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.
 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.
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