No, no one has gone to court because they don't have to, they can just go to YouTube and say 'take care of that'. And they would need an opponent who is willing to go to court instead of paying a few bucks for an easy out. The point of fair use is to be able to show what you're talking about when critiquing, reviewing, educating, etc. And you don't use more footage than needed to proof your point. Playing through parts of a game (or the entire thing) and just talking about what is happening or how your day was doesn't do that. If someone is ballsy they could go to court over an achievement guide and argue educational, that might make an interesting case, but I wouldn't put my money on a let's player.
It would certainly be an interesting fight. The first thing the lawyer would likely do is challenge the notion that a video game is a copyrighted work in the same respect as music or a movie. The idea of games being intellectual property rather than a product is a transformation over the last 10 years. Interactive media versus static media is a distinction worth making. You can drive around in a truck, showing the dash and other branded or otherwise componants talking about your day. The comparison may seem a stretch to some but that would be the first battle. The reason I make the comparison is that in the case of the truck, much like the video game, the audience will be primarily present because of the personality behind the camera or microphone. There is value being added to the original product by the creator. Whether that value is sufficient depends on the content. There is some significant value at least in the idea of challenging the licence idea of interactive media though I do tend to agree that kids chatting about how their girlfriend broke up with them while they're playing COD in the background probably deserve less attention than those who are truly producing entertaining LP content. Cult of personality, etc.
From there, the fight would move to the 4th element of Fair Use, that being the idea of the effect on the market of the content. If given a reasonable subset of data, I think it would be fairly easy to prove beyond a reasonable doubt that online video game content not only doesn't hurt sales but in fact dramatically improves sales. This is very much a mark in the favor of the creator though it will require a savvy lawyer willing to argue that the video market on the whole needs to be considered for value, not just the individual video producer who may only be getting a few hundred views per video.
So there's an attack on the side of LP based on items 2 and 4 of fair use. Those who provide editorial, news and other educational content as well as parody would of course be met in court with a slam dunk. While the basic LP kiddie is not so clear cut, it is by no means and automatic loss.
Following that, it is worth noting that all of these ContentID claims are coming from in-game music administered for copyright by publishers of soundtrack content. Some company once got sold a game soundtrack license and immediately copyrighted that content on YouTube. This attacks the idea of using more footage than needed as the background music is even further removed from the idea. Nobody clicks on a Skyrim video for example because of what background song might be playing at the time. For the most part, game companies are ok with and like this kind of content. They're giving the industry their blessing and yet the content is being monetized by these smaller music publishers to the detriment of all.[DOUBLEPOST=1386801092,1386800965][/DOUBLEPOST]
Come back and read this post in a few months
"told ya so"
You are so unbelievably misled that it's funny. First of all, gamers aren't going anywhere. Over the enxt month the bulk of these false music related claims will be sorted and it will merely be a minor inconvenience. But even if you were right that people wanted so badly to move on. You could quite literally take the amount of money necessary to build the infrastructure needed to turn Dailymotion or Vimeo into a server farm capable of handling the YouTube viewer load and it would still take you more than a year to get it all up and running.
