Recently Nintendo updated is its “acceptable use” policy to allow for YouTube creators to monetize their videos that feature their games. This may seem like a relatively benign bit of news, but the reality that underlies this news it a bit concerning. You see, in the United States, our copyright laws that are on the books are pretty clear in allowing things like walkthroughs and game reviews to be monetized by content creators. This is because in the United States we have “fair use” which is defined as “any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work”.
So, while professional gamers are including some if the game company’s copyright material, they are still provided substantial content above and beyond the game itself. In fact, the core content is really the review of the game, its features, and playability, rather than the game itself (watching someone play Skyrim online is certainly not the same as playing it yourself).
So, why is Nintendo updating its policy if it was previously putting on theoretically unenforceable restrictions? Because internet companies, primarily Google, and YouTube have actively redefined fair use by leaning heavily in favor of large entertainment companies over small-scale producers. This certainly isn’t the fault of YouTube though, as they were the victim of constant barrages of bully lawsuits to try and shut down their platform. Now that their early days are past them and they are a media giant themselves, I think it is time to reevaluate their strategy. They still have to deal with lawsuits from large media companies, but I think it is time they push back a bit more.
We need to have a real public discussion about fair use and outline more direct examples of what qualifies because as it stands, it is nothing but a lawless landscape where the company with the most expensive legal team wins. As of now, we are in a position where a company’s freedom to sell its product, and the freedom of individuals to develop new enterprising business models are put in conflict. It is clear though that in our system today, large media industry leaders have a clear advantage and are capable of strong-arming platforms like Google into demonetizing creative content. It is well past time to put in place specific legal protections for content creators online who are trying to earn an honest living in the growing industry of video game reviews, and professional gaming.