Youtube users started reporting this week that Nintendo has started claiming revenue for advertisement on user-created Youtube videos which feature content from Nintendo games. Nintendo confirmed this news stating they became a Youtube partner in February of 2013 and registered their copyright content in the Youtube database. Unlike most infringement cases, Nintendo is not asking Youtube to take down potentially infringing videos. Instead Nintendo is issuing content ID match claims to place its own advertising before, within, or at the end of the videos.
Nintendo is targeted videos featuring Nintendo-owned images or audio of a certain length. The most common videos affected are “Let’s Play” videos. These videos are show gamers playing through video games and can vary from a few seconds of gameplay to entire playthroughs of a game. People upload these videos for humor, to demonstrate how to clear a certain part of the game, or just to show off how good they are. “Let’s Play” channels can boast over 100,000 subscribers and individual videos can reach over 1,000,000 views.
As a copyright owner Nintendo has the exclusive right to reproduce their works and to create derivative works under Section 106 of the Copyright Code. Even though Youtube videos are not copies of the software code of video games a video showing gameplay is still a reproduction. Videos which reproduce clips of a game with commentary by a gamer would be considered a derivate work; even though the video may be original enough for its own copyright it is still based on Nintendo works.
Prominent “Let’s Play”ers have already expressed they believe they are protected by fair use. Fair use, defined in Section 107 of the Copyright Code protects reproductions for purposes such as criticism, comment, and more. Many people argue “Let’s Play” videos qualify for a fair use exception because they do often criticize games and have humorous commentary.
It is very likely at least one “Let’s Play”er will sue Youtube or Nintendo to reclaim future advertising revenues. To evaluate fair use courts will look at the purpose and character of the videos, the nature of the Nintendo games, the amount of the games used in the videos, and the effects “Let’s Play” videos will have on the potential market and value of Nintendo’s games. “Let’s Play” videos widely vary from channel to channel so while some videos could be held to be a fair use others may not.
If you host videos Nintendo claimed advertising revenue for you should seek advice from an attorney. Stone Law handles copyright matters ranging from litigation to registration. You can call our office at 732-444-6303 or leave us a message on our website.
On July 10, 2013 the United States District Court for the Southern District of New York ruled Apple was guilty of anti-trust violations for its role in conspiring with book publishers to raise prices for electronic books. The five publishers, Hachette Book Group, Inc., HarperCollins Publishers LLC, Holtzbrinck Publishers LLC d/b/a Macmillan, Penguin Group Inc., and Simon & Schuster Inc., had already settled with the Department of Justice. Apple moved to trial because it claimed it was innocent. The trial was conducted as a bench trial from June 3 to 20 to determine liability and injunctive relief.
At its heart, the court’s ruling determined Apple played a central role in facilitating and executing the conspiracy to raise e-book prices. In the court’s opinion, without Apple the conspiracy would not have been as successful. Amazon was charging $9.99 for e-book versions of New York Times bestsellers and other newly released hardcover books. Apple met with the five publishers in December of 2009 and January of 2010 and suggested prices of $12.99 to $14.99 for its planned iBookstore. Apple promised to set those prices only if it could get agreements from the publishers allowing Apple to offer e-books simultaneously with their hardcover releases.
At the iBookstore’s launch new release e-books were given price caps of $12.99 or $14.99. Apple gave the publishers control of their prices within those caps and also set a 30% commission, similar to the App Store. More importantly, Apple included in its agreements a price parity provision, also known as a Most-Favored-Nation clause, which would penalize a publisher if they did not force Amazon and other retailers to cede control of e-book pricing to the Publishers. This clause was the key piece of evidence which influenced the court’s decision. It essentially prevented Apple from having to compete with Amazon on e-book pricing. In fact, when Steve Jobs was asked why consumers would not just buy cheaper Amazon books he replied, “The price will be the same.”
As a result of these agreements Amazon’s stock fell 9% after the publishers collectively threatened to pull out from Amazon. After Amazon caved in, the prices for Kindle books rose up to Apple’s prices. Average per unit e-book retail prices rose 14.2% for new releases, 42.7% for New York Times bestsellers, and 18.6% across all books from the five publishers. Macmillan also turned down sales promotions to keep prices up. Eventually Random House, the last big publisher, moved towards the same pricing scheme.
Apple argued at court they were not guilty and showed data that e-book prices moved lower in the two years since. However the court was not persuaded and said Apple’s data did not account for other changes in the e-book market. The court also cited many excerpts from emails which show collusion between Apple and the publishers. The court ruled Apple participated and facilitated a horizontal price-fixing conspiracy, which is per se unlawful. Apple was not able to convince the court the agreements had any pro-competitive effects either.
Apple has already stated it will appeal the ruling. Appeals from the Southern District of New York go up to the 2nd Circuit of Appeals. If necessary, the next step after the 2nd Circuit is the Supreme Court. If Apple is still found liable the parties will move to a trial to determine damages.
If you have an issue related to publication or e-books please contact Stone Law at 732-444-6303 or send us a message on our website.