Is posting Game Videos on Youtube really illegal?

[ReddMcKnight]

I was just told on the Youtube Help Forums that posting Game Videos, such as Machinima and Let's Play Videos is illegal. Any truth to this? If yes, how is one supposed to get permission to do it?

[BigTinz]

....who cares?

[Hatta]

No, but that won't stop the game companies from overreaching. Use of outtakes from copyrighted material for the purpose of criticism or scholarship is clearly allowed as fair use.

The problem is the DMCA. As a host Youtube has to comply with any DMCA takedown request it receives, however (in)valid, or it will lose its safe harbor status and become liable for any infringment. Your only recourse is to provide a DMCA counternotice, at which point Youtube must reinstate the video. If the copyright owner wants to fight it at that point, you have a lawsuit on your hands. It's quite clear that review and commentary are permitted by fair use, so you should win that lawsuit, but it will be very expensive.

In short, copyright owners use the legal system to bully people legitimately exercising their rights under the law.

[yomomma1]

No... Or they wouldn't be a partner http://www.youtube.com/user/machinima

[ReddMcKnight]

No, but that won't stop the game companies from overreaching. Use of outtakes from copyrighted material for the purpose of criticism or scholarship is clearly allowed as fair use.

The problem is the DMCA. As a host Youtube has to comply with any DMCA takedown request it receives, however (in)valid, or it will lose its safe harbor status and become liable for any infringment. Your only recourse is to provide a DMCA counternotice, at which point Youtube must reinstate the video. If the copyright owner wants to fight it at that point, you have a lawsuit on your hands. It's quite clear that review and commentary are permitted by fair use, so you should win that lawsuit, but it will be very expensive.

In short, copyright owners use the legal system to bully people legitimately exercising their rights under the law.

So, what your saying is, even if I put up something the company doesn't like, they can take it down, but can't take me to court or something unless I fight it?

[Limewater]

No, but that won't stop the game companies from overreaching. Use of outtakes from copyrighted material for the purpose of criticism or scholarship is clearly allowed as fair use.

I am not a lawyer, but I don't see how Machinima videos or Let's Plays would really count as "outtakes" or to be for the purposes of criticism or scholarship. I mean, a Let's Play is pretty much the antithesis of an outtake.

[Hatta]

Here's the relevant portion of the law:

§ 107. Limitations on exclusive rights: Fair use40

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

1) your videos are non-commercial -- favors fair use

2) is the work factual in nature or artistic? Facts get less copyright protection than art. The artistic nature of games opposes fair use but doesn't outright prohibit it, if other factors are in favor.

3) A short video is negligable in relation to the entire work -- favors fair use

4) There is no potential for your videos to substitute for the game itself in the market -- favors fair use


So it's very clear that this is fair use. Whether you want to fight it in court is up to you.

[Hatta]

No, but that won't stop the game companies from overreaching. Use of outtakes from copyrighted material for the purpose of criticism or scholarship is clearly allowed as fair use.

I am not a lawyer, but I don't see how Machinima videos or Let's Plays would really count as "outtakes" or to be for the purposes of criticism or scholarship. I mean, a Let's Play is pretty much the antithesis of an outtake.

Fair enough, I haven't seen a "lets play". I was going off of what I've seen Redd do.

[Hatta]

So, what your saying is, even if I put up something the company doesn't like, they can take it down, but can't take me to court or something unless I fight it?

No, the safe harbor provisions protect the host (youtube) not the alleged infringer. They could hit you with a lawsuit without warning if they wanted.

[ReddMcKnight]

So, what your saying is, even if I put up something the company doesn't like, they can take it down, but can't take me to court or something unless I fight it?

No, the safe harbor provisions protect the host (youtube) not the alleged infringer. They could hit you with a lawsuit without warning if they wanted.

Well, there goes the neighborhood then. :/ I guess I'll just have to get permission from now on. The only companies I know of that allow videos without permission are Blizzard and Bungie.