can't mention how long the cutscenes are, or the install size or the length of the install size.'

Shadow of Morder pre-release review agreements: "Traditional video game review outlets were unable to obtain early access to the video game. ... YouTube personalities had been offered early access to the game in exchange for agreeing to a restrictive contract which required them to be positive about it." (and which required them to specifically mention the featured 'Nemesis system')

While these are pre-release agreements, some developers have (post-release) DMCA'd videos that were overly negative, or that get in the way of their current marketing efforts, and so on. Legal protection (and set-priced revenue sharing) is definitely needed for Let's Plays.

Nintendo doing a blanket "No videos until we figure out what the heck Let's Plays even are" is a bit extreme, but also absolutely reasonable considering the legal copyright climate in the USA.