Russ Crandall's retrogaming YouTube channel stands on the precipice of doom because of the platform's three-strikes rule. Nintendo has issued two DMCA takedowns, against videos showing Nintendo games running on other companies' hardware, and Crandall knows the game is up. The Verge's Sean Hollister:
Even among content creators, Crandall doesn't seem like the kind of person Nintendo usually threatens — he's known for advocating that people should buy Nintendo products before they use emulators and often shows off physical cartridges in his videos to drive that message home. … It seems like his uses could be brief, limited, and educational enough to satisfy the four-factor fair use test, and arguing that could genuinely get him out of YouTube purgatory. I could easily find dozens of similar examples in our journalism here at The Verge. But in order to submit what's called a "copyright counter notification" with YouTube, which argues that he's been inaccurately targeted and isn't infringing on someone's copyright, Crandall would have to open himself up to a potential Nintendo lawsuit.
Nintendo is zero-tolerant. It has has a long history of disinterested hostility to fans doing anything unsanctioned with its intellectual property.
In one video, he only showed the title screen on the game running on non-Nintendo hardware. …
Crandall says that even YouTube initially thought that perhaps Nintendo made a mistake when targeting him. He's part of the YouTube Partner Program, and his designated partner manager told him to sit tight while YouTube asked Nintendo if it might retract its own takedown requests. But Nintendo wouldn't, and YouTube has now told him he's on his own.
The bottom line is simple: if you show Nintendo games running on anything but Nintendo hardware, Nintendo is inclined to file a takedown notice and YouTube will take it down irrespective of the legal credibility of Nintendo's claim. In most cases Nintendo isn't using ContentID, YouTube's private copyright enforcement system, but hitting the company with real-deal DMCA takedowns that oblige YouTube to remove access to the content. YouTube is not obliged to further censor, demonetize or ban those targeted by DMCA notices, as it frequently does. In practice filing a counter-notification to a DMCA notice will make an enemy of both whoever filed the notice and an automated YouTube bureaucracy designed to minimze YouTube's exposure to risk and liability. Even if the black and white of the law is overwhelmingly on your side, you will lose everything material immediately for a chance at abstract victory years in the future.
If you make a living on YouTube, you work for YouTube. You are an independent contractor supplying content to it and you are dependent on its whim and favor. You have accepted its policies and it can cut you loose whenever it likes for almost any reason. This isn't a defense of it, it's just what you need to accept if you want to make a living or a life as a YouTuber.
