@grantheaslip: Sorry gang but I need to plug in my two cents here. As a law student who just spent a term analyzing this exact question, its a really baffling situation that the video creators are in when it comes to YouTube's policies on copyright claims. For starters, fair use is not a basic human right, it's a legislative right that differs on a state-to-state basis, which is part of the problem we have going on here. However the larger issue is that it's what's called an "Affirmative Defense". This means that you essential have to admit you are in fact guilty of using someone else's copyrighted material, however it's ok because your use is transformative of the original work, or is for critical reasons, some sort of justification like that. This is why you don't have the benefit of the doubt when it comes to these claims, you have to admit to being guilty to raise a fair use defense. It's hilarious from a practical standpoint but what can you do, right?

Okay, this is a shitty situation. I watch tons of games content on YouTube, people make wonderful things, and I really feel for every creator that's having to go through this hassle. But comparing it to any Human Rights violation is just demeaning all of the crucial aspects of life that that stands for.

To put it as simply as I possibly can, there is absolutely no right to have your video on YouTube.

No. You are wrong here.

One could also argue that watching a movie is a different experience than reading a book. However, a movie based on a book is a derivative piece, not transformative. I can't read a book and decide to make a game based on that book and claim because you are interacting with the story now, my game is transformative and protected under fair use.

It doesn't matter how you experience the story, it's the story that is protected by copyright, not the medium that contains the story.

@spraynardtatum: That's one of the more disgusting things I've read on the internet.

Talk about being all the way out of touch with reality. I bet you love to yell about first right amendments on privately owned forums and such as well. Douchenozzle.

Yes and no. You can sing Happy Birthday to your kid in a public park without being sued. Your local T.G.I.Fridays can't publicly perform the song for your aunt on her birthday. A TV show cannot use the song in an episode unless they have licensed its use, so singing it in public on the set while filming is a no-no. It all comes down to fair use.

Sorry man.

Maybe it's time we gamers start a video sharing website of our own. The clowns at YouTube seem to think they are to big to fail.

The clowns at YouTube are trying to let anyone be able to upload what they want, whilst dealing with the onslaught of copyright claims. Obviously not in the best way, but they have the money and knowledge to try and make everyone happy.

What do you propose we gamers do with our rad new site when the lawyers come knocking?

WE GAMERS

Relax buddy. It's almost like you might have overreacted a little there.

As a nordic guy myself, it just bugs me when that happens. I totally get that when writing an article with US keyboard, writing those crazy alphabets is a pain in the ass. Which is why I said search and replace it at the end would have been easy, and thus it seemed lazy. But hey, mistakes do indeed happen.

@grantheaslip: Not at you mate, at the conversation. Yea US copyright laws are a bit insane. But cheers on being Canadian! My wife and I are visiting Montreal right now!

Thanks for the great read, Patrick.

Youtube is part of a big societal shift towards all people potentially having access to most of the information and culture there is, soon after it is produced.

I know people do care about drawing lines in the sand about specific rights and specific freedoms online right now. But I think most people have a very settled desire and expectation to be able to use copyrighted material in their online communication with no repercussions.

I disagree with the commercialization of this activity, personally, because I think we've had good entertainment online since the mid 90s with or without it. But I know some people want to fight for their right to serve ads on youtube rather than having a day job.

Anyway, this shift in our culture is way too big to fail. Look at people's activity on your twitter or twitch and facebook as well. So much copyrighted material in discussion, and being modified for jokes, and being streamed, and being used as raw materials for wonderful new things. People want to do it, and they will. The growing pains are based on the expectation that only young hobbyists are sharing this material to avoid paying for it. Youtube infantilizes them compared to more traditional rights holders. In fact, lots of different kinds of people use copyrighted material online for many purposes. Some want to be online entertainers collecting ad revenue for a career now, I guess. Fine by me... Adblock works for those of us that see the net as a sharing and collaborating tool rather than TV 2.0.

Also, VVVVVV is pretty good.

LOL YouTube not only is flagging original created content no they even reject of remove these flaggings XD

My name is Brent ‘Brentonator’ McAhren and I'm part of the No More room in Hell team. I've come here in what has become a dead end struggle to get our 100% original content monetized on YouTube.

As it stands right now, we have been completely denied monetization on the majority of our popular videos with no method for appeals. Google reserves the final decision on all monetization requests.

We've tried multiple methods of refuting the baseless claims YouTube has made requiring "explicit permission to use the rights holder’s content commercially".

David ‘Dman’ Meade's attempts have been to thoroughly satisfy their requirements by posting contracts from team members who have produced content for us, including Garrett ‘ThoughT’ Lindquist’s soundtracks, etc. David’s detailed and thorough process resulted in our Steam launch trailer being denied monetization outright.

My attempt was to go another route and try to clarify that WE ARE the original rights holders based on our internal contracts which are NDA sensitive and can't be shared with you [google]. This resulted in Google requesting written permission from the original rights holders but, as our contracts state, and I just told them, we are original rights holders with the work being completed under contract.

We have even attempted to blend in by acting like a Let's Play YouTuber using the standard No More Room in Hell video policy and that did not work.

http://www.reddit.com/r/Games/comments/1t9sxi/youtube_rejected_no_more_room_in_hell_monetization/

Seriously?.... It is time for some new service to be born....

Great read overall Patrick.

Only thing I found a bit odd was that you said content creators are unhappy with this situation while only referencing Palsson and VVVVVV. I'm sure a lot of guys are upset, but I feel as though a few more perspectives, particularly from the content creator/game industry side could have sharpened this post a bit. But great read nonetheless.

It's funny how ubiquitous and trivialized theft has become on Youtube. It's not even restricted to just copyrighted material. When someone's shamelessly aping the bit and persona of a more successful and creative person, there's not likely to ever be a cease and desist. He'll tell his subscribers that, actually HE was the first one to put on that costume and do that bit. That's canon to them now.

My brain is an utter void creatively. I wish I had know I could have had an exciting career promoting myself excessively enough to be homogenized and presenting sub-daytime talk show drivel to a lowest common denominator transient clickbait demographic. Until the cheap hits stop coming in, I'll post the "Is Obama a secret Muslim?" thumbnail at least once a week.

I do not believe that if someone is part of the 'press' that they should be granted asylum from copyright claims.

I've uploaded a video once with music licensed under the creative commons license that got flagged. The track had been identified correctly, but it also had been incorrectly attributed to a random music company. All I had to do to remedy this was file a claim, linked to where the music was available under the creative commons license, noted that is was a cc license, and all was good.

YouTube only cares if you are infringing on someone's legitimate copyright (because YouTube could get sued). It's a minor shame that the problems brought up in this article have happened. No person or company mentioned in the article are attempting to do the wrong thing by anyone else. Unfortunately the system arranged by the music licensing company is a little to aggressive on their musician's customers. Perhaps an opt-in social media protection plan for those that want it should be offered for a fee by the distribution/licensing companies? (Yes, even though YouTube does the work of matching the tracks).

YouTube is unfortunately just the stage for all of this to play out. TuneCore and INDMUSIC are supposedly fighting for the rights of their artists - but they do so using rules and systems designed for a time when publishing music required more than a quick upload.

I think YouTube is in the right frame of mind - both to protect itself and to allow people to monetize content they own, it should be allowing claims to proceed. But the companies like TuneCore and INDMUSIC should be better serving their artists, by allowing them to give far-reaching permission to YouTube uploaders - or to provide the proper legal permissions to allow content that broadcast as part of the video game it was licensed to, separating it from videos that are using music unfairly.

I think TuneCore and not YouTube, is the company digging its own grave here. Going forward, if you were composing game music - would you work with a company that has a history of targeting YouTube accounts without talking to you about it first? And as a game developer, would you license from these companies, if this is something that may happen to your customers?

I don't think you could claim fair use if you sing it in a pub or a park or whatever just because it's someone's birthday. It's not exactly educative, or critique or a parody and you are performing a song without permission. Even having your radio play a song too loud can get you into court. Examples are PRS suing Kwik Fits for copyright infringement because their staff radio played the songs too loud and they didn't have the rights to those songs. Karaoke nights lead to cases, reading books aloud where other people can hear it is illegal, etc.
We commit copyright infringements left and right because the system is completely broken.

It's not because of someone's birthday. Yes, you are using someone else's copyrighted work in a non-transformative way without permission. You have to judge each case by the four factors that determine whether or not it's fair use.

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

You can make an argument for whether or not something is fair use based on this, then a court will decide if your argument has any merit.

I always get nervous with big systems like this being put into place. I guess I'm just too cynical. I'm giving Youtube the benefit of a doubt that it's doing its best to stay neutral (which is should) while trying to make nice with both independent video producers and major companies. I still can't help but feel unease though, especially with the recent issues that have come up from this ID system.

I guess it boils down to the big companies. I don't actively hate them but I don't fully trust them either. With this Content ID system I just see too much room for abuse. Abuse namely from the execs in charge who want a total strangle-hold on what they do legally own. The whole SOPA ordeal just happened (and hasn't really ended but anyway...) and I just can't help but see some parallel with what Google is doing with Youtube now.

I'm not siding with the Let's Players, if they're serious about their videos they'll find other means to keep doing it. I'm just worried about the new comers. How can we know if this ID system will ruin attempts by people who want to discuss or review TV, movies, games, etc, by using clips from said media? Will these attempts be flagged and taken down because, say, Microsoft didn't like someone using 10 seconds of the Halo theme during a video?

That's what really makes me nervous about stuff like this. We, the average joe's, are expected to trust that these rich and powerful companies won't abuse systems like this. Especially when they'll suffer little to no blow back if they do end up abusing them.

I wish that people would stop blaming copyright law. Copyright law isn't the problem. Youtube is the problem. They refuse to defend the fair use rights of their content generators and users. It's hard to think of another corporation nowadays that shows more contempt and disregard for the satisfaction of its customers. They are the modern equivalent of a shitty cable company that can treat you any way that they want because they have a monopoly.

The problem is that they technically don't, as there are TONS of other video streaming sites. Eventually YouTube's going to get what it apparently desires - a mass exodus of gaming content from their site as it becomes impossible not to get flagged there.

People say that sarcastically but what if that is exactly what they want? What if they've seen the legal writing on the wall, crunched the numbers and decided that the best plan is to just push all this stuff out?

Wanna make it even juicier? How about push them all out, see where they all go, and then buy that!

Considering every games developer/publisher other than Nintendo has washed their hands of this fiasco, and even gone so far as to offer help, I wonder if it really is legal ramifications or just Youtube being unwilling to fix the flaws in their automated system.

The problem is part confusion over the concept of fair use and how it applies to these videos, part due to an already broken and easily abused copyright system, and partially the current media overlords' complete and utter inability to understand the concept of creators willingly allowing people to use/share their work without trying to get a cut of everything.

I mean, look at TuneCore's tweet:

"...don't know them, how could you give them permission to use your music? It's claimed for you, since you wrote it."

What is this, 1980? No, he doesn't know them.

There's this little place called the internet. Turns out it's a very powerful tool for getting your work out there to more people. You don't even have to lift a finger or spend a cent going through some shitty ad agency looking for their cut of your profit. All you have to do is sit back, let people freely promote you or feature your work on their highly popular broadcasts/videos, and reap the benefits of your new-found notoriety.

Free advertisement, free fame, no shady ass companies looking for their cut in between for promoting you or "protecting your work."

Everyone please, take your constructive criticisms that you post into comments on here, and e-mail them in a formatted manner to your representitives of your state. They listen to their constituents and will form general opinions of manners such as this in the future when it comes up based on the popular decision from their constituents. Help be the difference instead of just commenting to no avail!

watching all this unnecessary work being forced on people to deal with on a case by case basis because this automated system messed it all up, when ironically the automated system was supposed to make things easier. It just made things a lot worse.

This shows how much they don't get it!

Giant Bomb should use the awesome wiki and have a youtube copyright section in the games, like a credits section or something, that will list the things that get flagged on youtube videos. It will be an awesome resource, and lots of people will check that information! Seriously! :D The GB wiki is the best, such a useful tool that needs to have more light shined on its value. I feel we take that thing for granted and it has a lot of unused potential, like the possibility of using the wiki to inform all youtubers and fans of what games are getting flagged by what and who.

If the GB wiki was used as a place for people to collect that information, it will no doubt add value to the wiki, and get a lot of people looking at it and adding information with proof since its an important thing to a lot of people that it gets sorted out, and it seems to me that the GB wiki is one of the only places that can help sort this out.

I have also had youtube videos of music I made get copyright notices.

I think the best way to solve this is to write for example on the BioShock wiki page on GB, that it has a song by Django Reinhardt that will get flagged by youtube....and so on and so on.

Thanks Patrick once again for another great article continuing to prove how great you are as a writer! :D Well well beyond the regular grammar and spelling errors of Kotaku, this is actual journalism, making a point, narrowing in on a specific thing when shining light on the bigger picture.

Thank you. You are no doubt inspiring a new generation of writers with your quality.

so is this all about music or would a gameplay video not featuring music be flagged too? Like if someone were to just turn the BGM off in a game and record the game with only SFX and no music?

I just realized something from the title.

@patrickklepek IS TOTALLY TALKING ABOUT THE YOUTUBUROBOROS!!!! THE END IS NIGH, @mattbodega!!!! THE END IS NIIIIIGH!!!!

After all thats going on with youtube im giving daily motion a go, a smaller site, but, seems great so far.

Plus classic game room has moved there