Experienced Points: Please Understand, Nintendo is the Bad Guy

By Shamus Posted Monday Sep 21, 2015

Filed under: Column 235 comments

Today’s column is a methodical attempt to destroy every possible excuse that Nintendo might offer for their obnoxious, destructive, unfair, and unlawfulNot ‘unlawful’ in the sense of being “illegal”, but unlawful in the sense of, “If this went to civil court, Nintendo wouldn’t have a leg to stand on.” Maybe there’s a more appropriate word to use here, but IANAL so I don’t know what it could be. persecution of YouTubers who upload videos of themselves playing Nintendo titles.

Naturally being a member of a Let’s Play team that gives away content for free I’m likely biased towards the notion that POSTING GAMEPLAY FOOTAGE ISN’T COPYRIGHT INFRINGEMENT. YOU ASS.

This position of “Only we are allowed to post gameplay of our own games” is something I would expect from (say) EA, and I would expect it would be used in pursuit of some identifiable goal. For example: Silencing negative reviews or internal leaks. But to have Nintendo doing this, and for them to do it with no clear benefit or strategy is truly baffling.

My only guess is that Nintendo is looking at the world through a warped cultural lens (perhaps copyrights work differently in Japan?) and then that image is further distorted through a generational lens where the Old Guard just doesn’t “get” this whole internet business.

I don’t know. It’s a sad and pointless form of destruction.

EDIT: This quote from the forums by Steve C is very interesting:

“Nintendo has the exclusive right to perform the games publicly or to make derivative works based on the games.”

That is what is called “a straight up bold faced lie.” Well more accurately it is technically true while being so false for practical purposes it is misleading because people believe it. Anyone has the right to perform the games publicly or make derivative works based on Nintendo games as long as they are fair use/ or fair dealing uses. Which for video games is trivially easy because nobody sane thinks that watching something like Spoiler Warning is the same as playing a video game. A Let’s Play is always going to be some form of: “education, parody or satire, research and private study, criticism, review or news reporting.”

In Canada, it is explicitly stated in 29.21 (1) It is not an infringement of copyright for an individual to use an existing work and disseminate fan created works. Also Canada (unlike the USA and I have no idea about other countries) does not recognize work for hire created in Canada as belonging to the employer. It always belongs to the individual authors. So something like Metal Gear: Solid which was created in Canada, definitely has the copyrights owned by Nintendo and Konami. However they cannot and will not ever own the authorship. That authorship and the non-transferable author’s rights and moral rights will forever be owned by Canadians, (one of which is my old roommate since he was one of the programmers.) And there’s a hell of a lot of major Nintendo games made in Canada.

Since Nintendo is a Japanese company and they should know their own laws invalidate their claims; In Japan, “Works can be performed or exhibited freely if the performer is not remunerated, and the audience is not charged an admission fee.” The source must be cited (Nintendo, or whatever). Which is so broad in Japan that they can (and do) have derivative fan works coming out the wazoo. All those in-house, in-country Nintendo Japan created games- Japanese law!

Nintendo does NOT have “exclusive right to perform the games publicly or to make derivative works based on the games” in Japan by anyone outside of courtroom can understand and parse them. Inside a courtroom they don’t mean the same thing as they mean on surface value.

When people say “Oh the laws are shaky” it’s because corporations like Nintendo are purposely making them shaky by making broad claims of rights they do not have. The laws are quite straight forward in most cases.

Again, I have no legal training so I can’t comment on it directly, but it makes sense in terms of what we know about how other mediums work.



[1] Not ‘unlawful’ in the sense of being “illegal”, but unlawful in the sense of, “If this went to civil court, Nintendo wouldn’t have a leg to stand on.” Maybe there’s a more appropriate word to use here, but IANAL so I don’t know what it could be.

From The Archives:

235 thoughts on “Experienced Points: Please Understand, Nintendo is the Bad Guy

  1. Daemian Lucifer says:

    We had this discussion on the forums earlier,and I think this comment from Steve C about the whole legality thing is relevant,so here it is:

    People keep saying “the laws are still shaky” etc and it’s not true. It’s just something that it is said because groups like Nintendo keep making more and more claims of what their rights are when it’s based on nothing more than a 5yr old Mumbles charging a nickle to use the slide.

    Nintendo has the exclusive right to perform the games publicly or to make derivative works based on the games.

    That is what is called “a straight up bold faced lie.” Well more accurately it is technically true while being so false for practical purposes it is misleading because people believe it. Anyone has the right to perform the games publicly or make derivative works based on Nintendo games as long as they are fair use/ or fair dealing uses. Which for video games is trivially easy because nobody sane things that watching something like Spoiler Warning is the same as playing a video game. A Let’s Play is always going to be some form of: “education, parody or satire, research and private study, criticism, review or news reporting.”

    In Canada, it is explicitly stated in 29.21 (1) It is not an infringement of copyright for an individual to use an existing work and disseminate fan created works. Also Canada (unlike the USA and I have no idea about other countries) does not recognize work for hire created in Canada as belonging to the employer. It always belongs to the individual authors. So something like Metal Gear: Solid which was created in Canada, definitely has the copyrights owned by Nintendo and Konami. However they cannot and will not ever own the authorship. That authorship and the non-transferable author’s rights and moral rights will forever be owned by Canadians, (one of which is my old roommate since he was one of the programmers.) And there’s a hell of a lot of major Nintendo games made in Canada.

    Since Nintendo is a Japanese company and they should know their own laws invalidate their claims; In Japan, “Works can be performed or exhibited freely if the performer is not remunerated, and the audience is not charged an admission fee.” The source must be cited (Nintendo, or whatever). Which is so broad in Japan that they can (and do) have derivative fan works coming out the wazoo. All those in-house, in-country Nintendo Japan created games- Japanese law!

    Nintendo does NOT have “exclusive right to perform the games publicly or to make derivative works based on the games” in Japan by anyone outside of courtroom can understand and parse them. Inside a courtroom they don’t mean the same thing as they mean on surface value.

    When people say “Oh the laws are shaky” it’s because corporations like Nintendo are purposely making them shaky by making broad claims of rights they do not have. The laws are quite straight forward in most cases.

    1. Thomas says:

      Steve C says ” A Let's Play is always going to be some form of: “education, parody or satire, research and private study, criticism, review or news reporting.””

      But a speedrun isn’t any of those things. I doubt a judge is going to buy “educating how to play the game”, it’s not parody or satire, research is worse than education, it’s not criticism or review or news reporting.

      In music, if you perform a song that someone else wrote, and you receive money for that song (even if you didn’t charge the audience directly, ie through youtube adverts), you have to pay the original makers of the song money. Traditionally publishers even pay if a song _samples_ another song now.

      So whilst I think what Ninendo is doing is wrong and unjustified, I still thing saying they “don’t have a leg to stand-on” is just wishful thinking rather than an analysis of the actual situation. The laws are bad and not designed for this medium or this way of presenting the medium and Nintendo could abuse that to make a case for themselves.

      1. Thomas says:

        Incidentally, song covers on youtube have the same problem Let’s Players and speedruns have.

        In this article on “So Does My Cover Song Violate Copyright Law?” the authors say

        “Yes it does. Well, not really, but sort of … maybe? Cover songs on YouTube are a heated topic among almost every aspect of the music and online video industry. While Fullscreen is being knocked for making money on cover songs the NMPA claims they have no rights to, millions of cover songs still are up and running ads on YouTube as I write this.

        YouTube writes in their FAQ section: “Recording a cover version of your favorite song does not necessarily give you the rights to upload that recording to YouTube. You may need permission from the owner of the underlying music in order to upload the recording legally.”

        Back in 2012, YouTube made deals with various U.S. music publishers that allowed creators to keep up their covers while publishers took upwards of 50 percent of the revenue generated from them. Unfortunately, we're still not sure which publishers officially signed on. This means that even though YouTube has made it legal to upload a great deal of cover songs, we have no clue what those cover songs actually are.”

        So even random nobodies playing covers of songs are actually paying royalties of those songs to the music publishers.

        1. Steve C says:

          Random nobodies playing covers of songs are definitely paying royalties. However in many cases, neither the music publisher nor Youtube may not have a right under copyright to collect those royalties.

          They may have a legal and binding right due to deals signed and contracts. It’s just not copyright. The problem is how Youtube has been taking down things. When they make a DMCA claim they are explicitly saying the uploader does not have the right to do what they did *under copyright.* THAT is wrong.

          Youtube has the right to take stuff down because it costs money to host them and they are a private company and not a public space. Just like a business can kick someone out of because they smell real bad, or because they are closing for lunch. For example a bigshot walks into a restaurant and pays the owner $1 million for a private meal. The owner proceeds to cancel all reservations without telling anyone and throw everyone currently eating out the door in mid meal. They haven’t paid anything for the meal, therefore the restaurant does not owe them anything. The owner can’t force them to pay, but he doesn’t care because this bigshot’s business is far more valuable than anything the regular patrons were giving him.

          A business has a legal right to stop doing business with you. They have a right to ask you to leave and if you don’t, call the cops for trespassing. What they don’t have the right to do is invite you in, then tell the cops you are trespassing. You weren’t trespassing until they tell you to leave and you refuse. What Youtube is doing is wrong is because they are skipping an important step and lying about what’s going on behind the scenes. It is like having everyone in the store dragged out by the cops for trespassing.

          Why is Youtube doing this? Because by using the DMCA they are not the bad guys. Some third party is the bad guy. Instead of sending a DMCA takedown notice, Youtube should send an email saying, “We have taken down your video because Youtube has contracts with other entities that we make more money from. We like their business more than your business so we are doing this to keep our better clients happy.”

          Even though that’s the actual truth of the situation and Youtube has a legal right to do that, instead they blame copyright so they don’t look like jerks.

          1. Steve C says:

            I’m reminded of when I went into Staples and saw a sign that said, “We do not allow the return of software due to copyright law.” That pissed me off greatly. It was bullshit. Copyright law had nothing to do with anything. However seeing signs like that put into the collective consciousness that copyright has something to do with it. And that’s what keeps happening – the collective consciousness keeps changing because people keep seeing the same things over and over again. The outcome is the same either way but the reasoning is not correct.

            Staples did not have to allow the returns because they can just say, “All sales are final,” with pretty much anything. Lots of businesses do. Big retailers don’t because it is bad business and will cost them more in the long run. If Staples was pressed with an actual problem with the item (or software) to the point it was not fit for purpose then they would have to take it back.

            A business probably would dig their heals in and say no, because the people you would be talking to would be used to saying no. It’s just social momentum. They would not understand the reasons why they were saying no. The individual people would make up shit to justify their actions because they did not realize there was no justification to deny a return in the first place. It was always just their whim. However when pressed in a court a business would still have to take back merchandise unfit for purpose regardless of their return policies.

            Staples had the legal right to refuse a return. They had the legal right to put a sign. They had a legal right to lie or be mistaken about laws that gave them those rights. Everything they did was completely legal. Most importantly they weren’t tied by any laws. It was completely their decision and a dick move.

            “Because there’s nothing in it for us.” Is surprisingly a really good legal and sound reason not do what a customer wants.

          2. guy says:

            Youtube does not make DMCA claims. Copyright holders send Youtube DMCA takedown requests and Youtube is outright legally obligated to take down the video and inform the uploader (section c and section g). There is also precedent that they need to do something about people who keep uploading copyrighted content, though I have heard that they’ve gone beyond what they’re actually required to do for that.

            1. Daemian Lucifer says:

              I dont see anywhere in that thing that a bot is considered a legitimate “Designated agent”.So they are breaking the law already.

              Also,there is the whole perjury thing,which never comes to play,and it should.

              And since when is “John Doe” a valid digital signature?

              1. Steve C says:

                The perjury thing is for misrepresenting that you are an agent of ___ company. For example it is not perjury for Suetendo to knowingly falsely claim copyright on a video you made that has zero copyright content in it by any company. Where it is just you talking and displaying text on a white background. Not perjury to lie by that company’s lawyers either. You could make a similar false and baseless claim against me. Again not perjury.

                The perjury comes into play I claim to be Suetendo, or representing Suetendo and make a DMCA claim. That’s the illegal perjury part- who you claim you are acting on behalf of.

                1. Decius says:

                  It literally is Perjury to make a outright false DMCA claim. The DMCA claim is a signed statement that you own the copyright to the work and that it is not authorized.

                  There are additional penalties under DMCA for falsifying a DMCA letter.

                  1. guy says:

                    The penalty of perjury only applies to the statement that the author of the notice is an authorized representative of the copyright holder. Knowingly filing a false claim only carries civil penalties. That’s the one part of the safe harbor provisions that really could do with a rewrite.

                2. “it is not perjury for Suetendo to knowingly falsely claim copyright on a video you made”

                  If the uploader is the original creator then the uploader could sue the claimant for fraud (which would fall under federal law rather than civil law, i.e. fraud is a crime).

                  Technically it should be called Copyright Theft, but companies have missused the word theft in combination with copyright so daying that is just confusing things.
                  I guess Copyright Fraud could be used, but Fraud is Fraud so no need to mention copyright.

                  Why Fraud? Because someone else than the creator is claiming to have the copyright of the content, which is different from somebody else using someones work without their permission.

                  It would be nice to see a creator and the EFF go after a company for (copyright) Fraud.

                  Also, what happens to the creator of content on Youtube if a DMCA claim is made then countered and un-claimed again. If there was ads on that video, does the creator get compensated? Did the claimant take that money? If they did then that is theft (actual theft as defined per criminal law).
                  Heck a creator could demand compensation even if there was no ads on a video, just the lost subscriptions/views/exposure is enough to demand compensation from a claimant.

                  1. guy says:

                    The DMCA does allow for lawsuits:

                    (f)Misrepresentations.””Any person who knowingly materially misrepresents under this section””
                    (1) that material or activity is infringing, or
                    (2) that material or activity was removed or disabled by mistake or misidentification,
                    shall be liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

                    That said, it’s pretty difficult to beat a multinational corporation in court. Even if they can’t win on merits, they can drag it out long enough the other side runs out of money before winning.

            2. Steve C says:

              @guy above- Correct. Which is why it is so easily muddled.

              A company (let’s call them Suetendo) has the legal right to make DMCA claims.
              Youtube has the legal obligation to follow DMCA claims (USA only.)
              Youtube has the legal right to take down any content for the reason of – “just because.”
              Youtube has the legal obligation to follow contracts with Suetendo.

              So taken together, Suetendo can legally order Youtube to take something down. The DMCA claim is still not legitimate. It just appears to be legitimate because all actors are following their legal rights and obligations and taking legitimate actions they have a legal ability to take.

              It’s easier to see how it’s illegitimate by one change and the whole thing falls apart– make false DMCA claims be illegal. This is in the US court system now by the dancing baby case. Once that goes through and the EFF wins that case, Youtube will continue taking down whatever they want for whatever reason they want. And those reasons will be coming from third parties just as they do now. They just won’t be DMCA claims to obfuscate that fact.

              It’s easier to see outside of the USA. There are very similar laws but other countries have a notice/notice system instead of a notice/takedown system. Right now outside of the USA with no DMCA to compel compliance, Youtube STILL takes everything down. Why? Because they can and it keeps the companies Youtube gets actual money from happy. I repeat- there is no DMCA outside of the USA and stuff is still taken down by Youtube. Also note that that Google is an *Irish* company.

              If there were competitors to Youtube that did not want to play ball with Suetendo then the videos would remain up. They would scream about copyright but it would not be true.

            3. Peter H. Coffin says:

              There is, however, the wrinkle of the counterclaim. Which is, in essence, you saying “No, there’s no copyright violation happening here, and here’s where the supposed copyright owner can send the summons if they’re not bullshitting and think they actually have a legal case.” After you file that, YouTube HAS TO PUT IT BACK in 14 days or less. YouTube doesn’t even get to weigh in on whether it’s a copyright violation or not — they MUST put it back and leave it up to you and the party that filed the original takedown notice, whom has ALREADY SWORN UNDER PENALTY OF PERJURY that they will file suit. In YOUR jurisdiction, not theirs. If they don’t file, on a timely basis, it’s over and done.

              1. *nod* and at this point the video magically remains up afterwards (because of-course the claimant don’t actually want to go to court over it since they know it is false, at this point humans are involved too rather than automated systems).

                The system is really broken. The video should not be taken down at all:
                #1. Ideally the uploader should have 14 days to respond to a claim and if they don’t, THEN it should be taken down.
                #2. And if they do respond but the claimaint still decide to uphold the claim then the video is taken down (for 14 days like currently).
                #3. At this point the uploader and claimaint can decide to duke it out in civil court like currently.

                The DMCA just needs Step #1 added to it and most of this take down mess will be taken care of. It would also allow the uploader on their own to take down or re-edit the video and put it back up again (whereupon the claimant can re-evaluate if it still violates their copyright).

                Then again common sense never was the strong suit of the lawyers and politicians that wrote and passed the DMCA.

                1. guy says:

                  Eh, that would let a bootleg copy of a movie stay up for the entirety of the critical first two weeks in theaters. I’d rather add firmer criminal penalties for filing false claims.

                  1. Steve C says:

                    There are costs and tradeoffs everywhere for laws, compliance and enforcement. If the result is bootleg copies of a movie out for two weeks, I say so be it. It’s a better choice of negative outcome than how it abused currently to squelch stuff someone just doesn’t like. Or automated systems with too much power. As Wikipedia says, “It is commonly used for other purposes: to create leverage in a competitive marketplace, to protect rights not given by copyright (or perhaps any other law), and to stifle criticism, commentary and fair use.”

                    Again I want to point out the world wide nature of copyright. What Roger Hà¥gensen described is a notice/notice system. It is the system in place in Canada. For a notice/takedown system to have a hope in hell of stopping your fear of a bootleg copy of a movie out in the first two weeks, then *every* country would have to have notice/takedown laws and *every* country would have to enforce them. That is not the case and it will never be the case. In other words, that bootleg movie has and will continue to come out regardless of the law.

                    So the USA has all of the negative abuses of the law and none of the benefits.

                    1. “a notice/notice system” “It is the system in place in Canada”
                      Go Canada.

                  2. Daemian Lucifer says:

                    that would let a bootleg copy of a movie stay up for the entirety of the critical first two weeks in theaters

                    So what?Its how it works in other cases where fraud is involved,so why not piracy?If you give counterfeit bills to someone,they dont get the damages until after you are convicted.Id rather have the theaters get their damages from the pirate/insurance after the case has settled,then for false dmca to wring people out of their revenue.

      2. Daemian Lucifer says:

        It most definitely is research and education.It shows off all the obscure glitches and time saving bugs.

        Not to mention that “the weird way to play a game” can also be considered a “satirical way to play the game”.I mean you are deliberately pointing out bugs and glitches in a humorous ways in order to shame programmers into improvement.Its not that much of a stretch.

        1. Keeshhound says:

          It also qualifies as a form of commentary or critique (In the sense that speedruns are the culmination of an extremely intensive analysis and evaluation of the game in question.)

          1. Thomas says:

            Come on guys, you’re still just arguing from what you want to be true than trying to make any reasonable evaluation of what is true.

            Education can be fair use if
            “the copying of works in any medium as long as the use is solely to illustrate a point, it is not done for commercial purposes, it is accompanied by a sufficient acknowledgement, ”
            All three points aren’t true of speedruns. And that’s ignoring the fact that a judge would laugh you out of court for trying to argue that it’s “educating you how to play the game” or “researching how to play the game” or the use of bugs is “satire”. That’s not how the law works, you can’t try and use word trickery to bend something to how you want it to be. Otherwise someone could sell a copy of Harry Potter as long as they’d inserted five paragraphs explaining why the story is important and call it “educational”

            It’s complete nonsense and you know that as well as me.

            1. Benjamin Hilton says:

              It’s more educational than it is copying a game and selling it.

              1. Thomas says:

                But less educational than a product created for educational purposes that would satisfy a judge as to being fair use. What I’m trying to illustrate is you can’t invent a wishy-washy reason for it being educational, it actually has to be something that most people would immediately recognise as an educational product. And it specifically has to satisfy the above conditions, which speedruns don’t.

                1. Benjamin Hilton says:

                  you also can’t invent a wishy washy reason for it being copyright infringement.

                  1. Mike S. says:

                    Fair use is an affirmative defense to copyright infringement. If you’re at the point of needing to assert fair use, then infringement is the default position. Conversely, if the use is noninfringing to begin with, then fair use defenses like an educational purpose aren’t relevant.

                    1. krellen says:

                      Fair use is an affirmative defense to copyright infringement.

                      For now. Court case pending.

                    2. Mike S. says:

                      I’m personally all in favor of changing the balance of power of the takedown process and strengthening fair use. But if I were a betting man, I wouldn’t put a lot of money on that result on a national level coming out of a California district court. (First the appellate court has to affirm; then the Supremes would have to see eye to eye with the 9th Circuit. :-) )

                      But again, I’d be pleased to be wrong.

                    3. krellen says:

                      The Ninth Circuit is the appellate court. The only place left for this is the SCOTUS, and they are almost certain to let it stand unless some other Circuit court gets a case to rule otherwise.

                    4. guy says:

                      That case isn’t about whether it’s an affirmative defense; it’s about whether companies are required to consider possible affirmative defenses when making DMCA claims. For Fair Use to not be an affirmative defense, it would have to apply as a defense for something that doesn’t include copyrighted material. Which wouldn’t make sense because Fair Use is specifically about when you can use copyrighted material.

            2. Wide And Nerdy says:

              Interesting. So would Freeman’s Mind get a pass on this (assuming Valve ever cared to take it down.) He both performs a parody by supplying the silent protagonist an inner monologue, and transforms the work by modding.

              1. Felblood says:

                Feeman’s Mind should be pretty safely in the satire zone.

              2. Thomas says:

                Yeah, I think Freeman’s Mind is easily fair use. A lot of videos that get taken down are easily fair use too, like Angry Joe’s reviews or Chris’ videos.

                Most Let’s Plays could at least make an argument for fair use, but it would be harder and depend on the Let’s Play. There are normally conditions about using the minimum necessary required for your purposes, so if you’re reviewing a film you normally can’t show the whole film in your review. If you’re doing a lecture series on books, I don’t think it’s generally acceptable to reproduce the whole book in the notes, or even most of the book. Thats where Let’s Plays get trickier, because something like Errant Signal is a more reasonable level of usage for the purpose of a criticism. Also the fact that a lot of Let’s Plays aren’t _mainly_ about criticism or parody also make them vulnerable.

                Speedruns are another level more contentious again

                1. 4th Dimension says:

                  I’m not so certain about Freeman’s Mind being a satire. That clause was probably inserted so that works could be criticized through making fun of them. Ross isn’t satirizing the Half Life: The Game. He is using the Game to create funny content and situations, which is different from laughing at the work of Valve’s programmers/artists.

                  But all reviewers and critics and pundits’s work should be protected by the law since they are using the Game footage to make a point about the quality of the game. Most of those videos in fact would work WITHOUT the accompanying video footage.

                2. guy says:

                  Freeman’s Mind probably would not constitute Fair Use. It’s clearly parody/satire, but it also contains a video of a full play-through of the entire game.
                  17 U.S. Code § 107 – Limitations on exclusive rights: Fair use

                  Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include””
                  (1) the purpose and character of the use, including whether such use is of a 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; and
                  (4) the effect of the use upon the potential market for or value of the copyrighted work.
                  The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

                  The important part here is 3; a full playthrough video is clearly a large amount of content in relation to the amount in the game and contains a substantial portion of the experience. In much the same way that you couldn’t get away with showing an entire movie even as part of a review, an entire playthrough as part of a parody is highly unlikely to pass.

                  1. Daemian Lucifer says:

                    Games are not movies.Watching someone play a game instead of playing it yourself is like listening to someone describe a movie word for word without actually watching it yourself.And this is especially true if a game has bunch of sidequests and optional paths that the lets play doesnt cover.

                    1. guy says:

                      And watching the first 120 minutes of a 128-minute movie is not the same as watching an entire movie. An LP video still contains an important part of the experience even though it isn’t the whole experience. If you think the video is not an important part of the experience, I invite you to play a game with your monitor and speakers switched off.

                    2. venatus says:

                      which would be a great argument to make in court. let’s plays should be covered under fair use or similar laws, but to my knowledge they’ve never gone to court and whether or not a judge would agree they are is up in the air.

                    3. Daemian Lucifer says:

                      “Important” is not the same as “defining”.Music is an important part of a movie,but without moving pictures it would not be a movie.Visuals are an important part of a video game,but without (meaningful) interaction,it is not a video game.

                    4. guy says:

                      “Defining” is not the same as “substantial”, which is the actual word used in the law code I quoted. I would argue that literally everything in a game except for the control inputs is a substantial portion of the experience despite not being the complete experience.

                    5. 4th Dimension says:

                      @Demian A game is not only the game play. A lot of game consist of artwork and sound and story. Depending on a game these three are not only substantial part of the game but most of the game.

                    6. mewse says:

                      Except, of course, that you actually *are* watching it yourself, not listening to someone describe it word-for-word.

                      I don’t think anybody — the Copyright-holders included, would have any complaints at all if what was happening was someone describing it word-for-word.

                    7. Abnaxis says:

                      See, this is why we need a better agreed-upon definition for the word “game”…

                    8. Abnaxis says:

                      @guy:I would consider the Prince song a “substantial” portion of that YouTube baby video the way you are using it here.

                      Just saying.

                    9. Daemian Lucifer says:

                      Ok,is a 5 minute clip of a 100 minute movie a substantial portion?If not,then is a 5% playthrough of an open world game (lets say oblivion speedrun)a substantial portion?How about 60 random half minute clips of a 120 minute movie?Or how about 8 random levels(not complete even) of a 32 level game?And thats just focusing on speedruns,because they are the focus of this article.

                      @4th Dimension
                      And a movie is not only moving pictures.A lot of a movie consists of sets and special effects and sound and acting and story.Depending on a movie these are not only substantial parts of the movie,but most of the movie.Does that mean telling the complete story of sixth sense is the same as watching it muted?Or watching just Bruce Willis acting all of his scenes?

                      You are watching it,but you arent playing it.Equating the two is like saying that watching fantasia muted is substantial part of the experience.

                    10. Daemian Lucifer says:

                      Quick!Delete that first comment before dudecon sees it!

                    11. guy says:


                      Depends; a 400-word quote from a book was once ruled a substantial portion. The courts have openly and explicitly ruled that there is no generally applicable numerical guideline for how much of a work is too much and it must be assessed on a case-by-case basis. A five-minute clip from a 100-minute movie would generally pass, but not if it’s the culminating action scene of an action movie.

                      But frankly I think speedruns just outright are not fair use and no court would accept them as parody, satire, or criticism.


                      The law is referring to how large or substantial a portion of the parodied work it is, not how large or substantial a portion of the parody it is.

                    12. Daemian Lucifer says:

                      Which is why I would love for one of these to actually go to court and settle the whole thing once and for all.Because what you or I think is the case doesnt matter at all.

                    13. 4th Dimension says:

                      Abnaxis: “See, this is why we need a better agreed-upon definition for the word “game”…”
                      NOOOOO. We just signed a ceasefire on this whole Game Definition War. You don’t know what forces you are messing with.

                  2. Abnaxis says:

                    @guy: The section you quoted pertains to all fair use, not just parody.

                    I brought up the baby video deliberately, because it is a case where the nearly the entire original work was reproduced, but it still wasn’t considered “substantial.” If you had the itch to listen to that Prince song, you would not go Googling around YouTube for the baby video–it is not remotely a substitute for the Real Deal.

                    Applying the same logic to games, if I am in the mood to play LoL, going onto YouTube and watching matches is not a substitute for the Real Deal. You can still make a legal argument, based on precedent, that LP’s fall squarely in Fair Use territory.

                    Of course, a factor complicating matters is that how substantial a portion any particular video is depends on the work itself–a Let’s Play of The Walking Dead might very well be considered substantial because a much larger portion of that game is video. Again, this is why I think we need to define “game” better.

                    1. guy says:

                      Er, the original song is 3:46 in its shortest release and the dancing baby video is 29 seconds in its entirety and contains no vocals.

                      There’s already precedent that it depends on the original work. I would actually be rather inclined to agree with your two game examples, but I’d add a caveat: I don’t think increasing the amount of gameplay in The Walking Dead would make the video permissible. Because The Walking Dead is about the story and the video, while LoL isn’t, and more puzzle sections wouldn’t make The Walking Dead not be about the story.

                    2. 4th Dimension says:

                      It’s contextual. In the dancing baby video the point of the video was not the song so much as DANCING BABY YOU GUYS, so the song is pretty much incidental. And as noted it’s a very short sample.

                      With games ans long running LPs the point is not only funny guy doing funny things but doing them in game X specifically.

                    3. Abnaxis says:

                      @4th: That goes against the point originally being made, which is that it doesn’t matter that the point of the video is DANCING BABY YOU GUYS, it matters whether the clip of the song in the dancing baby video is considered “substantial” in relation to the original song.

                      What matters, is whether

                    4. Daemian Lucifer says:

                      I agree.Whether definitely matters.

                  3. Felblood says:

                    To argue that watching Freeman’s mind represents a “substantial” portion of the experience of playing Half-Life is frankly ludicrous.

                    I can image some octogenarian judge falling for an argument like that, but nobody who uses this website should be that out of touch with what a videogame actually is.

                    Even our hypothetical, fogey judge is still required to consider point #4, before rendering his judgement. Freeman’s Mind will not hurt the commercial viability of Half-Life, so unless it is causing some other form of harm, it’s use should be considered “fair.”

                    1. guy says:

                      I strongly disagree with your assertion that videogames inherently do not include story, sound design, or graphics as a substantial portion of the experience.

                    2. Daemian Lucifer says:

                      If story,sound design and graphics are all to be considered substantial,then how is omitting two of those not a substantial omission?

                    3. 4th Dimension says:

                      Because the trigger for the copyright infringement is somebody using substantial part of a work (ex. 30%) not omitting less than a substantial part (ex. using 70%+) of a work.

            3. 4th Dimension says:

              I will have to side with Thomas on this one. Yes we all would want for LPs to be legal because we feel like they should be legal, but on the other hand I “feel” piracy also should be legal but my feelings don’t enter into it.

              LPs are based on copyrighted work of somebody else in order to entertain large masses and in the case of big Youtubers to earn cash from Youtube for views on that video. And if an LPr is EARNING something from a video the copyright holder should get their cut.*

              As for “watching a video of a game is not the same thing as playing it” that matters not at all. The entire game is copyrighted, from visuals, sounds, story to game play and an LP is infringing 3 out of 4 of those. And even if it’s a no story pure game play game it’s still infringing on visuals and possibly sound. Basically with no video or sound from the game play most of the people wouldn’t ahve watched the pure commentary.
              Let’s make a pointless comparison to movies. A movie is combination of visuals and sounds, but I’m quite certain it’s still illegal to dub yourself over the muted video and post that on Youtube. Why do you think rifftrax are offered only as audio files with the commentary. Because it wouild have been ilegal to offer movie + commentary, and while no one can claim watching a rifftrax of a movie is the same as watching a pure movie (mainly because they talk over most of the dialogue) it’s still infringing on the copyright because it’s a work that would have been 100% impossible without the movie in the background.

              I do want to make a final statement that there does need to be a difference between an actual review and an LP. A review should and IS 100% legal.

              * If they are sane that cut needs to be low enough so it doesn’t suck up all of a profit a Youtuber might get from it since they are advertising the work . . . most of the time.

              1. Steve C says:

                I do want to make a final statement that there does need to be a difference between an actual review and an LP. A review should and IS 100% legal.

                Your claims are just not correct. It matters too much where you are. The law in the relevant jurisdiction is super important. It is legal to do a fan created work in Japan and Canada. Just straight up clear cut. I’m fairly sure that’s true in the EU too since Canada imported its current laws rather recently to bring Canada more in line with EU. It’s less clear cut in the USA.

                Even assuming it’s not the USA, that’s a huge portion of the world where it is legal.

                1. 4th Dimension says:

                  I know the law varies from country to country. I’m currently arguing from the point of my limited understanding about US copyright law, which unfortunately given how much it concerns companies and people in US, IS defacto the law on the net. I don’t like it AT ALL but such is a sad reality.

                  1. Steve C says:

                    Nintendo isn’t claiming exclusive rights just in the USA though. They are claiming and acting on it everywhere worldwide. That’s wrong. The only reason why they are getting away with it because it’s just vs 1 company- Youtube/Google. If there were competiors to Youtube that not want to play ball with Nintendo then Nintendo could not do what they are doing.

                    1. 4th Dimension says:

                      What would be the alternative? Gating the access to the video based on where the request is coming from?

                    2. Steve C says:

                      Gating access by request is what happens now. It’s a lame duck solution but it is what happens. An alternative would be rethink the harm done and try and leverage it into an opportunity. If that’s not possible, to just absorb it and consider it a cost of doing business.

                      For example in a hotel there are often locks on the remote controls that bolt them to the desk. Those locks are surprising expensive and come with a host of issues like the time to mount them and the extra time and effort to clean them.

                      I managed a hotel and know from experience those locks are a waste of time and money. The cost of replacing a remote was negligible compared to the cost of trying to prevent theft. I just accepted that some remotes were going to get stolen and replaced them as needed. I would buy TV remotes in bulk and the cost of a single lock was more than the cost of a year’s worth of stolen remotes.

                      I could get really upset that I was being stolen from and spend x20 the money to *attempt* to stop it. While I might be successful it would definitely result in an inferior experience for my honest paying guests. To stop the illegal harm done to me I would be cutting off my own nose to spite my face.

                      This is what copyright owners do. They cut off their nose to spite their face. It is simply a vain effort to stop something that is too difficult and costly to stop. In *attempting* to do it they missed out on creating Youtube themselves, allowed Apple to dominate music, missed out on making Netflix and allowed it become a major competitor, and gave rise to both GoG and Steam.

                      Nintendo screwed over Sony in a deal to manufacture Nintendo’s next console. That directly resulted in the Playstation and a new competitor entering the market. Nintendo tried to control their 3rd party developers with proprietary chips. They required developers to sign exclusive contracts. That backfired as they went off to Sony with IPs like Final Fantasy. Going super controlling on copyright just doesn’t work. It bites companies in the ass every time. And this has been true for centuries even before the days of the printing press.

                      The alternative is not to be penny wise and pound foolish.

              2. Abnaxis says:

                As for “watching a video of a game is not the same thing as playing it” that matters not at all.

                That’s not true. From guy’s quote on what precludes fair use:

                (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

                In other words, if a derivative work uses a “substantial” portion of the copyrighted work in relation to the whole work, it can’t be considered fair use.

                In legal terms, arguing that “watching a game is not the same as playing it” is tantamount to saying “the audio/visuals of a game do not constitute a substantial portion of the experience of enjoying the original game.”

                Of course, this sentiment is not only subjective, but highly dependent on exactly what game you are talking about. However, this is actually the legal basis for the baby video being considered Fair Use…

                1. Felblood says:

                  It isn’t the substantiality of the amount.

                  It is the amount AND the substantiality.

                  Reasonable consideration must be given to BOTH.

                  No matter how much of a game you show, if showing gameplay isn’t a substantial substitute for actual gameplay, then this point is moot.

                  1. Abnaxis says:

                    Wait, what?

                    Do you refer to the point I was making, or the point I was responding to as being moot? My point was that “it matters if a watching a game isn’t the same as playing a game because that potentially means LPs aren’t ‘substantial.'”

                    You seem to agree with me, but your conclusion says my point is moot…?

            4. SgtRalph says:

              No, I think those three points do hold in cases of speedruns. Walking through that quote: “the copying of works in any medium as long as the use is solely to illustrate a point,” The point being to illustrate one of the most fastest ways to beat said game and serve as a record to prove their time claims; “it is not done for commercial purposes,” So no charging people for copies of the video, or in Youtube’s case, it might mean no monetization; “it is accompanied by a sufficient acknowledgement,” They make it clear that the game was created by and belongs to Nintendo and this is just their speedrun of said game.
              I can certainly imagine a judge laughing this out of court because I imagine many judges aren’t very familiar with speedruns, the various types of Let’s Plays or videogames in general really, however; walkthroughs, including speedruns, are meant to educate players on how to get past parts of a game. It can be about the best score, the fastest time or most goombas stomped, but either way I’d still call that educating.

              1. 4th Dimension says:

                When I was talking about LPs I am considering the type of LP where the main attraction is a Youtube personality playing a game and screwing around like most LPs do.
                If the law is worded like that speed-runs are covered.

            5. Daemian Lucifer says:

              Speedruns are as much commercial as movie critiques,which are considered fair use even whey they sum the plot for you.Speedruns illustrate a point as much as movie critique,which are considered fair use even if all they do is sum the plot for you with weird faces and voice tones.
              And all(professional) speedruns are accompanied by a sufficient acknowledgement.So all three points are true for speedruns.

              Satire is not just words.This is satire.This as well.And if someone would make a house to look like that,it would also be satire.Any art form can be satirical,not just literature.

              And the only reason you say the law doesnt work like that is because no one took it to court yet.But the same thing was true for movie critique before someone decided to take it as far as it was needed.No judge will laugh you out for standing up for your free speech,no matter what form that speech takes(verbal,textual or visual).

              1. Daemian Lucifer says:

                Yay awaiting moderation.I havent seen you in a while.

              2. Thomas says:

                A speedrun is nothing like a movie critique. Errant Signal is the equivalent of a film critique. The majority of people probably watch speedruns entirely to be entertained by the skill of the speedrunner, and that’s already probably enough to sink the fair use idea.

                Look, I’m ready to consider both sides of the discussion. I’ve made arguments for why some Let’s Plays could be considered Fair Use as its shown in Fair Use conditions. You just seem to be trying to find any excuse to justify the outcome you already want.

                Your examples tend to be really tenuous and have a ton of relevant criticisms, for example Bum Reviews contain no footage of the film, make no real attempt to copy the plot of characters, reek of parody from every angle and so on…

                And all this stuff matters, because Fair Use is very context dependent and requires examining a product through a lot of pillars. Getting money for Bum Reviews is very different from receiving money from Let’s Plays, because Bum Reviews ‘infringe’ so much less and have a much clearer fair use purpose.

                1. Daemian Lucifer says:

                  And the majority of people watching a movie critique arent doing it because of the critics skill?Siskel and Eberts eloquence and education had zero thing to do with their popularity?

                  The skill of the maker of the art has nothing to do with the final product.Artists shit is considered art not because the artist was a skillful shitter,or a great can closer,but because of his intent.If you intend to make comedy and fail,you still made comedy,only a bad one.

                  Now the tricky part is to divulge intent.No one is going to flat out say “Yeah,I just intended to get quick buck by totally copying your work”.Theyll invent some bulshit like king.com did,even when its 100% obvious what their intent was.And the intent of speedrunners is most definitely not a malicious one.

              3. 4th Dimension says:

                I don’t know where all of you got the idea I was talking only about speedruns. Frankly I didn’t even consider them, but that is my bad since we are talking about Nintendo and most YT content probably falls into those.

                Also I explicitly said reviews and critiques are fine. And they are considered fine and okay breaches of copyright not because the lawmakers felt like it when they included that exception, but because the pros of the ability of a critique and commentary on the work to improve the industry and society outweigh the cons of reducing the income of an artist. The same goes for the satire.
                Satire is included not because they wanted to protect humor, but to protect the ability to destroy a point and make funny of an issue and thus say something societal important through it while infringing on copyright of an artist. In your example above the use of potentially copyrightetd nuclear plant picture to paint on it tree bark is okay because this way the artist can express his opinion on the toppic of power plants and their impact on the environment.
                This does NOT include cases where a comedian uses some song as the background for his stand up act. In such a case I expect he has to pay royalties to the person that made the song, because he is not saying anything important about the song but is using it as help in his act. Same goes for LPs (ex. Jessie plays) where a video game is used as a background for the “act” of the artist (in case of the example Jessie Cox).

                1. Daemian Lucifer says:

                  The thing about reviews,critique and satire is that they dont have to be written,or spoken,or even added.For example,that video about the walking dead fps that shows stupid ai and tedious gameplay is 100% satirical critique,even though nothing is seen beyond the game footage itself.

                  And yes,background music is not protected by fair use.Unless you incorporate it into your shtick.For example near the end you say “and this bloody song is so bland you didnt even notice it was playing”.

                  1. 4th Dimension says:

                    In the case of critiquing broken things you would still need to preface the video to say what it’s about, or only display broken sections so the viewer can intuit. But if you are doing that you are not the problem you are not LPing and are doing a critique/review so fine.

                    As for the music part, if it’s a one time joke, where the critiquing the music is clearly the point of the video than yes, it’s satire thus it’s okay. But if the main toppic of the video is something else and you simply drop that line at the end to justify your copyright infringement, it’s infringement. The law is context sensitive and we the judges exist precisely to judge such human things.

            6. “illustrate a point, it is not done for commercial purposes, it is accompanied by a sufficient acknowledgement”

              AFAIK serious speedrunners do this don’t they? Have they left out information on whom the copyright owner is/proper crediting?

              If they earn ad revenue then sure that is very dodgy grounds, but let us assume the uploader has ads turned off (if Youtube themselves shows ads then that is their legal headache in that case).

              Speedrunners do illustrate a point, how to get from the start of the game to the end of the game as fast as possible, and many of them compete so this is no different from competitive gaming (the fastest win in a StarCraft game could also be considered a speedrun).

              And you mentioned Harry Potter. Comparing the books with a five paragraphs added is wrong. It would be more like taking all the books and reducing them as few pages as possible, potentially leaving out huge chunks of important story elements. In the extremes maybe skipping past an entire book or two.

              “Lets Plays” on Youtube that play a game from start to finish with not a single comment by the person playing (it’s a silent Lets Play if you can call it that, and they do indeed exist on Youtube) is on a lot shakier ground as that is the closest you can get to a “video recording” of a game.
              Sure the way that person is playing through the game is different from how others would, but there is no critique/commentary/opinion nothing “added” to it. In that case I would not be surprised if a game company complained.

              1. Sleeping Dragon says:

                I know this is a very serious discussion and all that but I’d like to present Book-A-Minute which I don’t think had too much copyright problems, for obvious reasons.

                1. Daemian Lucifer says:

                  Thanks for the laughs.I love the rama one.

      3. Matt says:

        I’m inclined to agree with Thomas. As much as I enjoy Let’s Plays, I think it falls closer on the spectrum to a performance than a legitimate fair use. Doing a video in which you show occasional clips of a film for discussion and analysis is a totally different animal from showing the entire film, even if you talk over it the whole time. The first example is clearly critique, the second is in a much greyer area.

        I don’t think Nintendo WANTS these videos taken down, as such, I think they just want a portion of the ad revenue as royalties. Given how much of YouTube’s popular content comes from these videos, perhaps Nintendo hopes YouTube will be pressured into a deal similar to the one made with various record labels.

        1. Thomas says:

          I think Nintendo want more than a share of the money. That’s why their “Creator” program is so restrictive and why they take down videos not part of it. It would be possible for them to automatically run ads on a video and take profits from those ads (Konami does that) but Nintendo chose not to do it.

          I’m guessing they want to control their games and they’re too bloodyminded to realise that it does way more harm than good to kill of the community of people who want to make videos about their games but won’t bend to Nintendo’s every whim.

          1. Didn’t these takedowns appear at the same time Mario Maker appeared and various old Nintendo games became available from Nintendo themselves (in their store as emulations or something) ?

            They basically saw speedruns as competition and nuked them from orbit.

        2. “a totally different animal from showing the entire film”
          Actually a speedrun would be like chopping up the film in the smallest pieces possible and skipping as many as possible.
          The “perfect” speedrun of a movie would be showing the movie title and then a cut straight to “The End”.

          A lets play would be more like having the main character spend a minute spinning around in circles for no reason (Hi Josh!), and when walking down a hallway the film camera crashes through the wall, it still follows the character but you only see the wall; and for some reason the main character keeps bunny jumping through most of the movie (Hi Josh!), and sometimes the dialog is skipped partway through, or a character goes back to a character they spoke to earlier and goes through the exact same dialog again, and then there is all the fumbling around in the characters inventory all the time.

          A Lets Play is not the same as showing an entire movie, so please don’t use that analogy (nor that of a book).
          Movies and books are passive mediums, games are interactive.

          The interactive part automatically causes a playthrough to become a variant or derivative work. The crux of the point however is how derivative is it.
          As I mentioned earlier, a silent straight through Lets Play ad so little that one might argue about if it’s derivative enough or not.

          1. guy says:

            Being a derivative work in and of itself is absolutely no protection. The copyright holder has the exclusive right to make or authorize derivative works. If the LP does not meet the criteria for fair use,

            the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

            it cannot legally include any part of the game whatsoever. Not so much as a single texture file.

      4. Steve C says:

        This is going to be a important comment. I believe it is the reason why there is always so much contention over this issue. There are two different things being conflated here.

        1) Copyright
        2) Other legally binding rights from contracts

        Youtube absolutely has the right to take down stuff. The reason they would be doing so is because they were directed to do so by other companies. They can do all this legally and even maybe forced to do so under legal penalties and it HAS NOTHING TO DO WITH COPYRIGHT.

        The simple thing is that Youtube is a private company. They can choose to do business with some customers, and not to deal with other customers. Importantly Youtube is not the entire internet. Copyright law applies to the entire internet. What Youtube does on its servers can be far more restrictive than copyright law. Youtube can take things down *just because.* They don’t even need a reason.

        Nintendo can make a contract with Youtube for $1 that says Nintendo can instruct Youtube to remove any video that mentions Nintendo. Bam! That’s an enforceable contract. It could be tortuous interference, but it’s not going to be. We plebs don’t really have any contract with Youtube. The contract is basically, “We Youtube will host your shit until we decide not to.” A perfectly valid and legal reason to not host our shit is because Nintendo is paying them more to take it down. In fact they could get in trouble in court by not taking it down. It would depend entirely on the contract they signed with Nintendo and not with copyright law.

        Copyright law is the cover so they don’t look like jerks. It has nothing to do with copyright law. It just happens to be about things that are copyrighted. Incoming car analogy– You can have your car towed. It maybe completely legal and have nothing to do with the Highway and Safety Act. It can because the owner of the private property it’s parked on has decided he now wants money and you don’t want to pay him.

        1. Daemian Lucifer says:

          Actually,I think you do sign a contract with them if you go for their monetization thing.

        2. Peter H. Coffin says:

          Nintendo could order the video down under the contract situation, but they CANNOT usurp the DMCA process to do it. They have to go outside that channel.

      5. Decius says:

        It’s not “Fair Use”, and it’s not a “Derivitive work”. A Let’s Play is a NOVEL work of art that is no more derivative of the program that is the game than it is derivative of the OS or video editing program.

        1. Supahewok says:

          That’s bull. I can make the same (or very similar) game with different software tools. Unity might have a special kind of bling map and Unreal a special kind of hair physics, but the core of the game beyond its superficial aspects can be made using either. Its not dependent on its tools to exist.

          LP’s, on the other hand, are. Commentary is inextricably tied to the game being played (unless they’re just talking about things completely unrelated to the game the entire time). You can’t take the same commentary and transpose it to another game. Ergo, LP’s are dependent on their games, and should be classified as Derivative Works.

          1. guy says:

            Well, when you make a game in Unity you actually do use copyrighted material. You can do this because the license agreement for Unity says you can and the owners can license their own stuff on whatever terms they choose.

            1. Supahewok says:

              Unity was an example I just pulled from the aether to make a point. Also, you don’t have to use the Unity shop. There isn’t a lot of point in using Unity if you’re not (so far as I am aware, and I’m aware of precious little in regards to programming), but you don’t have to.

              Substitute Frostbite or whatever else if it makes you feel better.

              1. guy says:

                The engine code itself is copyrighted and cannot be used without permission. So all the lighting, physics, shaders, etc. that Unity gives you are under copyright. Though it’s quite possible that Unity is using some code under an open source license that allows them to make free use of it in their own products as long as they license said products under the same terms; those are fairly common.

                1. guy says:

                  Now, if you wrote the entire game in Notepad, that wouldn’t infringe on Notepad’s copyright because there isn’t any part of Notepad in the actual game.

          2. Decius says:

            But the game isn’t the video of the game.

    2. guy says:

      Technically, those Japanese fanworks aren’t actually legal, at least not the ones that get sold. They reside in the same territory as fan fiction and fan translations, in that the copyright holder could pretty much automatically win a court case but no one is under any obligation to prosecute and it’s a good way to upset your best customers for basically no benefit.

      1. Hermocrates says:

        Basically, the Japanese media rights holders have an understanding with the fan (doujin) community that these fanworks are in everyone’s best interests, since they engender interest in and good will towards the original creators/IPs. You’ll even see these media companies hosting booths at events that were initially fanwork markets.

        Some creators are even known to only allow fanworks, and refuse any large-scale commercial adaptations despite the profits they could get (e.g., Zun with his Touhou series).

        1. Peter H. Coffin says:

          Concur, which is why I tend to rule out the “oh this may be a mysterious cultural thing Nintendo thinks is a good idea for inscrutable reasons”. That’s not how pretty much *all* of Japan’s publishing industry behaves. It’s really unlikely to be a social/cultural thing in the face of that many examples.

      2. “Technically, those Japanese fanworks aren't actually legal, at least not the ones that get sold.”

        Which is amusing as Dojin (fanwork) stuff is like over half the market in Japan, and many of the creators of Dojin stuff also work at the companies that designed the character or franchise. There are giant conventions where the fans and Dojin show their stuff and buy/sell it, and even some companies are there I think.

        I wonder if the way Nintendo is acting is due to their Japanese Lawyers exploiting US copyright law and the US litigation happy social norms to control Nintendos market or if it is US Lawyers giving really bad advise to the Japanese ones?

        Being a Japanese company Nintendo should of all companies understand the Dojin culture (and it’s variants around the world) better than most companies.

        1. Nidokoenig says:

          There’s been some controversy over Nintendo targeting doujins for their series, to the extent that some sites will tag Pokemon pictures as Porkyman and other code words to avoid trouble. I don’t know whether this is to maintain a family-friendly image or to maintain monopoly on use of their characters, but Nintendo is more restrictive than the Japanese average. Considering they’ve been around for over century and up until recently had been headed by members of the same family, they could understandably have a more conservative outlook than a company that started in the 80s using transparent shopping bags instead of proper sheets for animation.

  2. GloatingSwine says:

    I think they get the internet better than you credit, because the primary content they knocked off was speedruns and other custom mario level content.

    Y’know, stuff that would compete for search results with Super Mario Maker.

    Even suppressing it for the length of time it takes a content claim they have no intent to actually pursue gives them a larger share of the Youtube attention market in the Mario Maker launch period.

    It’s cynical and shit, but it’s not “we don’t understand internets”, it’s “we understand search engine manipulation”.

    Sega did this as well, when they content claimed basically everything to do with Shining Force a few years back to bump the new one’s trailer up the search results.

    1. Felblood says:

      Except that is anyone at Nintendo knew what a Youtube speedrun really IS, they’d know that it would be all the free advertising Super Mario Maker could ever need or want.

      1. Felblood says:

        I mean, imagine the kind of free advocacy the Asshole Mario community would have given to SMM, if only Nintendo hadn’t just driven them off of Youtube.

        Did some ROMhacker make a Faustian bargain?

        We finally got an official Mario level editor with an interface that could bring a whole new generation into the fold, but big N is dropping the hammer and trying to rub us out. You get the thing you’ve been dreaming of for 20 years, and all it costs you is all the great stuff you took for granted.

        This is what an abusive relationship looks like.

        1. If Nintendo was smart they would have created a Mario Maker speedrun competition, st a few criteria and seen a flurry of youtubers or whatnot rushing to be the first with the shortest run that meet the criteria. The prize for the winner could have been a free Mario Games for life (so that the winner would get all current/future Mario games for free), I’m sure that would have hit all major press and fansites at almost no cost at all for Nintendo.

          Don’t these companies employ at least one “fan expert” adviser that they actually listen to? *shakes head in disbelief*

          1. Supahewok says:

            I think there’s been a misunderstanding somewhere along the lines in this whole big discussion. If you go to PangaeaPanga’s Youtube page, you’ll see he still has some speedruns up. They’re the ones that did not use emulator tricks: things like a speed run without the use of some items, or with a blindfold on. I think Nintendo specifically targeted those videos that featured obviously hacked games. The fact that they were speedruns is immaterial to them.

            Also your contest wouldn’t work as is. Too much room for screwing with the rules if you task the speedrunners with making their own speedrun levels. If they required 3 Bowsers, what’s to stop them from putting the Bowsers in a walled off section? It would be a mess of rules and exceptions and what not they’d have to cover. Better idea would’ve been for Nintendo to either make the levels themselves, or to pick out some good ones from the initial wave of uploads.

            Anyway, you’re right that they should’ve done something, and its a missed opportunity that they didn’t.

  3. 4th Dimension says:

    Err, shouldn’t this have run yesterday, and today is DieCast day?

    1. Shamus says:

      Bad news everybody!


      1. Retsam says:

        We’re having a double-length Diecast, but it’s all Josh summarizing FFXIII plot and talking about home repair. (And is thus, taking twice as long to edit and, as such, was delayed until tomorrow)

        1. NotSteve says:

          That’s one hour. The other is discussing Metal Gear.


          1. Daemian Lucifer says:

            And how awesome combat in dark souls is.Woooo!

            1. 4th Dimension says:

              And since Shamus was sleeping Chris Josh (okay it’s mostly Josh) and Ruts go totally off the topic into discussing something interestingly obscure from ancient history, that is in no way shape or form related to games. All the while Mumbles mumbles “butts” in the background?

              1. Retsam says:

                To be honest, the random tangents into ancient history and anthropology when Shamus is gone are some of my favorite moments on the diecast.

            2. Wolf says:

              Shamus’ sink broke and he has no clue how to fix it and no idea who to ask with experience in all matters sink.

              1. 4th Dimension says:

                So this episode of DIecast is a recording of a groups Skypecall where Josh tries to guide Shamus through repairing his sink while he never did the same procedure, while not being able to see what is Shamus doing. Or better yet can see through twich, but on a long ass delay (“Yes cut that pipe” “No the other one” “This one” “Yes” Cut “NO NOT THAT ONE!”). This is the payback for the years of backseat gaming from the crew.

                Of course in the intermissions (while Shamus is off to get tea) they answer ALL THE MAILBAG!

            3. Dt3r says:

              Don’t forget Crusader Kings 2!

        2. Dt3r says:

          I’d be okay with the FFXIII thing… I seriously can’t remember a damn thing about what happened in that game.

          1. Sleeping Dragon says:

            Angst, drama, angst, deus ex machina. More or less in that order.

      2. Dt3r says:

        I don’t know how, I don’t know why… but I’m sure this is Josh’s fault.

      3. Hermocrates says:

        You’re abolishing the Diecast crew and replacing it with your own ranting monologues about how much better games are now that we have cinematic cutscenes and enough polygons to convey emotion and fresh DLC every week. Next will be your new, bold vision for Spoiler Warning in which you do solo commentary on jump-scare games, League of Legends and your new passion, Hearthstone.

      4. Syal says:

        We’ve hit a temporal rift that’s caused Tuesday and Monday to switch places?!

        EDIT: Or is it just that everyone’s too busy playing Undertale?

  4. Daemian Lucifer says:

    Well its obvious why nintendo did this:Because they want to shill their crappy editor that they call a video game(its not).Why didnt they go for speedrunners earlier,when they introduced their crappy service?Why didnt they go for pokemoners now that they went for mario speedrunners?

    And weve seen this shit done before by sega,when they wanted to push their new release trailers to the top.

  5. Retsam says:

    Yeah, Nintendo desperately needs to find some executives whose understanding of the internet seemingly goes beyond “a series of tubes that’s stealing our stuff”. While not unethical, my favorite example of this still has to be the fact that there isn’t a story mode in the newest Super Smash Brothers, because the creator was angry that people posted the cutscenes on YouTube.

    1. Squirly says:

      That actually makes me angry, because it’s a classic case of cutting your nose to spite your face.

      What a petty, myopic fool.

    2. xedo says:

      Well, they posted these takedowns on the 10th, right before the release of Mario Maker, and hired the new president on the 15th. And he has extensive knowledge of the western market because he was running the Pokemon company in 2000 when it was booming internationally, and then running NoA.

      So… hopefully they HAVE gotten an executive with a better understanding of the internet. Time will tell.

  6. No One says:

    Nintendo is very controlling of their (or what they perceive as their) stuff. I understand their motivation even if I don’t agree with it. What I think the real problem is that YouTube so cravenly agrees with these frivolous take down requests. I’d focus on YT rather than Nintendo. Nintendo is too independent and insular to bow to pressure. Google/YouTube should be an easier nut to crack.

    1. Retsam says:

      YouTube’s position makes far more sense than Nintendo’s, because there’s a real problem there: people blatantly use YouTube to violate copyrights all the time, by uploading entire movies, television shows, etc, which, if unaddressed, could leave Google wide open for prosecution. I’m not saying I’m a huge fan of how YouTube implements their solution to this problem… but there’s not really any denying that the problem is there.

      Nintendo’s position, on the other hand, is an authoritarian crackdown on a non-existent problem. As Shamus points out in the article, these YouTube videos aren’t hurting Nintendo’s bottom line.

      And, plus, the “don’t blame Nintendo, blame Google” argument misses the fact that, (again, as Shamus points out) other publishers like Activision and EA aren’t behaving the same way. Sure, Google provides them the tools for these sort of shenanigans, but Nintendo is entirely culpable and blamable for choosing to engage in them.

      1. Peter H. Coffin says:

        Nope, Google/YouTube, by setting themselves up to accept DMCA takedown notices and handle them, get a safe-harbor pass. They become Not Responsible for copyright violations on their service that they haven’t been notified about via their DMCA takedown process, and as long as they follow DMCA rules about by when and what, they’re totally immune to it, so they can officially NOT CARE about stuff nobody’s bothered to report to them.

        1. Retesam says:

          I’m not sure what part of what I said you’re disagreeing with. I wasn’t talking about how Google handles things that nobody has bothered to report as copyright violations, I was talking about the fact that Google needs some system for handling things that are reported as copyright violations, and that, while that system may be flawed, some system is necessary.

          1. Peter H. Coffin says:

            I’m disagreeing with the “people blatantly use YouTube to violate copyrights all the time, by uploading entire movies, television shows, etc, which, if unaddressed, could leave Google wide open for prosecution.” Unaddressed stuff is explicitly Not YouTube’s Problem until someone files a notice about it saying they are or are an agent of the copyright-holder and they will be filing suit. At that point, it becomes Addressed Stuff, YouTube follows the DMCA rules, and they CANNOT BE HELD ACCOUNTABLE to the copyright holder for anything.

            As far as things that ARE reported, they DO have that system, what that system is to be is spelled out by law. Done and done, and there’s no point in what-if about something else.

      2. Steve C says:

        I prefer to blame both Nintendo and Youtube. Blame doesn’t have to be exclusive. I do not blame Youtube for working it’s own best interests. Complying with DMCA and counting on safe harbor is definitely in their best interests.

        However Google also has a “no evil” mandate. They should take a principled stance on that basis. Long term this issue is very problematic and only grows as Google’s power grows. It is evil. All Youtube would need to do is tighter controls against abuse of the system. Or better customer service when it occurs. For example they could give companies that file DMCA notices strikes against their accounts when they make false or misleading claims or overreaches. If it’s just a “Hey, this is the law, we have to follow it,” while being more sympathetic to the users it would at least be something. If Youtube would just call a spade a spade while begrudgingly following the law then I’d stop blaming them.

        A principled hardline can be done and has been done. South Park stood up for fair use early. Before them, the joke was nobody could go up against Disney. Nintendo is being evil. Youtube is rolling over to evil. Both cases it’s evil.

  7. Ben Finkel says:

    “Illegitimate” might be a better word than “unlawful”.

  8. Abnaxis says:

    Disclaimer: I am not advocating for Nintendo’s crappy behavior, I just had a random thought.

    That thought being: where does theater–like, live people performing a play–fit within copyright framework? What about differing interpretations on the same script?

    When a playwright creates a play, it is basically an instruction set for actors to take prescribed actions so others can watch for entertainment. IANAL, but if some witty director decides they’re going to (say) run the entire play with an all-female cast, or with everyone dressed up as frogs, or what-have-you-reinterpretation-of-the-work, they still need some sort of permission from the current rights holder to use that script, right?

    Legally, then, how do you differentiate a playwright’s script from a gameplay conceit that requires a player to follow a prescribed set of actions to make the game advance? Could there actually be a legal basis in this for saying Let’s Plays are not Fair Use?

    1. Thomas says:

      From a random page of the internet, all plays are copyrighted. Even school performances need to pay royalties technically.

      More than that, _modifying_ the play without the creators permission actually breaks copyright. Samuell Beckett sued a production company for breaking copyright by placing a scene in a railway station instead of where the stage directions say it should go. He’s actually forced production companies to stop running shows that didn’t follow his directions.

      Technically, if you did modify a play somehow without getting permission or breaking copyright, then your modification of the play is also copyrighted to you now.

      Performing ten minutes scenes from a play also breaks copyright.

      (All according to a random website however).

      1. Benjamin Hilton says:

        As someone who has performed in local theater for years: Royalties must be paid to have the right to do the show. However at that point the director and cast can make all the changes they want and be perfectly fine.

        1. Thomas says:

          I suspect you’ll find that embedded into the contracts of the royalty payments it automatically grants permission to change what you want. As I’ve said, there’s a solid example of a playwright not granting people that permission and successfully blocking plays who broke with that.

          Either that, or most playrights don’t care to push for that right. (Most would probably encourage it, right?)

        2. PAK says:

          As someone who has also performed in local theater for years: this is totally wrong. It depends on whether the work is in the public domain, and what publishing company you’re dealing with. Of course, people rework Shakespeare all the time. A theater I have a longstanding relationship with decided to mount a production of Yasmeena Reza’s “Art” with an all-female cast instead of a male one. Permission for this change was not granted by either Samuel French (the publisher) or the playwright. It happened that Reza was in L.A. (~50 miles away) for a regional premier of one of her other works. Someone tipped her off about our theater’s changes. Sam French sent us a cease and desist. The production stopped. We lost money. We blew it.

          1. Benjamin Hilton says:

            Well then I recant. Apparently none of the changes made in the shows I have done were either major enough to warrant recourse, or simply no one in power ever got wise.

            1. Nelly says:

              It depends on the show, of course. Of the two I’ve directed recently, you can’t gender-swap characters on Terry Pratchetts work (and so my Pewsey Ogg and elves were male, desire being played by female actors); while Accidental Death of an Anarchist is more loose with such decisions – my Superintendent and Constable were female (while keeping the false moustache gag!) rather than male.

              Both of these are understandable positions – you don’t want a male Granny Weatherwax, for example…

    2. Falterfire says:

      I’d contest the idea that your playwright analogy is at all analogous. With a video game, the experience being sold is that of playing a video game. Watching a video of that same game being played will never be the same because the viewer is fundamentally missing the main mode of interaction with the content.

      If I watch a good play or a bad play or a weird play, the fundamental action is the same: Watching some sequence of events occur on the stage while I heckle and throw peanut shells from the balcony. With a Let’s Play of Mario Maker (to use the obvious example), there’s no way I can actually make a Mario level (or play a Mario level somebody else made).

      I know fair use is messy, but it also includes provisions for ‘transformational works’, and I’d say a Let’s Play is pretty clearly a transformation from ‘playable video game’ into something different.

      1. Thomas says:

        That’s not the type of transformation being talked about.

        Here’s an easy illustration, if I write a book and someone wants to make a film adaptation of it, they have to pay me money to do so. It’s still covered under copyright.

        Is changing a game into a youtube video of a game more transformative than changing a game into a movie sharing the same title and some of the characters of the game? Yet the latter is still covered by copyright.

        Being transformative means “A derivative work is transformative if it uses a source work in completely new or unexpected ways”. By now Let’s Plays are certainly not completely new or unexpected. It is a messy area apparently though, and lots of people argue things either way with it.

      2. Abnaxis says:

        But how do you make that argument in court?

        If I buy a ticket to the theater, that purchase is intended for my own private enjoyment. If I decide to take the play I saw and publicly reproduce/re-envision the plot for others’ amusement, I have broken copyright even if I am not re-distributing the script (the actual, original creation).

        How do you legally argue the difference between acting out a Broadway play and playing a game in front of an audience? How is one transformational, when the other isn’t?

  9. Daemian Lucifer says:

    Man,how I wish some big youtuber(preferably The Pewds Himself)would take youtube to court to finally get rid of their idiotic and unlawful “guilty until proven innocent” bot scheme.#ihatecartmanbrah

    1. Thomas says:

      Youtube’s scheme from the youtube side is actually created from several court cases which have mandated youtube’s behaviour. Under the DMCA if a rights owner requests a video to get taken down, they have to do it. They’ve actually been sued several times for not taking down enough videos or not doing more to take them down, although they generally survived those suits.

      It’s the right’s holders demanding videos get taken down without checking for fair use that’s unlawful. The dancing baby case was trying to get that enforced, and I was hopeful it would work, but the Rocketeer linked to this which suggested it won’t work.

    2. Knul says:

      Even someone like Pewdiepie is way too small with way too few funds to take a corp like Google or Nintendo to court. This is something that need to be tackled on a U.S. Supreme Court or EU Commission level.

      1. Supahewok says:

        Dude raked in 7.4 mil in 2014. Assuming he doesn’t spend it as soon as he gets it (which is possible, young people who suddenly come into wealth don’t tend to manage it well), he’s got the income to maintain a court case for the 5-8 years necessary to take it to the top.

        1. Raygereio says:

          You know? I’m pretty sure if Pewdiepie were to sue anyone I’d cheer on the other side out of sheer principle. Even if its PuppieTortureMurder Inc.

          1. Supahewok says:

            Can’t say I particularly disagree, but beggars can’t really be choosers about who gets to represent them. He’s got the money and the investment. Notch could also do it but his work isn’t really tied to this conflict like PewDiePie’s is and frankly I think he’s a terrible manager and wouldn’t want him near a court.

  10. Lame Duck says:

    “But to have Nintendo doing this, and for them to do it with no clear benefit or strategy is truly baffling.”

    Err…it seems kind of obvious to me why they’re doing it. You explain yourself in the article:

    “How these videos work is that the speedrunner will often take the ROM (the memory image of an old Nintendo cartridge) and run it on an emulator. In the process, they often modify the game code to make it harder, or funny, or insane, or whatever else seems fun.”

    Which almost seems like the sort of thing Nintendo might want to discourage so people will instead have to buy their recently released product “Super Mario Maker”.

  11. Tektotherriggen says:

    Terrible analogy time: Suppose American Football (or your other favourite sport) had its rules copyrighted (or possibly patented – I’m not sure what should count). You might realistically need to pay a license fee to stage a game. But if you paid the fee, played your game, and then posted a video of the game, should you pay the NFL again for the right to post the video?

    What about playing a board game or tabletop RPG? 1st-person video of a roller coaster? If you take photos from a scenic railway, does the railway company own your photos?

  12. Knul says:

    I wholeheartly agree with Shamus on the “there are no good guy corporations”. They are not necessarily evil, but they have interests that are not in any way aligned with consumer (i.e. gamer) interests.

    A lot of people have this weird loyalty towards companies like Nintendo, Valve or Bioware, while these constructs have no loyalty at all (if that would even be possible) to their customers at all. They are created and maintained to create profit.

    People within those corporation can have loyalty and other lofty emotions and in small companies (say < 30 people), such people can have enough sway over the whole company that the company behaves as if it has benevolent feelings.

    But all of that just goes out of the window in large companies, which have such a diffusing of responsibilities and such huge customer bases that it's impossible that any personal relations between the corp and any customer exists.

    Large game corps have already enough power to fuck us up without droves of loyal games defending their anti-consumer nonsense.

    1. Daemian Lucifer says:

      I dont know,there are few corporations that I would call good guys.The question isnt really “loyalty to customers” but “treatment of customers”.The way valve and cd projekt red treat their customers is quite fair.The way nintendo and ea treat their customers is definitely not fair.And lets not forget that some companies are most definitely evil.We should distinguish between douchy companies and evil companies.

      1. Raygereio says:

        The way valve and cd projekt red treat their customers is quite fair.

        Ah, yes. Valve blatantly ignoring consumer-protection laws, having a support strategy that seems to consist of ignoring support tickets until the person calling for support gives up and thinking up the whole paid-modding abomination (screwing over modding communities just to get a few pennies) is a great way to treat your customers.
        And offcourse let us never forget CD-project targeting people who they accused of piratting Witcher 2 (but have no actual proof for) with vague legal threats in an attempt to scare them into paying 15 times Witcher 2’s original retial value. How nice of them.

        On the flipside a lot of the stuff people throw at EA isn’t as black & white as gamers like to think. I’m not going to defend them, but to call EA “evil” is just silly and leads to gamers pointing the finger solely at EA for situations where other people are at fault or share blame and gamers dismissing good initiatives just because of the supposedly “evilness” of the source.

        1. Daemian Lucifer says:

          Because forcing your workers to work overtime with no bonus is not evil,nope not at all.

          Also I love your straight faced

          isn't as black & white as gamers like to think

          following that completely black and white tirade in the previous paragraph.

          1. Raygereio says:

            Because forcing your workers to work overtime with no bonus is not evil,nope not at all.

            That is certainly wrong by – I dare say most – standards of ethics and law.
            Thing is, if you want to call EA “evil” for that. Then unless you’re feeling hypocritical you’re going to have to call pretty much the entire gaming industry evil. The EA Spouse blogpost from back in 2004 focused on EA. However, crunch is a far wider problem throughout not just in the gaming industry, but throughout the entire development sectors (something you can easily find out for yourself with the most basic of searches on the topic). For example you can find posts similar to EA Spouse’s about other dev studios (Wives of Rockstar San Diego employees for one) and Amazon and Google were under fire not that long ago over labour abuse and unpaid overtime.

            And if you had bothered to actually read, you might have understood that what you dismissively called a tirade was me pointing out that your so called “good guys” have bad points. Meaning their records aren’t squeaky clean and white. Hence the “things aren’t black & white” comment.

            1. Daemian Lucifer says:

              Then unless you're feeling hypocritical you're going to have to call pretty much the entire gaming industry evil.

              Who says they arent?If they dont pay bonuses for overtime,they are evil.

              And if you had bothered to actually read, you might have understood that what you dismissively called a tirade was me pointing out that your so called “good guys” have bad points.

              Who said that?But making mistakes and having poor management is not the same as deliberately trying to screw over your customers.

              1. Raygereio says:

                Ah. So when EA screws over their customers, it’s them being “evil”. But when Valve screws over customers it’s just a harmless mistake.

                1. Daemian Lucifer says:

                  Where have I said that ea screwing over customers is what makes them evil?It makes them misguided(your mother will hate this campaign),or just dicks(dlc),but thats not what makes them evil.Bullying their employees and stealing from their business partners is what makes them evil.Seriously,watch Ross’s video,he explains the difference perfectly.

                  Maybe I shouldnt have lumped the two comments together up there.

                  What I said about customers is the fair treatment of them.Does ea do good things sometimes?Sure,origin gave the option to refund your games pretty much immediately.That was a good move.Does valve do bad things sometimes?Sure,their customer support was never commendable.However,the thing to keep in mind is what these two focus on,and the ratio between being dicks to being supportive.From what Ive seen so far,valve were dicks far less often than ea.

    2. Trix2000 says:

      I don’t think it’s so simple, since it’s been proven in many cases that a company that pays attention to and caters (to some extent) to their customers can have great success. They don’t have to be perfect (and I wouldn’t expect any company to be), but good customer relations is very valuable for marketing and whatnot.

      You’re right that their main goal isn’t going to be “please the customer” in most cases. Companies exist to support their employees and investors, and that means making money is paramount. However, pleasing the customers can be a means to an end in that case – happy customers are more willing to support you with dollars long-term provided you have a reliable track record of good products/service.

      The issue is that it’s too easy to forget that aspect, or to look towards more short-term goals for making a profit over the long haul. Especially as companies grow larger, it’s more and more likely for certain individuals and groups to take on those sorts of negative mindsets. Great companies are structured and led in such a way as to control this sort of thing, but it’s a hell of an undertaking without a clear solution. We’re talking about organizing hundreds and thousands of different people to have similar mindsets.

      But it is possible, and on the small-scale I think every company has its parts that really do care about their work and their customers. Some are just better at it overall than others.

  13. Thomas says:

    In your article you write
    “Nintendo has no proof of wrongdoing.

    This is one of the most basic and fundamental elements of criminal and civil justice in the modern world: You can’t be punished until you’ve been proven guilty.”
    That’s actually incorrect. In civil law, you’re not innocent until proven guilty, that’s only a feature of criminal justice. And copyright is civil law.

    The UK copyright service writes
    “copyright law is principally civil not criminal law. Civil law requires a lower burden of proof, actually making it easier to prove infringement.

    In a criminal case, the defendant is innocent until proven guilty beyond any reasonable doubt. However, in a civil case, the plaintiff must simply convince the court or tribunal that their claim is valid, and that on balance of probability it is likely that the defendant is guilty.”
    In their FAQ on 10 myths about copyright. This is also true in the US

    1. Daemian Lucifer says:

      Um,that doesnt mean that you arent innocent until proven guilty,only that its easier to show your guilt.All law,all the way back to hamurabi,is based on the principle of innocence until proven otherwise.

      1. Thomas says:

        I literally quote you legal experts who say “[in criminal cases] the defendant is innocent until proven guilty beyond any reasonable doubt. However [in civil cases],”
        and you try and dispute that. And you don’t even bother to look up a single source or do any research. You just say it because you assume it’s true and if you assume it then surely you must be more correct than anything in any of the links I’ve provided.

        How about if I link you the wikipedia page which says
        “In many nations, presumption of innocence is a legal right of the accused in a criminal trial.

        In the European Council you’re right is:
        “: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law””

        If you read that article, you would find that in fact, that principal was only _later_ applied to civil law, and only in a select few countries (as in probably less than 10), of which the UK, the US, Canada, Mexico and Japan are decidedly not examples of.

        I know I’m getting heated, and I imagine Shamus is going to moderate me soon, but please consider the disrespect you’re giving to me by just ignoring any of the time I put into trying to research what I add to the discussion.

        1. 4th Dimension says:

          So in other words (simplifying) “innocent until proven guilty” is an exception/privilege the that is specific to the criminal law and is not necessary in rest of the law?

          Hmm, now that I think about it, it’s similar with traffic violations. If the cops send you a ticket where they say they saw you speeding at such and such time and place, it’s considered a closed case UNLESS you appeal and go to trial to PROVE you are innocent?

          1. Thomas says:

            I’m not a lawyer, I’m just googling things to try and find how they work, but that’s my impression of how it works too. A company doesn’t have to prove you’re guilty of copryright infringement, it just has to show that it has reasonable evidence to think that you’re probably guilty and then iyou have to provide evidence to dispute that if you disagree.

          2. Daemian Lucifer says:

            Not quite.When the cop gives you a ticket for a minor offense(speeding),you can pay it without complaint,or you can ask to go before the judge.The first one is akin to settling outside of court in criminal cases.But in front of the judge you both need to present proof for your case,and the only difference is that the cops testimony is considered proof enough,while yours isnt.

            1. 4th Dimension says:

              Yes but if they give you the ticket, you don’t go to the judge and don’t pay the ticket you are now liable to be sued for not paying since by not going to the judge you are considered guilty of the offence you were fined for.

              It’s similar here. If they ticket you (through Content ID) and you don’t go to the judge your content is considered illegal and is staying down. If you do, it’s still staying down probably until the court rules on who is right in this case simply so you can not continue to infringe while stalling.

              1. Daemian Lucifer says:

                You get penalized because a person of law(police officer)presented their case(their testimony)to the judge,and you didnt present any counter case in your defense.And if you decide to go to the judge,you still arent penalized until after the judge hears you out and renders a verdict.

                With content id,some anonymous person presents no case(they just say “This be mine!”)to the youtube(the judge),and youtube just sides with them because.And you get penalized even if you present your counter case until the accuser chooses to not pursue the thing any more.Thats bass ackwards.

                1. 4th Dimension says:

                  Ahh, but there already is proof if it’s content id and not some random flagging. Content ID can probably be statistically proven to be unlikely to flag your video if it doesn’t contain any copyrighted material. So the case is not did your video contain the material, because it most certainly does (baring weird exceptions (Vlog that gets content id’d because somebody in the background is watching a movie)). What you are trying to prove if it’s fair use. Although I do agree that there legally should be a human reviewing these content id take downs to judge just that.

                  As for the court end than removal of take down or court start then removal, I do know why it feels ass backwards, but I can imagine the explanation why it’s done this way. If your content does contain other artist’s content, the take down stays to prevent you for further damaging the accuser. It’s like if you made copies of a book ans are selling or even giving them away on the street, if you are sued it’s completely normal once it’s established that you are distributing other’s peoples work, for your copies to be removed from the street until the court decides if you really had a right to do that. Because if they didn’t take you down you could significantly hurt the income of the accusing artist while the case is being deliberated.

                  1. Daemian Lucifer says:

                    Ahh, but there already is proof if it's content id and not some random flagging.

                    You mean how all those videos containing the word “pixel” were identified with proof?Or every game containing “saga”?Or the dancing baby thing?Or sony trying to ban localhost?Such great software for generating proof contentid is.

                    If youtube had all of the big companies registered and their contentid software approved by a third party,that would be a different thing.

                    @The second part
                    But significantly hurting the income of the defendant is ok?Especially in cases where it was a false positive,or a deliberate dmca abuse?

                    To go to a car analogies once more:for example you park in the spot of a disabled person.They come home and need to park there.So they call the cops,they arrive and…have to wait 15 minutes before they can tow away your car*.It doesnt matter that the disabled person is being hurt by your abuse of their parking spot.Or you cause a car crash and the police arrives to the scene.They cannot just tow away the wreck,even if it is significantly hurting the traffic and anyone caught in the jam,they have to at least photograph the scene(if its a major traffic jam,like on a freeway),or more often complete the whole process of taking statements,measuring alcohol levels,etc.

                    *And while this isnt usually the practice,Ive seen a cop suspended because someone caught them breaking this law.

                    1. guy says:

                      Actually, if someone knowingly files a false claim, they are liable for all damages and court fees incurred as a result. That’s just civil liability, though, so it tends to favor the large corporations.

                    2. Daemian Lucifer says:

                      Which is why dmca is a shoddy law in need of a rehaul.

                  2. guy says:

                    The thing with the DMCA is that it would be unreasonable to expect Youtube to actually consider every takedown notice on its merits. They get so many that they can’t reasonably have a lawyer look over all of them, and even having someone do a basic “is there even copyrighted material in here at all?” check without considering fair use would be wildly expensive. So in exchange for not being liable for copyright infringement on their servers, they are required to promptly take down videos on request*.

                    However, if the uploader sends a notice that says the video isn’t infringing, Youtube must notify the copyright holder and then put it back up ten days later unless the copyright holder notifies Youtube that they’ve chosen to take the uploader to court. At least, that’s the extent of the DMCA requirements; I’ve heard Youtube tends to be late with the re-upload. There’s also been some precedent that obligates them to have something in the style of their three-strikes rule to stop people from just repeatedly re-uploading to get around takedowns.

                    *Well, any video containing copyrighted material that a representative of the copyright holder asks them to take down.

                    1. Daemian Lucifer says:

                      They get so many that they can't reasonably have a lawyer look over all of them, and even having someone do a basic “is there even copyrighted material in here at all?” check without considering fair use would be wildly expensive.

                      So what?If they want to be a global company,its their responsibility to burden the cost.No one says “man,this international bank gets so many customers daily,its unreasonable to expect them to have 5 branches in every major city”,and yet they do just that if they want to be considered a good bank.No one forces youtube to provide free service to everyone and their dog,they choose to maintain that themselves.Just because a part of a venture is difficult or expensive doesnt mean you get a free pass for not doing it when you go into that venture.So why does youtube get a free pass?

                    2. Supahewok says:

                      Because it is free. And generally speaking, convenient. You can and will put up with a lot of shit if the price-tag is zero.

                      If Youtube put up a $20 subscription gate to post videos, then probably the number of claims would drop to a reasonable level, AND they’d have the money to support lawyers investigating those claims.

                      Also, half of the internet would die until some other video sharing site gained steam, but the same problems will migrate over along with the content.

                      Also, banks are a bad comparison. Orders of magnitude more regulation, and in my experience the big banks are pretty crap anyway. Plus, physical locations are more about bringing your product/service to a certain area, which you need to do to have customers in that area. Youtube does not need to come to you.

                    3. Ingvar says:

                      According to DMCA, they’re not allowed to consider the merit of a takedown request. They get a DMCA take-down request, they have to take the content down and notify whoever uploaded it.

                      DMCA is a spectacularly weird law.

                    4. Daemian Lucifer says:

                      According to DMCA, they're not allowed to consider the merit of a takedown request.

                      Yes they are.If I upload a song made by Kanye West,and then file a dmca against the official video,they absolutely should check which one was uploaded first,who actually holds the copyright,etc.They only need to take down the content if they have the knowledge that infringement has taken place,or have knowledge of facts that make it so that infringement is apparent.But if they know that no infringement is actually going on,they dont have to take down anything.Which is the reason why dmca requires a designated agent to go through this stuff,and which is the reason why youtubes automated process is such a terrible thing.

                2. Peter H. Coffin says:

                  Please be careful. YouTube is NOT acting as judge in this, anymore than a liquor store is acting as judge by refusing to sell to someone that can’t prove age. They’re both using a process that protects them from culpability *in the event* that a law is being broken. “Guilty” or “not guilty” never enters in.

                  1. Daemian Lucifer says:

                    Thats the problem with analogies.I know youtube is not the judge in this case,but we started by comparing traffic to dmca and…well,somewhere along the line it became weird.

                3. Ingvar says:

                  No, ContentID says “there’s enough match between X (a YouTube video) and Y (material you have provided to ContentID as yours), you should totally review X and check if that is true” (and bear in mind that ContentID was imposed on YouTube by a court, with “have all uploaded YouTube material reviewed by a human” as the other acceptable alternative if YT wanted to continue being a DMCA “safe harbor” or whatever it’s called).

                  Then whoever gets that ContentID signal either reviews it, or fires a DMCA takedown at YouTube, at which point YouTube has exactly one option, and that is to take the video down. Otherwise it is no longer under DMCA protection and can be sued for any further copyright infringments that happens through the service.

                  1. Daemian Lucifer says:

                    and bear in mind that ContentID was imposed on YouTube by a court, with “have all uploaded YouTube material reviewed by a human” as the other acceptable alternative if YT wanted to continue being a DMCA “safe harbor” or whatever it's called

                    I dont even know why an automated response was even allowed,when a human reviewing these is both required by the law and would be the end of at least 90% of all the false dmca claims.Just so youtube could keep its cost at the minimum(and thus monopolize the market)?Well whoopdedo!

          3. xedo says:

            To answer your question about speeding tickets literally, presumption of innocence only applies to judge/jury. Police and the prosecution are absolutely presuming and attempting to prove your guilt to another part of the government that they must convince.

            1. Nidokoenig says:

              What’s more, it’s precisely because they’re a branch of government with government powers and funding to prosecute their case that they have to meet the innocent until proven guilty standard, whereas in civil cases it’s supposed to be two equals with closer to equal means and thus it’s harder to assign the higher burden of proof to one side. I’d argue holding a multinational to higher standards of research and presentation than some random dude working from his bedroom is reasonable, but the problem with that idea is working out where the line gets drawn.

        2. Daemian Lucifer says:

          I ignore nothing,Im going by the quote you gave.The difference between the two is not in innocence,but reasonable doubt.In criminal case,you have to prove that there is no doubt of guilt.In civil case,you have to merely show that there is some validity to your claims.But in neither of the two does it say that simply going “they guilty” is enough to fine someone.Thats lynch mentality,not law.

          1. Thomas says:

            Innocent until proven guilty is about reasonable doubt. A court has to prove you guilty beyond reasonable doubt because it assumes you’re innocent. A civil court only has to prove there’s a lot of reasonable doubt that you’re innocent and then you have to provide your defence for it (I think).

            EDIT: Also, sorry if you saw some of my more heated comments. I’ve tried to go back and edit them a bit, I was worked up and it was unfair of me.

            1. Daemian Lucifer says:

              No worries,I have a thick skin.And your heat is really not that high.

        3. Shamus says:

          I think one of the reasons you two are having trouble understanding each other is over what we mean by “proving” innocence / guilt.

          Even in a civil case, Bob can’t accuse me of doing something, instantly get damages, and then we go to court to see if I can prove I’m innocent to get it back. No matter what, we have to go to court and present evidence before any penalties are awarded. Even if the case itself is structured so *I* have the burden of proof and not Bob, he still needs to make his case and I still get my day in court.

          But in the case of YouTube, that’s exactly what happens. The accuser doesn’t need to present *any* evidence. All they need to do is accuse me and I immediately take on the penalty, and from there I can begin fighting to prove my innocence and have the penalty removed. I think that’s substantially different from how other cases – civil or criminal – are handled.

          1. Daemian Lucifer says:

            Yup,pretty much what I was trying to say.Thanks.

            1. Steve C says:

              I’m always impressed by Shamus’ ability to take difficult concepts and simplify them into plain language. He’s like a walking (err sitting… lounging?) “For Dummies” encyclopedia for all topics.

        4. Felblood says:

          The entire line says “However, in a civil case, the plaintiff [b]must[/b] simply convince the court or tribunal that their claim is valid, and that on balance of probability it is likely that the defendant is guilty.” [emphasis mine]

          Daemian Lucifer is correct. While the burden of proof is lessened for civil cases (in most countries), it does still exist. The proof can be as little as your own testimony against the defendant’s, but unless he just looks really shifty, it would probably be a good idea to bring some real evidence. Even then, he suffers no penalty, until he has a chance to answer the charges. (–even if he simply chooses not to contest them, such as with a traffic ticket.)

          That said, the DMCA ( and any system modeled around it) undermines this crucial part of the process. Nobody needs to convince anyone of anything. You file a DMCA complaint, and YouTube is obligated to act like the claim is valid, until the defendant produces evidence of their own innocence. (Yes, Google uses this idiocy to defend a lot of indefensible Bullshit, but they wouldn’t be able to wave around that paper excuse if the underlying framework wasn’t such a crock.)

          It doesn’t matter if a claim is submitted by LieBot2.0, who has a history of one million claims, 99.9% of which were successfully disputed. You get a claim, you have to put your own reason and good judgement aside and pretend you think it’s legit. That’s insanity.

          Google is the king of data harvesting and correlation. The idea that the owners of a search engine can’t collate data and sort it for relevance, because it would be too expensive to scale, is a bald faced lie. Scaling sorting algorithms is what they do over there.

          It’s time that we stopped standing for this BS and took our business elsewhere!

          Um.. I guess Dailymotion is kind of okay, right? I mean, the embed player sucks, but at least their CnD process is really weak, right?


          1. Felblood says:

            You know what happens when you jump into an argument on the internet, get distracted, and come back hours later to finish your thought, without checking for new posts?

            You look like an idiot.

    2. krellen says:

      To clear up a bit of legalise: “Innocent until proven guilty” does not change in these cases – it is still the prosecution’s job to prove guilt. The standard that changes is how strongly it must be proven – “beyond a reasonable doubt” versus “preponderance of the evidence”. The former means that any level of doubt exonerates the accused, while the latter means conviction if it seems likely the accused is guilty.

      Oversimplifying it, “beyond a reasonable doubt” means you have to be 100% sure, while “preponderance of the evidence” means you only have to be 51% sure.

  14. Steve C says:

    Aww. I got quoted. I feel all warm and fuzzy. :-)

    1. Steve C says:

      However it was copyrighted (as everything everyone says on the internet is) and quoted in it it’s entirety. So now I can make a DMCA claim. And once I do that, I will have all the internet monies! Mwhahaha.

      1. Daemian Lucifer says:

        You forgot to add © to that comment,so it is under public domain now.

        1. MichaelGC says:

          I imagine the royalties from all the other internet Steves will soften the blow for Steve ©.

          1. NotSteve says:

            I have never felt better about my username.

  15. Primogenitor says:

    You might want to sort out non-ASCII coding with The Escapist – last I checked “naàƒÂ¯ve” is not a word :p

    (oh, and I guess text / emojii encoding could be a column if you wanted to?)

    1. Neko says:

      Yeah, I noticed that and came here to point it out too – it’s on the second page near the end. The Escapist website alleges that it is transmitting in the windows-1252 character encoding, but I’m guessing that the actual text of Shamus’ post is in UTF-8 like anything sensible. Possibly the Escapist’s post-submitting system is either blindly assuming that any input text is also windows-1252, or it’s accepting other encodings from browsers but then failing to re-encode that to windows-1252 for presentation.

      1. Shamus says:

        For context: I write in Google Docs, but then I copy & paste the article into a simple text file and email it to them. It’s possible I’m the one that ruined the special character without realizing it. (Although ideally an editor should have caught it and either fixed it or asked me to clarify.)

      2. 4th Dimension says:

        They are still using that . . . *groans*. It’s 2015 not the 90s and UTF should be the industry standard if not more. It’s barbaric to use the old encoding pages.

        1. Daemian Lucifer says:

          Yes,yes,and all video sharing should start switching to html5,yet except for youtube I dont see anyone else doing it.

  16. Wide And Nerdy says:

    “And really, we’re talking about a modified copy of an out-of-print game, which is not being distributed to the public.”

    1) You can in fact purchase Super Mario’s 1, 2, 3, World, 64, and Galaxy 2 from the Wii U eshop. Several other Marios are available both core and secondary titles on either the Wii U or 3DS eshop. And the prices are pretty reasonable too. 5 bucks for the first three, I think 8 bucks for World, and 20 bucks each for 64 and Galaxy 2 IIRC.

    2) Maybe he’s not guilty of distributing but wherever he got the original ROM from is unless he copied it from his own cartridge.

    Now the rest stands and I think its ridiculous that Nintendo took that down. All I can figure is that they feel they have the corner on moddable Mario games now that they’ve released Super Mario Maker. I don’t think the timing is a coincidence.

    I’m curious about the legality of uploading videos of your Mario Maker levels.

    1. Supahewok says:

      Probably they want those uploads to go through their Creator Program, with the restrictions inherent in it.

    2. Daemian Lucifer says:

      Many mario lets plays predate the wii,and the roms used for those most definitely were created during the period when those were not available for purchase.

      1. xedo says:

        Historically, that’s not grounds for infringement. Copyright holders can intentionally take materials out of print to increase demand.

        In one case, a niche religion had an original religious text that they owned the copyright to. A splinter group left the church, and found themselves legally unable to acquire copies of their own religious document because the group they had left didn’t care to make any for them. I wish I could remember the name of the incident, I read about it in Free Culture (by Lessig).

        1. Daemian Lucifer says:

          Was it scientology?Because that sounds like something scientology would do.

          1. Supahewok says:

            I’ve never heard of branches of Scientology breaking off from the main church. I have heard of several cults that had power struggles and ended in the losers and their faction being effectively exiled. These folk, for instance.

            1. xedo says:

              Actually not scientology, although their works are definitely copyrighted and controlled. No, it’s these guys, the Worldwide Church of God.

  17. Supahewok says:

    I understand that you don’t control the title of your Escapist articles, but you might want to get an editor to change this one. Using Iwata’s catch-phrase for his community outreaches a couple months after he died in that sort of sarcastic tone is… really tacky. At least in my opinion.

    On topic, I side with Thomas on most of this. Nintendo does indeed have a leg to stand on, and although I’m not sure if they could win a court case over this, they certainly possess the legal foundation to put up a decent and expensive fight. I’m not sure how to feel about it. As much as we would like it to, the Internet isn’t going to stay the Wild West forever. Somebody’s got to go court over it so that corporations don’t get to write the whole play-book, but it is going to be written sooner or later and I can easily imagine a worse deal than what Nintendo is trying to push. A compromise is going to be reached in the future, but somebody has to step up to help make it.

  18. Joe Informatico says:

    Please, Nintendo is the original video games industry bad guy. Back in the NES days they blackmailed third-party publishers to prevent them from making games for the competition. Nintendo had the bigger market share, and told third-party devs they’d be locked out of the NES if they developed for Sega.

    Then of course, they entered into a joint venture with Sony to develop a CD-ROM peripheral for the Super NES. Until Nintendo determined the terms of the partnership were unfavourable to them and then at the CES show where the partnership was supposed to be announced instead publicly announced they were partnering with Phillips instead. That was the dickest of dick moves to my perspective. I can’t imagine how Sony interpreted it in the context of Japanese corporate culture.

    Sony got the last laugh, though. They turned that venture into the PlayStation, which won the 5th console generation by a country mile, outselling the Nintendo 64 3 to 1, then Sony’s PS2 went on to dominate the 6th generation as well. A big reason the PS1 did so well? A third-party developer jumped ship from Nintendo to Sony: Square released Final Fantasy VII for the PS1. Karma.

  19. Cilvre says:

    It’s been awhile since I’ve purchased nintendo games… doing stuff like this isn’t going to change it, and I hope they lose a portion of their fanbase each time they do that.

    1. Supahewok says:

      People on the internet tend to shit the bed when stuff likes this crops up, but honestly, not that many people really care. I’m looking at PangaeaPanga’s video page now: he has one video of him (or someone) doing a blindfolded Super Mario World speedrun that has a million views, and the rest of his stuff is tends to only have a few thousand views with a couple in the ten-thousands (both of which were posted around the time this controversy began. They’re also about Super Mario Maker, and being probably among the first set of “expert” levels posted to Youtube might be inflating the standard number of views).

      I don’t know of a way to find out the view counts on his pulled videos, but right now he looks like one of those 1 hit wonders with an actual fanbase that’s fairly small. In other words, he’s just enough of a somebody for news outlets to latch onto and push a story of moral indignation that attracts clicks and lets everyone have a few minutes of righteous chest pounding before returning to what they were doing before. The actual number of dedicated speed-run fans is a small and inconsequential demographic except for a few days a year when media covers the big annual speed run event and a lot of people just pop their head in to see what goes on for a few hours, at which point they’ll politely and metaphorically clap and go about their business. This isn’t news to anyone who is actually part of that fandom, and unlikely to sway whatever individual positions they occupy in substantial numbers.

  20. SlothfulCobra says:

    I think the reason has to be that Nintendo wants to reduce the amount of Mario Romhack buzz in order to make people want to buy Mario Maker more. They weren’t getting in on this whole youtube censorship deal until just now, so that’s the only reason that I can see. If Mario romhacking stays popular, then Nintendo is essentially competing with themselves, only rom-hackable copies of their old games are probably cheaper and more immediately usable then their big pricy new product.

    1. xedo says:

      The takedown was the day before the release of Mario Maker, so it’s definitely tied to that. Have there been any more since?

      I’m of the opinion that while Shamus is 100% correct about copyright, he’s dismissing the need to defend trademark too quickly. Trademark has to be defended or else you risk your IP becoming a generic name, the way kleenex and xerox are now.

      To speculate wildly: considering this happened before the new president came on board, I doubt it’s a massive ongoing policy of youtube censorship. This could just be an employee getting overzealous defending the use of art assets and IP that have just received a major second life with the release of the Mario Maker game. If it’s a one-off round of claims, then they might have done this just to show shareholders they are protecting Mario IP.

      I haven’t read the actual notice that was given. Was this done by Nintendo LTD, Nintendo of Japan, or Nintendo of America? That would also give more interesting information about who is responsible for this, why, and what the heck they were thinking.

      1. Asimech says:

        Trademark isn’t the same as IP. Trademark is essentially the name or identifier for your IP. Losing the trademark just means the name itself isn’t under your control, but as long as you keep using it (new products using the name or existing products staying in the market) you shouldn’t be getting in trouble for using that name or identifier for it. And you would still hold the rights for the IP itself.

        So if, say, Kleenex had a patented way of doing paper towels they wouldn’t lose that patent just because “kleenex” had become a common word for paper towels & therefore unusable as a trademark for them.

        Or if Team Fortress became a common word for “team based online shooter” Valve would still own the IP rights for the game Team Fortress 2 even if they wouldn’t be able to hold on to the trademark “Team Fortress 2”.

        Also because I’ve heard this often used as a defence for trigger happy lawsuits and other related nonsense:
        If your trademark is turning into a common word or phrase then it’s likely too late to “defend” it in any shape or form. If people are using “kleenex” interchangeably with “paper towel” then “kleenex” has become common word for paper towels and a cease and desist, for example, is not going to change things. And “defending” it before that should take in the form of your marketing emphasising how your Thing is not ‘a thing’ but The Thing and all other are merely paper towels.

        Notable exception is if the one using it is another company, but that’s generally unlikely even after it has become common word because companies love to avoid being sued.

        Also you don’t have to defend your trademark if, say, a company does a game called Foo: Bar and your company’s name is Bar Ltd. Because it’s not at risk of becoming a common word for “video game company” or “video game”. *cough*Rebellion*cough*

  21. Daniel says:

    I am a lawyer, and your analysis of the law is spot-on.* Nintendo really doesn’t have a leg to stand on.

    *This is not legal advice. Obviously. Because it’s a comment on a blog post. But still.

  22. Phantos says:

    I would like to point out that the moment Nintendo starting doing illegal, awful shit, people gave them MORE money. Including people who were criticizing them for this stuff in the same breath.

    Before that, when they were doing fine and trying to be the good guys, everyone crapped on the Wii U and the 3DS because they wanted to fit in.

    So we can expect more douchebaggery from Nintendo in the future, because we’ve basically told them with our wallets to stay the course. We actively punished them when they were doing their best, and now we’re rewarding them at their worst.

    Good going, everyone. Really, take a bow. This is why we don’t deserve nice things. I hope Mario Maker was worth it.

    1. Daemian Lucifer says:

      To use Ross’s wording:”The problem with nintendo is that they make some good games”.

    2. Supahewok says:

      Its a fallacy to relate their success with their internet policies. The Wii did gangbusters regardless of whatever they did on the internet at the time, and the 3DS and Wii U were slow starters because of a lack of games for the first couple of years of each. There’s a pretty clear cut showing of how 3DS sales picked up after a price drop and a substantial number of games were released. So far as I am aware, the Wii U is still foundering.

      As I said above, the number of people who actually care about this is miniscule. There are very few people who boycott Nintendo who actually want Nintendo’s games.

    3. Sleeping Dragon says:

      Disclaimer: I don’t care for Mario Maker, I’m only really aware of it because of the Diecast and the ads that a few sites have been spamming at me. I also completely agree that the thing is at the very least a dick move, legality of it aside.

      I’m going to assume you mean Mario Maker sales? To be fair, what are you going to do? Start one of those internet boycotts? Several thousand (I’m being generous) people on the net claiming they won’t buy it, nearly half of them wouldn’t anyway, nearly the other half will anyway. Meanwhile some 90% or more of the customer base don’t even know what a Let’s Play is (much less a speedrun or a ROM) and about 99% of those wouldn’t care if they were told. Bottom line? The whole takedown thing didn’t and wouldn’t affect the Mario Maker sales either way, though someone in the Nintendo offices will probably claim there is a connection and may even, unfortunately, convince the higher ups of that silly notion.

    4. Wide And Nerdy says:

      Unlike EA and Activision, who are also evil, at least at the end of the day Nintendo makes quality well designed games that release bug free and run rock solid. When I buy a first party Nintendo game, I know I can depend on the quality of the design and bug testing. I know I’m going to get my money’s worth when I buy from Nintendo. I can’t say that about anybody else.

      They also make the games the other big studios aren’t making (or at least nearly as much). I like Nintendo’s bright colorful fun aesthetic. Its a nice way change of pace for when the darker atmosphere of a lot of the Western RPGs I like to play starts to wear on me.

      People here are trying to argue that Nintendo is being ungrateful to people who brought them business. To that I say, if thats true, then good. This problem will sort itself out when Nintendo takes a sales hit.

      1. Daemian Lucifer says:

        Well with apologetic fans like that,of course nintendo will continue to do stuff like that.You will always glorify and excuse them,no matter what they pull.Even with stuff thats not true.

        First,there are no bug free games,period(with tetris as maybe the only exception).There are plenty of bugs and glitches in nintendo games,you just didnt find them(but others have).

        Second,its much easier to root out the bugs if you work on just single hardware,as has been shown by numerous other exclusives.So you most definitely can say that you are getting your moneys worth from a game made by other companies that do lot of quality assurance,for example,blizzard.

        Thirdly,when talking about blizzard,fun and colorful is practically the default theyve accepted with wow,and its spinoffs(like heartstone).Sega also has a bunch of games like that.There is also suda51.And a bunch of others.

        And thats not even going into the fact that you are praising them for releasing just the editor,a tool,for the price of a full game.A precedent I sincerely hope will not catch on.

        1. Wide And Nerdy says:

          Being able to count on the quality of what I buy means a lot more to me than whether some dude can upload a video showing off how good he is at Mario.

          I think Nintendo is wrong in this case but they’re right in the most important way.

          1. Daemian Lucifer says:

            Of course,its never a problem when others suffer.

            1. Wide And Nerdy says:

              We’re not talking about a sweatshop here.

  23. TMC_Sherpa says:

    I will freely admit I haven’t read the Escapist article or the comments above but this is Nintendo we’re talking about.
    They’ve had “words” with adult websites over liked game lists and I want to say they had problems with tattoos in pictures but I honestly don’t remember


  24. HeroOfHyla says:

    Were the takedowns actually DMCA filings? Or were they just part of some business agreement between Google and Nintendo? I suspect the latter. If so, there’s not really a law being broken, just Google being proactive in covering its ass because lawsuits are expensive.

    1. Daemian Lucifer says:

      They were dmca filings.However,considering that youtube uses a bot,instead of a person,to process those(which is illegal),and that nintendo most likely used a bot to sniff out those videos,and probably used a bot to send all the dmca notifications(which is also illegal),laws have definitely been broken.Not like anyone cares :(

  25. Daemian Lucifer says:

    The only thing that comes close to generating the amount of comments on @shamusyoung’s blog as Mass Effect is copyright.

    Its not copyright per se,but dmca and drm in general.

    And thats only because he never talks about final fantasy.And because he stopped talking about The Site That Should Not Be Named.

    Also a suggestion for the next Shamus’s escapist article:”How the new revisions to dmca will impact bioware drm in mass effect 4,according to nma”.

  26. Jack V says:

    “Free advertising? Enthusiastic fans? Ugh, don’t get any of it on us!”

  27. The Seed Bismuth says:

    Not to be to nick-picky but the RIAA did try to sue people for sings songs in their showers and Marvel destroyed City of Heroes because you could make characters that looked like theirs, So your examples of things too ridicules for other companies to do doesn’t work very well.

  28. Blastinburn says:

    Nintendo are definitely being stupid and what they are doing is wrong, but I actually want to correct you on one of your points.

    And really, we’re talking about a modified copy of an out-of-print game, which is not being distributed to the public.

    The game is being distributed, through Nintendo’s online eShop:

    I don’t know why no one has pointed this out yet, and it certainly doesn’t excuse Nintendo for their actions, but I would rather fill any holes against fan outrage.

    1. Daemian Lucifer says:

      Because that shop did not exist forever,and there was a large chunk of time when those games were not available for sale at all.Same goes for the means to play them.

      1. xedo says:

        It was out of print for less time than you would think! It was ported to GBA in 2002 and has been available on digital stores since 2007.

  29. Jsor says:

    I feel like what’s going on here is pretty clear:

    Super Mario Maker was coming out and they viewed ROM Hacks as a threat to Super Mario Maker. Let’s face it, while Super Mario Maker is much more user friendly, and has a much better infrastructure for sharing levels with random people, ROM Hacks give you a lot more flexibility and for the low price of free.

    This has very, very little to do with people playing Super Mario for Youtube, or Piracy. This has absolutely everything to do with them wanting to squelch perceived competition to a flagship product they just released. They didn’t want people thinking “why buy Super Mario Maker when I can just download a ROM Hack?” It had nothing to do with PangaeaPanga possibly being a pirate, it had everything to do with PangaeaPanga advertising functionality they didn’t want people knowing about.

    That doesn’t make it okay, it simply makes it more understandable. Also more stupid, because I have to imagine ROM Hackers were probably among the people most excited for Mario Maker. Way to piss off your core audience.

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