Twitch Plays Pokemon Still Going Strong: “Let’s Play” Losing Major Opposition to Fair Use?

February 27, 2014

We are about one year removed from Nintendo’s scorched earth campaign against “Let’s Play” videos on Youtube.  In Spring 2013, the Electronic Gaming giant contacted YouTube,  seeking t the totality of ad-revenue generated from videos featuring Nintendo IP, like those of the popular “Let’s Play” genre: a category of videos where users record and narrate themselves playing a video game.
You can kind of see where Nintendo was coming from here.  “Let’s Play” videos arguably infringe on Nintendo’s exclusive rights under copyright law, reproducing and performing their work publicly, distributing it online, and even perhaps creating a derivate product.  But, the public also has a right to fair use of copyrighted work, and a credible argument exists that “Let’s Play” falls under this haven.
Twitch’s content is very similar to the “Let’s Play” category at issue above.  For those uninformed, Twitch is a website dedicated to the live-streaming of video games; literally a place to go and watch other people play video games.
One stream in particular, Twitch Plays Pokemon, has absolutely exploded in the last two weeks.  Summed up, a Twitch user has uploaded a digital copy of Nintendo’s popular 1996 game, Pokemon Red, and invited the website users to pilot the main character.  All 50,000+ of them.  Simultaneously.  The game really must be experienced to be understood.  But it has resulted in madness, nostalgic fervor on Reddit, the emergence of game item pseudo religions, and, oh yes, 30 million ad-revenue generating views.
It doesn’t just stop at advertising money either. Twitch also solicits each viewer to pay an optional $5 subscription fee for certain elevated privileges on the site.  Results of how much Twitch has raised since the spectacle are unavailable, but the question remains: why hasn’t the traditionally vociferous Nintendo, who went after the ad-revenue of smaller YouTube creators, stepped up to Twitch?  Nintendo arguably has a better argument for Twitch infringement relative to Let’s Play.  The users of Twitch are not just watching a game transformed into video, but actively playing it as they would a normal game (granted one fought over by 50,000 people).  And Twitch has mechanisms to discipline IP infringing content.  Why not push the issue?

This could very well be one of those areas of “business pragmatism,” where what the law says you can do, and what is prudent to do, are completely different things.

It might be Nintendo is recognizing this content is fair use.  More likely, this could very well be one of those areas of “business pragmatism,” where what the law says you can do, and what is prudent to do, are completely different things.  Indeed, a number of major developers have actually encouraged “Let’s Play” creators, enjoying the free publicity and good will the videos freely create.
Goodwill and publicity that Nintendo is in dire need of following news of  slumping console sales. Nintendo’s Pokemon games remain a bright spot.  Perhaps anything that keeps them in the spotlight should be encouraged?  Regardless of motivation, if Nintendo’s stance is softening, a trend some have pointed out, “Let’s Play” may have just outlasted their chief opposition.  Only time will tell the effect on Nintendo’s IP, but things are looking up for Let’s Play-like content.