Once it became simple to record, upload, and share digital video over the Internet, gamers quickly became interested in recording themselves playing games—especially with humorous or profane commentary. The phenomenon of creating and sharing so-called "Let's Play" videos took off around 2006 and today has its own channel on YouTube. Practitioners of this self-recording art sometimes refer to themselves as LPers for short.

Now, it looks like Let's Play videos are one more piece of content that's being caught up in YouTube's Content ID system. It's an automated copyright-enforcement system that's been glitchy from the start and often criticized for taking down legitimate content. Remixes of cultural icons have been taken down with no good explanation, as well as NASA content that should be in the public domain. Political satire didn't stand a chance either. Until October, there wasn't even a meaningful appeal system for owners of wrongly removed videos.

It looks like LPers are the latest victims. A prolific LPer named Zack Scott took to Facebook yesterday to complain that several LPers had experienced takedowns of the videos including Nintendo games. A company fan like himself wasn't the right target for automated takedowns, Scott complained, and he said he'd stop playing Nintendo games until the situation was straightened out. "It jeopardizes my channel's copyright standing and the livelihood of all LPers," he wrote.

Scott continues:

I got a Wii U at midnight when I already had one in the mail. I've been a Nintendo fan since the NES, and I've owned all of their systems... I think filing claims against LPers is backwards. Video games aren't like movies or TV. Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don't need to see it again. When I see a game that someone else is playing, I want to play that game for myself! Sure, there may be some people who watch games rather than play them, but are those people even gamers?

After Scott's complaint was reported by GameFront, Nintendo responded—but didn't really add much clarity to the situation. The blocks would stop, but Nintendo would instead append ads to videos that featured its content if the images or audio reached "a certain length." How long? Who knows. Nintendo wants its content "shared across social media channels in an appropriate and safe way," the company said. The company statement goes on:

For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to, or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.

The LPers whose videos have run smack into Nintendo's copyright policy are facing two problems. First, because fair use rules are so murky and decided on a case-by-case basis, an automated system like ContentID is very likely to engage in overreach.

Second, the speech of the fans who love Nintendo is actually unfairly being censored (or in this case, monetized) by a copyright owner. This is a situation where more negative speech would almost surely be protected. If the LPers were highly critical of the companies or products they were discussing, or were provoking them with parody, their speech would likely be protected as fair use. It's the same paradox faced by fan-fiction writers, elegantly summed up by Cory Doctorow in a 2009 column entitled "When love is harder to show than hate."

Homemade videos about gaming are about the best ads a company like Nintendo could hope for. Nintendo's attempt to control and monetize these using ContentID may be a net negative for them in the long term. "[I]t's you LPers who make us want to buy them for ourselves," a gamer named Nicole Perez wrote on Scott's Facebook page. "You make the games look fun and amazing; 150 times better than any damn trailer they will put out."