There's the fair use

Age of the Geek Column: It's been a while since I've touched on copyright, but something unexpected happened last week that's worth mention.

But first, let's talk about streaming video games.

As counter-intuitive as it sounds, there's a large audience out there interested in watching other people play video games., now owned by Amazon, is the current king of that marketplace, but internet giants like Google, Microsoft, and even Facebook have been trying to get in on the action.

There's a lot of money being thrown around and with it, a lot of questions about who exactly is owed what.

Legally, the issue of utilizing video game footage in video content is a gray area at best.

In the case of movies and television, it's obvious that simply re-uploading content is an infringement on the owner's copyright. You can't just rip the latest episode of a hot TV show and put it online. Well, you can, but Google has an army of bots constantly scanning for such content to take them down as fast as they go up.

With video games though, the issue is trickier. Video games don't play themselves. The player's inputs edge such content into Fair Use territory by virtue of their transformative nature.

Fair Use is a legal defense against copyright, allowing unauthorized use of copyrighted content based on certain criteria. If a parody movie satirizes "Game of Thrones," that's Fair Use. If a movie reviewer uses video clips of that parody movie as a visual aid for their review, that's also Fair Use. If that movie reviewer's review causes a huge controversy and a news organization reports on it, they can show the controversial part because of Fair Use.

There is an argument to be made that the creative input that goes into playing a video game is transformative enough to warrant a Fair Use claim. After all, you're not just watching a game, but you're watching a particular person's performance of the game, often accompanied by live video commentary, original graphical effects, and a score of other alterations.

However, the legality of it all is largely moot because Google, erring on the side of billion dollar companies with expensive lawyers, allows these companies to unilaterally claim rights on any YouTube video they wish, whether they have a legal claim to it or not.

Often this is done through YouTube's Content ID system, which scans every video uploaded onto the site for visual and audio matches to copyrighted content, at which point the copyright holder is given the opportunity to issue a copyright claim on the video, giving them the ability to monetize it or block it at their discretion.

Other platforms utilize a similar system.

In a perfect world, a human being would review the flagged video and determine whether or not it was actually violating the company's copyright before a claim was made. In reality, an automated system simply responds to every flagged video with, "Why yes, that is mine. Send me the money please."

Such has been Nintendo's policy.

While some game publishers have been laid back about the idea of gamers uploading footage of their games to the Internet, Nintendo has become notorious for being on the other end of the spectrum. Their policy has been to claim everything at every opportunity. Gameplay videos, news videos, even videos that don't actually utilize their content at all.

For a content creator to combat illegitimate claims it takes weeks of counter-claims and creators often have to literally dare the company to take them to court before regaining the rights over their videos. In an environment where the bulk of your viewer engagement happens within the first hours of uploading, this has left many creators, particularly ones where YouTube is their business rather than their hobby, avoiding Nintendo content in general just to save the hassle.

In 2015, Nintendo offered what I can only assume they thought of as an olive branch with the Nintendo Creators Program. They would still claim monetization rights on everything they could, legitimate or not, but users that signed up for the program could get a percentage of their ad revenue back. Which is kind of like the mafia robbing your store and then offering you a split of the take.

But that will soon be part of the past. The Nintendo Creators Program will be ending at the close of the year and Nintendo's policy of "claim first, ask questions later" is being replaced by something much more nuanced.

YouTubers and Twitch streamers will now be free to create and monetize video content of Nintendo games in most situations. In practical terms, anything short of raw gameplay footage, void of commentary or any other creative input from the player, should be good to go. This will be a relief to not just news sites, who will no longer have to deal with the hassle of reporting on the latest Nintendo news without tiptoeing around Content ID, but also speed-runners, professional competitors, and casual let's play players, who are now free to do their thing without receiving dozens of copyright claim e-mails.

The announcement came as a pleasant surprise to the gaming community, but the timing was not random. In a matter of days Nintendo will release "Super Smash Bros. Ultimate," a heavily anticipated mega-crossover game that is also the closest thing Nintendo has to an e-sport (sorry, "Splatoon" and "ARMS").

Apparently coming to the realization that it's really hard to promote a game as a spectator sport when you discourage people from broadcasting it, common sense seems to have finally broken through at Nintendo. About a decade too late, but that's typical for anything Nintendo does in relation to the internet.

The new policy is almost shockingly fair and, with luck, will become the gold standard across the industry.

Travis Fischer is a news writer for Mid-America Publishing and will definitely be streaming "Smash Bros. Ultimate" this weekend.