Nintendo Wants Its Cut

Can someone call Nintendo for me? We’ve been out of touch for a few years, and I’ve lost Nintendo’s number. Also I don’t speak Japanese. But someone really needs to let Nintendo know how this internet thing works.

See, last week Nintendo announced that they will be making copyright infringement claims against people who do let’s plays of Nintendo games. If you upload footage of yourself playing through a Nintendo game, advertisements will will be added to your video. If you already have ads, they’ll just take the revenue and leave you with nothing. Basically, if you play Nintendo games on YouTube then Nintendo expects to get paid. Instead of you.

Now, we can argue about the legality of this all day. You can argue fair use. You can point out that gameplay is a unique audio visual experience each time and so shouldn’t be subject to copyright in the same way that a movie is. We can haggle over the particulars of international copyright law. It doesn’t matter. Nintendo might have the right to do this. They certainly have the power to do this. But either way, it’s an asinine and foolhardy move.

Disclosure: I’m a host on a Let’s Play series called Spoiler Warning. We’re a small, niche show focused on PC games. Typical Let’s Play shows are comedy or product review, while we focus on analysis of game design and storytelling. We’ve got a small audience – most videos get about 2,500 views. We never run ads, we’ve never covered a Nintendo game, and we’ve never made money from the show. I’m just pointing this out to make it clear that while this move doesn’t affect us at all, I do know my way around the LP scene and I do have an interest in discouraging other companies from behaving this way.

While my show is small, the Let’s Play genre can be big business. People can and do make a living producing videos of themselves playing videogames. Sometimes they play through an entire game, sometimes they just sample parts of a game. Others will do a review and simply talk over game footage, or just do a highlight reel of the game. I’m not going to run the numbers on all the different channels, but some of these people have millions of subscribers. Some people make a bit of beer money, some pay the bills, and others get rich. There’s real money at stake here. The problem is, Nintendo isn’t going to get any of it.

People like Total Biscuit, Game Grumps, Tobuscus, and Two Best Friends now have a really good reason to avoid talking about Nintendo games. Yes, talking. When you’re discussing a game you need some video to go with it. If you’re not allowed to use game footage, then what are you supposed to use?

Imagine you’re a content creator who pays the bills by playing videogames. When you talk about a videogame, hundreds of thousands of people see it. You’ve got more reach than all but the largest AAA marketing campaigns. But now if you cover a Nintendo game, then Nintendo will come in and take all of your revenue. All of it. Not split it, not take a cut. They will pocket everything and walk away. It takes time to produce and edit these shows. They have music, animated intros, they write material, and they edit hours of footage. There’s no way you’re going to do all that work just so Nintendo can keep the proceeds. Which means you’ll simply do some other game.

The argument in defense of this is that by playing through an entire game, these producers are spoiling the game, which would supposedly make people not want to buy it. Except, this isn’t how people behave. One thing that sells games more than anything else is having those games be part of our cultural conversation. If everyone is talking about a movie, a TV show, a book, or a game, other people want to check it out and see what the fuss is about. They will do this even if the plot points are spoiled, because people hate being left out. Note how Aliens: Colonial Marines sold over a million copies, even though it’s been universally panned by consumers and critics alike. The game was so hilariously awful and its development so horribly dysfunctional that the story made for juicy gossip, and pretty soon tons of people decided they just had to see the train wreck for themselves.

When people discuss a game, it makes the game relevant. Being relevant is more important to sales than marketing. Apparently it’s even more important than the game being good.

In the case of Nintendo, this “spoiling” concern is doubly ludicrous, since everyone knows exactly what happens in a Nintendo game before it even comes out. We know what happens in a Mario game. We definitely know what happens in a Zelda game. People do not play these things to see how they turn out. More than any other company, people play Nintendo games because they love the gameplay.

As has been repeated many times: Games are not movies. If I see a movie on YouTube, then I’ve seen it. If I see a game on YouTube, then I still haven’t played it. Watching other people play a game usually makes us want to play it too. Just wait for someone to sit down on the couch beside you and see how long it takes for them to start bugging you for the controller. The best advertisement in the world is nothing compared to the power of, “This looks like fun. Give me the controller.”

Imagine what this will look like when Nintendo gets their wish. Millions of people watching videos about Rockstar games. Millions of people discussing Ubisoft games. Millions of people posting hilarious footage from BioWare, Valve, and Bethesda, inventing songs and creating memes. And nobody talking about Nintendo titles.

When people discuss games, ideas spread, are remixed, and even seep into other games as in-jokes and pop culture references. This grand internet remix machine gave us The Cake is a Lie, Arrow to the Knee, Zerg Rush, Gentlemen (and about a dozen others from Team Fortress 2) and of course, Our Princess is in Another Castle. Sure, maybe you got sick of these jokes after a while, but for publishers this stuff is gold. This is the kind of exposure and audience participation that can’t be purchased at any price. These jokes put the games in front of people who never would have heard about them otherwise. Most marketing campaigns are sad, desperate attempts to artificially create this kind of popular enthusiasm.

It’s also worth noting that copyright notices on YouTube can be incredibly abrupt and accusatory. We had one of our Spoiler Warning videos flagged as infringing because of the licensed song that played in the closing credits of Alan Wake. The notices are worded to be intimidating to discourage you from making a fuss. (Not that you can do anything about it. YouTube just doesn’t want to deal with your hysterical emails. You’re expected to shut up and just accept it.) For those who don’t know about this policy, their introduction will happen when they get a notice that ads will now be showing over their videos, and Nintendo will be keeping the proceeds. Nintendo is going to be sending hostile takedown notices to people over pocket change. Even if people don’t care about the money, people will learn to avoid featuring Nintendo games simply because these notices leave you with the impression you’ve done something wrong.

Legal or not, fair or not, this is a horrible move for Nintendo. There is nothing for them to gain from this. They’re not going to get their hands into the cookie jars of big YouTube personalities. Instead, their games will just vanish from popular channels. Their copyright notices will harass the small-timers making little fan videos. It will expunge Nintendo titles from the meme machine and alienate their fans, without making a single yen for the company. This is a backward and tone-deaf move by people who still don’t get internet culture.

The Wii U is already a punchline and the next-gen competition isn’t even out yet. The last thing the company needs is to give gamers another reason to avoid their titles. Heck, Sony is making a major selling point out of the fact that the PS4 will have a single button dedicated to letting people share game footage with their friends. Videogame footage is the watercooler conversation of the next generation. This is the future. Nintendo should be pursuing it, not attacking it.

Shamus Young has a blog, a book, a podcast, a let’s play series, and a background in software. He’s never gonna let Nintendo get their hands on his Internet Money.