Masae Anela. Courtesy Masae Anela

In 2006, when Masae Anela was 13, she wondered why her dad kept sneaking out in the wee hours of the night.

Eventually, she realized there was nothing untoward going on. Her father was going out before dawn to line up at local stores in hopes of scoring a Nintendo Wii for her. The console had just been released, and Anela, who had loved and played Zelda since as far back as she could remember (her earliest memories, she says, were of watching her mother play Ocarina of Time), wanted to play The Legend of Zelda: Twilight Princess.

Zelda was an outlet for a girl who had been homeschooled since fourth grade and "pretty introverted and not very up for talking to anyone." It didn't get better as she got older, either. "I started developing anxiety when talking to people," she says, "and I had somewhat of a speech impediment."

A few years later, in 2009, a friend convinced her to start producing "Let's Play" videos, in which gamers play through a popular game, comment on the experience as it happens and upload it all to YouTube. If you watch her first video, of The Legend of Zelda: The Ocarina of Time, and compare it to her most recent work—also a Zelda game—it's like meeting two different people. In the first, Anela (a nom de YouTube she uses for privacy reasons) begins hesitantly, apprehension in her voice, not sure why anyone would want to listen. Today, she's effusive, excited, and entertaining. It explains why she's got 50,000 subscribers. Watching her makes you want to play Zelda. She's an enthusiastic ambassador for Nintendo, hyping its games like no other at a time when the company that introduced Super Mario is losing mindshare to Minecraft.

So why does Nintendo want to take her money?

Anela says she was three years into her YouTube career when one of her videos of Twilight Princess got caught up in YouTube's "Content ID" dragnet, in which copyright holders can challenge someone's use of their intellectual property. Ad revenue from her video, YouTube declared, would henceforth go to… Nintendo.

"That was the first time I really got hit," she says. "In that sense, it no longer becomes mine."

This is important, because YouTube videos by enthusiasts like Anela are a big deal. They are where gamers are getting more and more information about new games, and the quality of many videos is on par with network television. The explosion in the quality and popularity of these videos stems from the advertising revenue they can generate. No one is pulling down the kind of money internet sensation PewDiePie rakes in ($4 million a year, according to the Wall Street Journal), but you don't have to make millions to quit your job and earn a living doing what you love.

There's just one problem: Based on YouTube's rules, if you use even a moment's footage from a videogame, the owner of that game could claim all of the advertising revenue from that video, or have it removed. This process unfolds through an automated system that presumes you are guilty until you prove your innocence. You could win on appeal, but only in the sense that your ad revenue or video eventually is reinstated. An appeal also carries the risk of prompting the copyright holder to file a copyright strike against your video. Get three strikes and your account is deleted.

Skate Man Intense Rescue is currently unavailable after the game's creator filed a copyright takedown notice. Screengrab: WIRED

As YouTube, which declined to comment for this story, becomes a more prominent source of gaming news, reviews, and opinions, it risks losing the independent, unfettered voices that helped make that happen. And game publishers who push these cases may find it a Pyhrric victory if it keeps these YouTube stars from talking about their games.

In other words, Nintendo—which takes the most heavy-handed approach among game makers—could be stepping over dollars to pick up pennies. Then again, it could also be creating a new media landscape in which it controls the message, and takes a slice of the revenue besides.

Fair Use and Foul Play ———————-

Content ID is an automated system created by YouTube. It lets copyright owners identify and automatically take action against uploads containing their content.

In a nutshell, copyright owners provide YouTube with a database of searchable material, and YouTube automatically compares uploads against this database. If a match is found—regardless of context—the copyright holder decides whether that video is blocked, muted (in the case of song used as background music in an original video), or monetized with ads of its choosing—thereby blocking any ads the video's creator may have placed there.

The system is highly automated, making it difficult to predict which videos might be tagged. Only a few of the hundreds of videos Anela has posted over the years have been tagged, but it's an ever-present worry. Because Nintendo typically claims her ad revenue rather than insisting the video be removed, she accepts the loss and forges ahead. She says it is "difficult" to know how much money she's lost, "but it's a pretty decent chunk … It's a pretty hefty batch in relation to how much I would get."

Anela's attitude mirrors that of many YouTubers: Whattya gonna do? For all the hours she invests making the videos, the footage does belong to Nintendo. "I can't really say to Nintendo, you don't own this at all, this is mine," she says.

Or could she?

The term "fair use" gets thrown around a lot in this DIY age, mostly by people with a tenuous, and occasionally incorrect, notion of what it means.

Fair use is a provision of the United States' Copyright Act of 1976, which states in part that "the fair use of a copyrighted work … for purposes such as criticism, comment, [or] news reporting … is not an infringement of copyright." But what constitutes "fair use"? The statute laid out four factors that needed to be considered:

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

What this means in practice is it often is difficult to tell whether a particular type of work is fair use. Generally speaking, what happens is a judge must weigh the work against those four factors and make a determination.

On one end of the spectrum are scenarios that almost certainly are fair use: A reviewer publishes a game screenshot alongside a review. This uses a tiny amount of the work for the purpose of criticism and has little or no impact on the potential market for the game itself.

On the other end are cases that decidedly are not fair use: Someone uploads the ROM file of Super Mario Bros., allowing anyone to download and play the game. There is no criticism or comment, the entirety of the work has been copied, and there would be a significant impact on the market for Super Mario Bros., which Nintendo still sells as a downloadable title for Wii U.

YouTube has an informative page on fair use that specifically calls out a review of the game Drake and the 99 Dragons by user ProJared as an example of a video that it says does not constitute an infringement of game publisher Majesco's copyright. The 17-minute review makes extensive use of clips of the game, with running commentary.

"Let's Play" videos are not so clear-cut. The main difference is they often are quite long—if a game takes 20 hours to play, the video may well be 20 hours long. Is that fair use, or copyright infringement?

"It could go either way," says Rich Stim, a Berkeley, CA attorney who specializes in intellectual property law. "It really depends on the test case that went forward."

The issue, he says, is fair use rarely applies "when you copy the whole thing." But the videos undoubtedly offer commentary and transformative purpose—which is the first factor in copyright analysis and fair use. "Are we doing something new? Are we taking the viewer of the Let's Play video somewhere they wouldn't have been if they were just playing the game? Probably, the answer is yes."

To his mind, then, the videos are fair use. "The commentary is really what the people are coming for," he says. That makes it transformative. But this is academic, because the only thing that matters is what a judge says. Stim believes that, in general, a court would rule that a Let's Play videos did not constitute fair use.

That said, this subject hasn't come before the courts, and Stim doesn't believe it will anytime soon, because neither side really wants that: Most of the people making the videos can't afford it, and the gaming industry doesn't want to push its luck. "Many game developers may not want to have a precedent on the issue, because a precedent could go against them and they would not have this ambiguity in which they can currently operate."

'They Just Get to Screw With Your Business' ——————————————-

People making Let's Play videos aren't alone in being caught in the Content ID dragnet. Jim Sterling is one of gaming's most acerbic critics, a whip-smart writer and commentator. By YouTube's standards, his videos fall squarely under fair use, using short clips of games to illustrate his criticism and commentary. He's had two videos—Games to Get Hyped For in 2015, which contains images from Kirby and the Rainbow Curse, and Game of the Year Awards 2014, with footage from Super Smash Bros—tagged by Content ID. He wasn't monetizing the videos, but if he wanted to, now he can't.

Jim Sterling. courtesy Jim Sterling

Sterling says most publishers withdraw their Content ID claim when challenged, "but historically, Nintendo's never played ball like that. You dispute the claim, and it's either ignored or they uphold the Content ID claim."

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 take as long as two months, with the outcome decided entirely by the people arguing you owe them something.

You're Expected to Basically Doxx Yourself ——————————————

At 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."

Sterling says the only instance of a major publisher issuing a takedown came in 2012, when Sega went after several YouTube videos about Shining Force III. Now, "some YouTubers just won't touch Sega games on principle," he says.

What worries Sterling is the thought that publishers and developers might file frivolous takedowns—for which there aren't any real repercussions—just to hassle people. It's not an idle threat. Last week, the developer behind the game Skate Man Intense Rescue filed a takedown notice over Sterling's video about it. The video remains down while Sterling disputes the claim.

Last year, the developer behind the games Slaughtering Grounds tried the same tactic. The creator of Garry's Incident did the same thing to popular (and equally acerbic) reviewer John "TotalBiscuit" Bain. Although nothing happened in the long run, it was a hassle that required the reviewers to document their cases and provide all of their personal info to the developers as part of the DMCA counter-notice.

"These are people clearly prone to irrational thinking," Sterling says, "and you're expected to basically doxx yourself for them."

Pay to Play, and Play to Pay —————————-

Putting aside the questions of whether Let's Play videos infringe on copyright and why YouTube essentially lets copyright holders settle that question, the more pressing question might be whether it is in a publisher's interest to even care.

In an age when Minecraft became the biggest game in the world due in large part to a vibrant, unfettered YouTube community, many game publishers are embracing that community. Many explicitly allow game footage to be used freely, even in videos that clearly do not constitute criticism or commentary.

"Trying to control this is just ridiculous," says Mike Wilson, cofounder of game publisher Devolver Digital. "It's old-world thinking about this is ours and not yours. It's a YouTube world, and fair use is becoming more and more the standard."

Devolver places no rules at all on using game footage; in any instance, the answer is, literally, "yes." Other publishers, typically giant multinationals with lawyers in every time zone, have longer, more detailed permission notices, but they too boil down to "Go right ahead."

But then there's Nintendo, which always has to be different. Earlier this year, it announced the Nintendo Creators Program. If your video or YouTube channel contains content from an approved "whitelist" of games, you can enter the program. That entitles the company to 40 percent of the ad revenue on your video or 30 percent of the revenue on your channel. Nintendo approves all videos before they go live and can alter the terms of the deal "arbitrarily," according to its terms of service.

It sounds more than a bit like a protection racket. "A lot of critics and reviewers are concerned," says Zack Scott, a maker of Let's Plays who's had videos flagged by Nintendo. "I don't know what's going to happen to people who cannot sign up to be an affiliate."

More troubling, it appears Nintendo is creating and financing a network of Nintendo enthusiast coverage. "It's basically a reviewer signing terms of employment with the company," Sterling says. "I would certainly advise other YouTubers to not play ball with that."

Nintendo, looking to return to profitability after three years in the red, could be being short-sighted here: It might earn some cash through its heavy-handed use of Content ID and the Nintendo Creators Program, but do so at at the risk of alienating reviewers who could bring it far greater rewards.

"If you've got a high-quality game and you give it to a guy like PewDiePie, you've just gotten your videogame in front of millions of people without having to pay the kind of money big publishers usually pay to get their game in front of millions of people," Sterling says. "It seems to me to be highly beneficial to let YouTube do its own thing."

One thing I found while I researched this story: Every YouTuber I spoke to already belonged to some sort of multi-channel network, an umbrella organization like Machinima or Maker that takes a cut of ad revenue in exchange for promoting the channel and dealing with legal issues. Within these networks exist two types of channels: So-called "managed" channels are exempt from Content ID, but "affiliate" channels are not.

What seems to be happening with the establishment of these networks is an attempt to tame the Wild West of YouTube. If it happens, by whom will it be tamed: Independent networks that insulate creators from frivolous copyright claims, or game publishers wrangling creators into producing sponsored content?

And in the middle of all of this, can YouTube figure out a way to better protect the little guys who don't have a network on their side?

"People can argue that YouTubers exist at the mercy of YouTube," says Sterling. "But at the same time, YouTube has cultivated this system that it itself benefits from, where people are using it to make a living... Let's at least be decent, do the right thing."