Numinous Games' and Youtube.., another example of getting victimized by 'fair use'?

Numinous Games, the studio that created 'That dragon cancer' recently relayed an article on their website describing their experiences with how their product was displayed in the wild. A few things stand out in their article; a) they make a case that third parties hindered the sales numbers of their game and b) they question the validity of a 1:1 broadcast of their product without the broadcaster doing anything to add to the content. Moreover, Numinous Games has yet to see a single dollar in revenue over their game since they released it about 2 months ago, in contrast to youtubers and twitchers who already cashed in on a product that's not theirs hiding behind law-protection in a manner that the law wasn't intended for.

Indeed, the law is in this case protecting the wrong parties.

A lot of things can be said about 'That dragon cancer' and it's usefulness as a let's play vehicle and most of them have been touched upon in defense of the youtubers and twitchers, chief being the assertion that the content is too heavy and personal to narrate during a let's play. While that may be true (I happen to think that a well spoken, content associated let's player can add an extra dimension to 'That dragon cancer''s subject matter in contrast.) it didn't stop those youtubers and twitchers to earn second hand revenue over the backs of the people that make out Numinous Games.

Numinous Games further points out that their game wasn't displayed in well enough transformative manner. Transformative here pertains a youtuber's or twitcher's ability to add a dimension to the finished product by their presence and personality, thereby making the viewing-experience of said product a new and fresh experience. Great examples in this topic are youtube personalities 'Dodger' (youtube channel Presshearttocontinue), who recently made a series out of 'Panzermadels' and gave it great comedic value with her voice-acting, or Jon Baily, who's known for his voice-acting as the Councilman in the Firaxis editions of 'Xcom', who creates parodies on games with his 'Honest Game-trailers' series, also on Youtube. No studio out there wouldn't want their product to be shown like that and it speaks even more for both of these personalities that they respectfully acknowledged 'That dragon cancer' and left it at that.

In that light, a youtuber who plays through the Witcher 3 front to back and only stopping to comment on the wonderful sunsets in that game isn't really being transformative, because everybody who played through the Witcher 3 has at one point gawked at the wonderful sunsets. Regardless of the subject matter in 'That dragon cancer', a complete playthrough in silence with an occasional comment on how awful the world is isn't transformative as well. It's merely leeching a revenue off of the people that actually deserve said revenue.

When one also take into account the number of youtubers and twitchers leeching off of a product then it isn't that hard to realise that a mountain of revenue is being generated of which the original owners of the product don't see a single dime. I reject the 'free advertizing' argument because one can honestly place questionmarks by advertizing one has no control over. No company with a marketeer worth their salt would entrust their product to Joe Blow in Nowhereville, Dead Endia and continue to give Joe carte-blanche to run their product into the ground in any way Joe sees fit. That's simply insanity.

As the youtubing and twitching business continues to grow, I strongly believe that regulating the business becomes a necessity. A covenant that binds youtubers and twitchers to create succinctly transformative works should be a chief point. Basic broadcasts of plain runthroughs of any game should be phased out as soon as possible as that would, ideally, cull the herd of those that mainly youtube or twitch to avoid holding down a job and acknowledge as such those youtubers and twitchers that actually approach what they do with a measure of professionalism.

Together with the other ripples in the pond that wash at the feet of youtubers and twitchers lately, I'm interested in where the future will take them and the studios they rely on. As a vocal advocate of youtube and twitch regulation, I'm cautiously optimistic. 

http://www.thatdragoncancer.com/thatdragoncancer/