Youtube's stilted, one-sided dispute resolution system allows game companies like Nintendo to confiscate the earnings of gamers who produce hugely popular "Let's Play" videos.
The shakedown has been a scandal since 2013, but the situation is getting worse, not better. The only way to be sure that your Nintendo Let's Play videos won't be removed and your Youtube account suspended is to enter into an agreement with Nintendo that only allows you to review the games they select, and only in ways they permit.
The Let's Play videos are almost all certainly fair use, but there's no good case-law on them, and the uncertainty of the legal outcome, combined with Youtube's automated, one-sided system for resolving copyright complaints makes the creators behind the videos vulnerable to blackmail from Nintendo.
Under Youtube's system, Nintendo is able to claim videos even if only a few seconds of game footage appear in them. If creators dispute Nintendo's claim, then Youtube asks Nintendo to decide whether the claim is fair (!), and after several more back-and-forths, the creators can ask for Youtube to examine the video, long after its currency and relevance has faded. If Youtube rules against them, they get a strike. After three strikes, Youtube suspends them and deletes all their creations.
If you're video maker who's had a video flagged and you want to dispute it, the process is Kafkaesque. The copyright holder alone decides the outcome: It can uphold its claim. It can agree that your video does not infringe its copyright. Or it can do nothing at all for 30 days, during which time all advertising is suspended. Most likely, your video eventually is returned to you—but by that point, the damage is done.
"Videos generally make most of their Google AdSense money within the first thirty days of an upload," intellectual property attorney Stephen McArthur wrote in a post for Gamasutra. McArthur argues YouTube should continue collecting the ad revenue and hold it in escrow until the dispute is resolved.
Should you appeal, the copyright holder has the same three options: agree with you, disagree with you, or do nothing and let you have the video back in another month. At no point does YouTube intercede. In other words, the entire process could as long as two months, with the outcome decided entirely by the people arguing you owe them something.
You're Expected to Basically Doxx YourselfAt any time during this process, the copyright holder could decide to abandon YouTube's adjudication process and simply file a legally binding takedown notice under the Digital Millennium Copyright Act of 1998. All that's required is sending YouTube a written notice that includes the phrase, "I have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law."
At that point, YouTube has no choice but to take the video down. You can file a counter-notice, at which point the copyright holder must take you to court and make its case, or allow the video to go back up.
"Typically they issue the copyright strike, you dispute it, basically telling them that they'll see you in court, and they get to take your video down for two weeks, during which time you're not making anything off of it," Sterling says. "You've made a video no one can view, and you can't monetize. So they just get to screw with your business for two weeks."
Why Does Nintendo Want This Superfan's YouTube Money? [Chris Kohler/Wired]
