Nintendo Is Taking Down My Videos [video]
youtube.com
youtube.com
Nintendo has always been fairly straightforward on this sorta thing if you look at their actions:
1. Don't make them care. Don't draw attention to yourself, just do what you want to do. Relatedly, don't talk to Vice, Polygon, Kotaku or any other authoritative source because then you'll be competing with Nintendo in the press for relevance, and that'll make them upset.
2. No piracy. Nintendo has a very wide definition of piracy, which includes emulation if it has the possibility of being done through piracy (which is most emulation but not most emulation development). Specifically don't do anything that can directly enable piracy, such as dumping ROMs or say... trying to organize a Melee tournament using a Dolphin netplay mod.
3. No money. Money makes things complicated and will make Nintendo care. Just straight up - you're going to need to do it pro bono. If you expect financial benefits of any kind, just go elsewhere.
4. Don't directly compete with Nintendo - no direct sequels or remakes.
Otherwise they'll turn a blind eye. This guy violated point 1 and point 3; tech blogs wrote about him and he put up a financial bounty for it.
(Keep in mind that by a strict interpretation of IP law, everyone making gameplay videos of Nintendo’s games owes Nintendo royalties on revenue from those videos, just as much as musicians that sample other artists’ music owe those musicians royalties on revenue from that music.)
Nintendo spends a lot of money creating that content and we like that. That’s why we have created a framework that allows them to make money out of that investment. We limit your right to do whatever you want so they can make money.
No I was talking first about the rights to emulation, romhacks and mods.
Those are perfectly legal right now, there's no ambiguity, whatever Nintendo thinks on this subject doesn't matter and their opinion doesn't have any value.
> Nintendo spends a lot of money creating that content and we like that. That’s why we have created a framework that allows them to make money out of that investment. We limit your right to do whatever you want so they can make money.
I'm sure Nintendo is doing fine financially selling those games, you don't need to worry about that.
Is making a video about sneakers "use of Nike's IP"?
What if they've been dyed to be the same color as a much more expensive limited edition?
Is making a video about driving a Corvette through some picturesque mountain roads "use of Chevy's IP"?
What if that Corvette has a custom supercharger kit, installed at a fraction of the cost of a factory-supercharged Corvette?
Example: a 30-second sample of footage from a movie is Fair Use in an educational or journalistic context; while a five-minute long sample is not, no matter the context. (Have you ever thought about why TV shows about movies only use tiny clips of the movie, even if the point would be much better made showing the full scene? It’s because they have no valid Fair Use defence to using clips that long, and so would have to pay for the rights — which they don’t want to do.)
Obviously, a YouTube upload of a movie substitutes for buying that movie.
Less obviously, but still overwhelmingly proven, a YouTube upload of “the Phantom Cut” substitutes for purchasing The Phantom Menace.
And here’s a specific precedent you can look up: RiffTrax were never legally allowed to distribute the (copyrighted) movies they dubbed over with comedic commentary, just because their derivative work was transformative. A work thus combined would still substitute for the original movie. When they did MST3K, that was all public-domain movies; and when they did RiffTrax records, those were like ROM IPS patches, not containing the original IP but instead intended to be combined with it by the end-user (“simultaneous play”.)
A LongPlay of a JRPG likely provides all the “game” that many people want when they buy a JRPG. As this is done using the copyrighted assets of the game (dialogue, etc), a LongPlay is legally a substitute for the game.
To be clear, that’s not the point here, as sampling is an easier-to-satisfy criterion than direct substitutability is. But substitutability is a useful model for understanding sampling.
If a remix or radio edit is a substitute for the original song, then a song that uses 30% of another song as samples, could be said to be 30% a substitute. (This isn’t actually why, but this is a useful intuition that allows you to predict the law.) So you still owe royalties.
Now: how is a video of a speed run, or a commentated Let’s Play of a game, different from one song sampling another song, in a way that is in itself different from the way that a LongPlay is a substitutable good for a game, taken through the lens of sampling one work to create a derivative work?
What's legal (in the US - in Europe, almost everything that doesn't directly enable piracy, so pretty much stopping short of allowing flashcards is legal thanks to a decision made in 2011) is building an emulator and making a cheating device for a game console. Otherwise there's no precedent for this (and game companies are reluctant to set one considering the previous times they tried to get one, it blew up in their faces) and the laws do lean in favor of the game publishers.
Modern console modding involves both reverse engineering (something with only an interoperability exemption in the DMCA under fairly heavy conditions surrounding scope and not publishing your findings) and bypassing Technical Protection Measures (the laws term for any form of DRM, regardless of effectiveness - your DRM doesn't need to be good to be protected, it just needs to exist and you need a good legal team - this is how Spotify's security works btw), which is almost entirely illegal in the US unless you're either a registered library (which is pretty much the only preservation entity acknowledged by US copyright law) or need to do it to enable interoperability (under the same conditions as the reverse engineering restrictions, so no sharing your findings).
Post-scriptum: I am not a lawyer, least of all a US one, speak to your actual lawyer for legal advice.
For breaking the protections in place indeed it's a bit different since it depends of your area, in the EU there's some interoperability exceptions which will cover breaking any DRM.
You might not need to break any of those protections for an old system though anyways, you can perfectly dump a SNES cartrige and there's no DRM preventing you to do that, you only need breaking DRM to run it on the actual console.
Game companies haven't sued mostly because whenever it happens in a legal gray area (which is where romhacks and mods are - and a legal gray area is illegal if you don't want to retain a lawyer), they ended up getting blasted by their competitors (who often already do the same thing) in court.
It's worth looking into the game industry's legal cases (or hell, look at the Sony complaints about the Microsoft takeover of ActiBliz) - the industry is more than glad to try and legally kneecap a competitor if they can get it through on a precedent. Almost funny really. SEGA did the same thing back in the 90s.
I wasn't talking about SNES romhacks either (I said modern). Pretty much any system from the turn of the millennium onwards (which is the majority of systems nowadays) uses something comparable to a TPM, which means breaking them is needed and therefore, it's illegal.
That's not how any of that works though, otherwise you couldn't even write an article about Nintendo themselves without their approval.
Romhacks do not distribute any of the original content but are distributed with patches anyways.
> Game companies haven't sued mostly because whenever it happens in a legal gray area (which is where romhacks and mods are - and a legal gray area is illegal if you don't want to retain a lawyer), they ended up getting blasted by their competitors (who often already do the same thing) in court.
They don't sue because they know they will lose basically and losing would create a precedent.
> I wasn't talking about SNES romhacks either. Pretty much any system from the turn of the millennium onwards (which is the majority of systems nowadays) uses something comparable to a TPM, which means breaking them is needed and therefore, it's illegal.
Depends where, in the US for sure, in the EU you have interoperability exceptions which means breaking up any kind of DRM preventing interoperability (so pretty much all of them by definition) is legal.
You don't need to break any protections to dump most the old system games anyways either so that doesn't apply for old games even in the US.
Articles and news coverage are protected by fair use, which is an affirmative defense, not a right.
Game mods and ROMhacks almost certainly do not fall under fair use, they're derivative works.
Copyright in the US includes exclusive right to prepare derivative works. Just preparing, even if not distributed, without permission is a copyright violation.
A meaningful romhack is pretty obviously a derivative work. Even if one could convince a jury that the patch file itself was not, it would not matter, as the author obviously created the patched work first, in order to create the patch file.
Now, this prohibiting of non-copying of production of derivitive works is probably a mistake. It would be far more sensible to allow such creations, but only if no new copy is made and only if other exclusive rights (like public performance) are not used with respect to the derived work. But the law as written would certainly seem to prohibit romhacks.
The courts have been fairly inconsistent in rulings about derivatives that have not actually copied the work or its elements. There having been rulings that cutting pages out of a book and mounting them in ceramic tiles or even picture frames are infringing. (And other rulings that essentially identical cases are not infringing). Making baby bedding with purchased fabric with a copyrighted design is fine. Installing an alternate circuit board for a video game that speeds up gameplay is no good (Midway v. Artic), but an external device that does the same thing is fine (Galoob v. Nintendo).
The main reason Nintendo of America seldom goes after people who make or distribute romhacks as patch files is not because they can't.I strongly suspect it is a mixture of it not being sufficiently clear cut that they would win (and they don't want the precedent if they lose).
Its also possible that there is some other reason. Perhaps NCL is reluctant to let NoA do that for some reason. (Which would seem weird, as if anything NCL's mindset would be very strongly opposed to ROM hacks.) But more likely it is the other way around. NCL would probably like NoA to go after such sites, but NoA is probably more reluctant to do so.
Nintendo of America certainly knows about sites like SMW Central, romhacking.net, etc. Those site do get ocassional visits from NoA ip addresses. NoA have to know they could most likely shut them down with a single threatening letter, especially since they are making no money (not even running ads). But they don't.
NoA seems actively reluctant to go after people who are not distributing raw roms (a.k.a. piracy), and are not making money, unless the project becomes really high profile (since it could cause marketplace confusion, trademark dilution, etc), or the project is likely to be confusing in light of something they are working on (See AM2R vs the 3DS remake).
All the nonsense they have pulled with Streamers and YouTubers stem in part from the fact that those people do make money from using Nintendo content. The stuff they have pull with tournaments stems at least in part from tounament sponsors finally benefitting from running them. Etc.
It is not. Telling someone how to run a process on a work to transform it is not breaching copyright in any way. If the person how transforms the work then distributes it, they will have a problem. But the person who told them how to transform it would not.
"They don't sue because they know they will lose basically and losing would create a precedent."
I disagree completely that they would obviously lose. I think you're applying some combination of logic and wishful thinking to a situation where neither apply. The only logical conclusion I can come to about this situation over the past nearly 25 years is that they haven't codified anything because the current murkiness suits them just fine. There has been plenty of time to push a law through Congress that reifies that you're not allowed to make any modifications, but why bother with that expense when they can pretty much harass anyone they like at any time about it right now. What third-party mod provider has the wherewithal and desire to go toe-to-toe with a multinational behemoth so they can distribute their alternate Mario Kart courses or something? A C&D shuts down any sane person now, and a DMCA report takes out the vast majority of the rest. There's not a lot of need for them to established a precedent, and establishing a court precedent on this matter has been complicated by the inability and/or disinterest of anyone on the receiving end to take this through multiple levels of court, all the while incurring personal risk if they lose and only highly socialized benefits if they win (as they will most assuredly still be deeply into the net negative both in terms of money and stress). It's easy to wish someone else would take them up to the Supreme Court and establish that it's perfectly legal to mod games, to distribute the mods, and the game companies aren't allowed to prevent it, but the list of people willing to do it themselves has been pretty short.
This means you can't rip an audio CD, DVD, or bluray, even if you don't have to bypass DRM to do it.
I'd expect this translates to even dumping your own ROMs/ISOs from cartridges or discs you own, too.
A huge chunk of the population ignores this, but it's another fun thing for Nintendo et al to hit you with, if they so desire.
In the US, something has to explicitly be made legal to be permitted. There has to be a law saying you have the right to do something.
In the UK, something has to be specifically forbidden by law, and even then it's very unlikely that such a law will ever be enforced unless you're really making a nuisance of yourself.
In practice that's not something I'd bet my not-being-in-jail on in either country. Whatever foundation of "anything not forbidden is permitted" has been crusted up with so many layers of governmental power grab that whatever the theory may be, the practice is that if it is not explicitly permitted it is forbidden, and the only reason things not explicitly permitted are allowed is because they just don't happen to make a fuss about it today.
Well that's just flat-out incorrect.
This makes fair use an affirmative defense, which is default risky because the process starts with somebody accusing you of wrongdoing (potentially criminal wrongdoing).
Indeed more so, the UK has nothing as wide ranging as US Fair Use, just a much more narrow list of permitted allowances.
One of the reasons that some members were opposed to the bill of rights was because they were afraid that the population would take it as a defining list of things they were allowed to do, as opposed to the stated: "The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Yes they do. They're derivative works. All Berne convention signatories recognize this.
Another content creator is getting takedown requests for vanilla gameplay [0]. PointCrow also mentions takedown requests for other videos that have nothing to do with the modded multiplayer video. Nintendo has terms for this type of content, allowing usage that they're now issuing takedown requests for [1].
Maybe the bounty for the mod, or maybe it's just mods in general, that got Nintendo's attention but they're trampling over the creators other work, which looks like a bullying tactic.
[0] https://www.youtube.com/watch?v=FSZYpDk9Xm8&t=163s
[1] https://www.nintendo.co.jp/networkservice_guideline/en/index...
If you want to change that, don't complain to Nintendo, complain to your representatives who made the system that way to begin with. Nintendo has the rights at the moment, while you, the consumer, don't.
Ah yes. That should do the trick.
I complain with my voice and vote but BigCorps will complain with their dollars, which will buy more than just a handful of votes.
It's not exactly correct to say dollars = votes, but it's about as close to correct as saying we live in a democracy.
That's not how law works.
Copyright does have limits.
You may notice how when cars are used in commercials they generally have their logos removed. Likewise when someone wears a shirt with a designer logo or graphic design on TV it'll often be blurred. The line is fuzzy but at least the professional media production world seems to have agreed it's somewhere around there.
In some limited circumstances a company might be able to sue over the use copyright in another work but for the most part fair use would protect them.
The reason they remove the logos today is primarily to extort money from brands not fear over copyright
Some US district court ruled that cars could not be copyrighted (although this did reverse a previous decision).
I think the major distinction is that the car isn't actually a character in the film (and the previous decision was because the rights holders disingenuously indicated that the car was a character in the movie and the court didn't double check that this was in fact the case iirc).
Incorrect, or at the very least studios disagree with you, as they act as if the opposite is true. I'm going to trust their (and their lawyers') judgement over that of yours.
For example, Apple is infamously controlling about use of its products by villains in media, and studios listen to them: https://www.cnbc.com/2020/02/26/apple-wont-let-bad-guys-use-...
Apple could be paying studio's to keep the products away from villain, Apple could be supplying devices or other services for free as a condition if they agree to those terms, Apple itself is a production company so directors and other people in the industry could be voluntary agreeing to it for their own professional reasons...
I have not read a single legal expert that claims Apple could successfully sue a studio for copyright or even trademark infringement if a bad guy was using an iPhone in a movie.
I really object to the phrasing of copyright law as "you don't have a right to make money off of other people." That's turning copyright law into something much, much broader than it actually is.
I get that this might seem like a trivial or nitpicky distinction, but if you're familiar with Doctorow's writings around concepts like "felony contempt of business model", there is (I believe) an uncoordinated but persistent effort towards rephrasing copyright as if its purpose is to enshrine some fundamental right for a business to make money and to control who can make money around them. And it's a really insidious expansion of what copyright actually protects.
If people aren't violating an actual copyright (which, we can debate if lets plays do), they are in fact allowed to make money off of your stuff, and the fact that your stuff enabled them to make money does not automatically obligate them to compensate you. Not everything that allows someone to profit off of another person's business is a copyright violation.
Copyright, trademark, IP in general, there's a 9.0 magnitude earthquake coming.
Within the pokemon romhack community, people have tried figuring out a similar set of "unofficial guidelines", that generally reflect your list to a T. However, there's enough examples of "random" takedowns[1] and I know at least one person who got a seemingly random C&D for an unpublished romhack, whose takedown never reached the public ear. I'm sure there's many similar cases.
The list is good advice for staying off any company's IP protection radar, but "random" takedowns are often tip-offs from an aggrieved community member, competitor, or bitter ex.
> Specifically don't do anything that can directly enable piracy, such as dumping ROMs or say... trying to organize a Melee tournament using a Dolphin netplay mod.
No offense meant towards you specifically, but if that's Nintendo's mindset then that's complete crap. ROM dumping is not a crime or YouTube content violation, nor is using one for a network tournament.
Imagine a book publisher shutting down a book club on YouTube for discussing their books and sharing excerpts. Most reasonable people would find that absurd even if the law or any user agreement supported the publisher.
Unfortunately, Nintendo does not care what you think, does not care how this hurts their image, and does not care what damage this causes to the emulated longevity of their games lasting longer than the hardware they sell currently.
It is in their financial interests to force everyone to always pay for and buy Nintendo hardware to perpetually keep having to upgrade and purchase new copies of their software from their online stores to keep playing old games.
This is how they do business and by having articles, news, and social media posts constantly crying about how Nintendo did them wrong, it helps ensure that the average person keeps toeing the Nintendo line instead of exploring emulation. If a non-tech savvy person hears "Nintendo sued a guy for using emulation on his game meetup" they'll think, "eh, I think I'll just buy a Switch and not bother with emulation" when they want to play Yoshi's Island because nostalgia hit them in the feels.
This whole thing is a song and dance to keep people buying real Nintendo hardware (or choosing to use already owned Nintendo hardware) to play games they could just emulate with a few quick downloads. It's why you see "Top 5 retro games you can buy on Nintendo eShop before it's gone" articles on Polygon and elsewhere every year. It's a whole schtick to get you to keep handing Nintendo money for a game you've likely already bought and paid for at least once in your life.
Once again, I don't agree with Nintendo's stance, but boy oh boy is it ever profitable for them.
I'm in a minority where Nintendo's actions, on top of a selection of games that I find pretty lackluster, have caused me to give up on them and refuse them another shiny nickel. Attacking fans, IMO, is a no-no. Attacking the abandonware community is especially unacceptable. One can enjoy their games, but I don't get why people defend their being so draconian, given that any loss of revenue they claim over things like game walkthroughs is dubious, to say the least.
I feel like a lot of folks are kind of ignorant to what Nintendo is doing. I don't like these draconian practices, so I try and inform others of the BS as much as I can in hopes that more people will become vocal and stop silently supporting it.
Or (which is me) " I think I will just buy a SteamDeck and not bother with Nintendo at all"
There is a reason why they are always number 3.... People tire of their BS.
They could be #1 if they would get out of their own way
It might be worth noting that the Switch is still selling better than the Xbox, so they're technically #2:
Total PS4 and PS5 sales: 149.7 million
Total Switch sales: 122.3 million
Total Xbox One + Xbox One X Sales: 70.5 million
When you pair that with the fact the Switch has sold over 900 million in game sales... well, unfortunately, Nintendo has a long way to fall before they have to wake up and change their tact.
Not a crime as such, but how does one dump a ROM without making copy, and how does one get the right to make copies if Nintendo won't license you the content? It's fine to make an policy argument about the the law aught to be, but you can't just ignore what it is.
The reason making a single copy for personal use is generally considered permissible is because: (1) it may be fair use under 17 USC 107, (2) the copyright owner will probably never find out, and (3) even if the copyright owner found out it probably won’t sue over one copy.
https://www.gov.uk/government/news/quashing-of-private-copyi...
Personal copies are legal... Just like I can take a patent, build the thing and use it myself, I just can not make commercial product and sell it.
This is why I am not aware of anyone ever being sue or otherwise held to account for DOWNLOADING copyrighted works. They always Sue over DISTRIBUTION. BitTorrent got the tag of "Sued for downloading" but in reality people were sued for seeding, ie distributing. I am not aware of any leecher that was sued.
Similar of Usenet, Uploaders, and usenet providers get sued, but downloaders?
The entire point of copyright is about preventing unauthorized distribution,
So you must have missed all the filesharing lawsuits over the last 25 years. Lots of people got sued for just downloading, not seeding, just downloading.
Copyright is primarily about copying.
https://www.law.cornell.edu/uscode/text/17/106
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords;
Depends on the territory.
It is definitely not legal in the UK for example.
Maybe we should just lie back and think of the mushroom kingdom?
Counterpoint: maybe none of the people they have drama with are their core customers. Nintendo seems to have a similar "Disney Adult" problem as Disney where you have a population of vocal adults who think they are the core customer, but in reality the company moved on to selling to those people's children or grandchildren years ago.
They essentially put an advertisement of how much they suck in place of a free ad space they were given.
Is he though? Looking about his top videos, I see lots of "pro gaming" or speedruns, so I circle back to my earlier question of who is their core audience? I suspect this kind of content doesn't move the needle on units sold very much.
I'm not saying he's bringing in their core demographics. Just that he makes some sales for them.
But, the behavior of The Tetris Company is it's own bag of worms, and an even more agitating one than Nintendo. If anyone was looking for an example of how to be worse, I think TTC may very well have the formula down.
Pointcrow isn't, currently, one of those guys that plays just one game forever or even one game mostly. He's a 'variety streamer', he does have a pretty firm focus on nintendo games both classic and new but that isn't his whole ouvre.
Nintendo hates those. Look at how they treated the Smash community. It shocked me and I don't even like those games. Nintendo sucks and doesn't deserve anyone's money. Don't even try to understand them or their motives, sucking is just a part of their DNA.
https://i.imgur.com/oAROhEq.png
The truth is, even though I don't play video games much at all any more, I played this game when I was younger and kept a pulse on it since, so I know when a character matchup is bad, and I can recognize difficult techniques like ledge dashing or amsah teching. But, I argue as well that even though it's silly and even though you may not be able to pick out all of the ridiculous high-level play going on in a match, the energy of competitive gaming is simply infectious. It's hard to pick just one video, but maybe something here will resonate with folks unfamiliar. Is it a little silly? Yes, definitely. But the energy is infectious. It draws me in.
https://www.youtube.com/watch?v=Im68s2z0AAY
The newest game in the series, Super Smash Bros Ultimate, has a commendable competitive scene, even though Nintendo has kind of nerfed a lot of the things that made Melee so competitively interesting later on in the series (ledge hogging, wave dashing, ...) and focused more on making a party game.
People keep playing Melee though, with tournaments going on pretty much all the time (and getting shut down all the time, too), even though they usually have to run at a financial loss, for the love of the sport, as lacking official blessing, it is hard to attract advertisers and sponsors. But seriously, just take a look at what they've done with Slippi.gg: They've essentially taken this old game and added rollback netcode and matchmaking to it. It's not exactly unheard of amount of dedication, but I find it very impressive nonetheless.
When I look at what happened to this scene, I can't help but feel there is a lot of missed opportunity any way you slice it. But maybe, I'm just out of touch and nostalgic.
Considering the stable sales of Nintendo products, this still seems to work despite Nintendo policing content for many years now.
So despite smaller blips like this one, one might argue that they're actually quite good in curating the content they want to use for marketing...
That angle actually pushed me closer to Nintendo's reasoning. If people buy games because they see them on these streams, what's the likely buying decision from seeing a super cool new feature for Breath of the Wild that only works on emulator? I'd wager that it increases the likelihood of getting a Steamdeck instead of a Switch and playing the emulated version instead. That seems like an occurrence that Nintendo wants less of.
But of course, Nintendo did kind of start to figure this out; they actually started implementing similar value-adds like multiplayer and save states into their own emulation suites for retro consoles. I think this is good, since you're essentially asking people to buy the same thing again (maybe thrice or more if you're a die hard Nintendo fan who has followed the console lineage since they started doing re-releases like this, back on the Wii and 3DS.); you may as well provide some value-adds.
But, maybe they can't do anything about modding, because nobody has figured that out? Well... except for Valve, who has apparently figured that out. And maybe even SEGA arguably, who also has figured that out, too, considering they have third-party ROM hacks on Steam Workshop.
¯\_(ツ)_/¯
Of course, I think Nintendo's heritage, history, etc. makes it clear that it would be unlikely for them, any time soon, to take pages out of anyone else's book. Obviously, Valve is just a very different company, and PC gaming is a very different market. I think, though, that a lot of people believe it would be damaging to Nintendo's brand and lose them money if they were more open and fostered this sort of thing, but I think it's hyperbole, I don't see it. In all likelihood, if Nintendo keeps making great video games, people will probably keep buying them, even begrudgingly, just like many people do today, regardless of whether they're dicks to people or they're not.
Stubbornness can be good sometimes, but it definitely leads people and entities to pick fights that are pretty much unwinnable. Eventually, they're going to have to find the line.
(P.S.: I do actually agree though that there is truth, 100%, to the idea that piracy could substantially hurt sales; I think Nintendo is the only company to have experienced tangible evidence of this, with the Nintendo DS and readily available R4 flash cartridge. THAT SAID: If you don't buy a Nintendo Switch and Nintendo Switch cartridges, you can't play online; the console and cartridges/downloaded games have unique IDs online, AFAIK. I think that this is probably effective anti-piracy. Sure, people COULD pirate a single player game from Nintendo, but getting a Steam Deck instead of a Switch seems unlikely; If you're a Nintendo fan, you are not going to get as much value out of running a Steam Deck with emulators. I posit that the majority of people will wind up buying the game, but some of them may also play around with emulation, too. If people really just didn't want to pay for Zelda, a TON of Switch consoles that have the hardware exploit can use the RCM exploit and probably run pirated copies on the real thing with third party modified firmware. The truth is, if backlash from these videos isn't enough to harm their sales, and clearly it isn't, then I suspect the reach of these creators just isn't enough to matter in the first place.)
You also clearly didn't watch the video. A youtuber shows a modded game being run on an emulator, he's adhering to publicly posted policies on what they consider to be fair use, Nintendo went out of their way to be retaliatory (issuing two separate copyright strikes instead of one, and then when he emailed them asking to resolve the situation, did not respond but instead issues dozens more takedowns...including one of him just playing the regular, unmodded game.)
If you want to see extreme examples of this: "ag-gag" laws in the midwest states where there are criminal penalties for disseminating video from slaughter houses that counters the industry's marketing efforts that portray the process as humane and painless, when the process is neither, and in fact employees go out of their way to be abusive to the animals.
Individual free speech is critical to balance the incredible power corporations now have, especially post Citizens United.
What's next? Car companies being able to take down car review videos where the reviewer doesn't tow the line? Or someone is using their car in a way the car company doesn't like? Or modding it to have more power? Or using a scan tool to turn on a feature it didn't come programmed to do originally? Taking down news videos where someone uses a dorF G-350 pickup truck to ram a bunch of pedestrians, because it might look bad for their company?
Even if this is true, though, I am pretty sure that videos on topics like "Breath of the Wild multiplayer" absolutely appeal to Nintendo consumers, even younger ones. Thinking about all of the schoolyard banter and rumors about video games, I can only imagine how crazy it is that these days, some of the wild "what if?" scenarios are actually made true by skilled, motivated fans. I do not play many video games these days, so admittedly it is hard for me to be sure. However, I have seen the way that kids respond to this DMCA garbage, and I have never gotten any impression other than that it feels like a great injustice and an unfortunate reality.
If Nintendo really didn't care about the demographic of these videos, then it truly begs the question why they care so much to suppress it. They also were doing the same thing when it came to videos of Switch games running on the Valve Steam Deck.
Clearly, they have some motivated interest.
I think this is deceiving. Sure, in terms of raw numbers there are a good number of adult gamers. But I'd like to see this statistic play-time-weighted.
This, however, is a completely different problem that has nothing to do with the products themselves, it's Nintendo's legal team showing absolutely no mercy towards their own content creators, which also includes teenagers, for very little gain... Which is a damn shame, because the work these content creators do is amazing. Instead of sending C&Ds and squandering that potential, Nintendo should work with these people.
A lot of this gains them nothing other than resentment.
I think it's not apparent that Nintendo actually has to behave this way. There is a general notion that other game developers fall elsewhere on the spectrum, with SEGA falling on the more permissive end (though notably, they are not free of drama from DMCA takedowns, but they have a much better reputation of being lax, working with fans, and generally just having better PR overall. I did receive a DMCA takedown request from SEGA once, and yet I can attest to this all still.)
https://i.kinja-img.com/gawker-media/image/upload/s--W8ZYHe9...
The hate is worthless in Nintendo's eyes: All that matters is whether or not they'll keep buying <Insert Nintendo product here>. And for most people, they'll continue to buy 'em.
Unless their revenue significantly suffers, it will be business as usual.
But I feel like they took this kind of play from the Sony playbook.
It changes nothing. It’s not a nightmare. It’s not even problematic for them.
Of course, nobody is suggesting that Nintendo is going to go bankrupt because they were mean to some YouTubers who ostensibly didn't do anything wrong, but just because there's no easy way to quantify the impact does not mean it will never matter. It does matter.
I promise you, they are not sitting there thinking "Alright yeah! A bunch of people are really pissed off at us! High fives all around, this is exactly what we aim to do here at Nintendo!"
Despite that, there could be a handful of people with influential roles in the company who consider this to be a part of doing business. To your point, those same people would likely still know about this situation (rather, the general situation around copyright / marketing) and understand why they make the decisions they make while still being genuinely concerned with the trade-offs. To your parent commenter's point, that doesn't mean this is any sort of crisis (or "nightmare") to the most influential decision-makers at Nintendo; it's just part of their job.
I disagree that it is a complete non-issue, though.
It just doesn’t matter.
Google’s reputation does matter. Because you’re giving them data and relying on their services. If they cancel that service or do something bad with your data you are gonna have a bad time.
If Nintendo shuts down a streamer… whatever. Doesn’t affect 99.99999% of customers. Or employees.
For example, not a game I really have any interest in, but I know Hogwarts Legacy had possibly the strongest backlash I've seen in recent memory and yet it sold gangbusters according to media. Then there's Electronic Arts and Activision Blizzard, who are definitely becoming some of the most hated game developers in the industry, and yet, they seem to be doing just fine.
Nintendo is a beloved company in spite of these antics, so I don't ever expect it to matter more for them. I still challenge the notion that this PR backlash doesn't have any cost and will never have more cost. Probably the largest immediate issue with PR backlash like this is simply that it hurts employee morale.
Does it really not matter? Well, speaking of Super Smash Bros, they pretty much killed the Panda Cup and most of the rest of the official events with their antics, and probably guaranteed that the SSBM community will never touch Nintendo sanctioned anything again. Not surprising, really, given that's pretty much how it always has been with them, but on the other hand, isn't it kind of crazy? Nintendo barely has any official competitive tournaments, even though they have at least a couple of games with decently big community scenes world-wide. Compare any other fighting game or even just other large franchises like Fortnite and I can't help like they blew many potential opportunities that could've provided value in at least O(millions) of dollars.
My main problem with Nintendo is that their game systems are too difficult for young children to actually use.
It is putting the livelihoods of those content creators in danger. Apparently the creator in question (PointCrow) hasn't heard anything back from Nintendo after contacting them about the issue.
I feel like this is yet another example of a large company acting in a way that hurts both their customers and themselves. I don't think it costs them anything to allow the creators to make that kind of content; rather it will make people more aware of their games, potentially increasing sales. The most prominent of these creators will now be very wary of posting content about the upcoming Zelda Tears of the Kingdom game which will most certainly hurt initial sales of the game.
If Nintendo has shown to be hostile towards their own userbase, then really the only complaints should be about existing content. If creators keep paying for Nintendo games and content now that they've seen how they act, then the creators bear a substantial amount of blame going forward.
It's like telling Apple developers who complain about Apple's bad developer relations to move to a different platform. I don't blame developers (or users) for these issues because I completely understand not wanting to transition your whole life and career to a different platform that you might enjoy less.
Isn’t that just part of the risk you accept by doing that kind of job? Every job has some risks attached to it and this is not unusual behavior for Nintendo.
This is pretty specifically a Nintendo thing. Sony, MS, and pretty much every major game studio are fine with people streaming content of their game, even mods. Hell, it usually ends up being the opposite--game studios offer 6 or 7 figure deals to popular streamers to play their game as marketing play. Worked for Apex Legends.
Nintendo has always been really, really aggressive about this, to the point where it doesn't make sense. They've aggressively cracked down on fan projects (e.g. AM2R) which is at least arguably justifiable from a copyright/IP perspective. But they've also threatened to take down any speedrun video with a Nintendo game in it. And they had a major row with EVO about whether Smash could even be played at the tournament a few years back; during a time when companies were throwing tens of millions of dollars to get into the esports scene, Nintendo was refusing a handout on a golden platter.
It used to be very much a Japanese game developer mentality (Sony excluded) to strike or at last claim gameplay videos. SEGA used to pull this all the time two back in the day, and still do for certain elements of games, like cutscenes in certain games like Persona (Atlus is a subsidiary).
Nintendo just never stopped like you've articulated really well. They seem to hate that their most avid fans show how much love they have for their IPs.
As in, they searched Shining Force and send DMCA strikes to every single video they could find. They only backtracked after they got a literal metric fuckton of negative press due to it.
If you call them first for a profit sharing scheme, only then sometimes some cares, but still it's more for the scheme.
The E-sports scene is kinda awful, to be honest. Historically, Nintendo has been interested in making fun and interesting toys for people to play with. E-sports people are usually VERY SERIOUS about what they do, and often VERY PARTICULAR about how games work, and VERY VOCAL about changes to a game that radically changes how they've become accustomed to playing the game.
Catering to money-making E-sports is generally incompatible with making fun and interesting toys... they're just two radically different and largely incompatible audiences.
This is incorrect, and I think you're maybe missing some context. What is being referred to here isn't esports players being whiny or particular about changing a game in a way that would hurt casual users. What's happened a few times recently is that Nintendo were very heavy handed in cracking down on things like Smash Brothers e-sports tournaments: https://www.theverge.com/2022/11/30/23485811/nintendo-smash-...
So here they have already made a game that is beloved by both casual players and professional players, and they seem really keen on cracking down on the latter group. They don't need to take any special steps to cater to e-sports players or tournaments, they just needed to not go out of their way to crack down on them.
Completely incompatible? No, and that's not what I said. In any sufficiently-large group there will be exceptions to that group's general tendencies.
Were I Nintendo, I would definitely take pains to put a big damper on people and organizations who wanted to do "professional" E-sports to my toys... which seems to me to be exactly what they're doing.
Look I get that e-sports isn't for everyone, it's certainly not for me. But this doesn't make sense, and I suspect that this push against e-sports or modding isn't coming from the creative minds behind the games themselves, but by management who couldn't care less about whether something is or is not a toy. It's the people who just want to see black on their end of year balance sheets and don't understand how e-sports or modding would impact that (including how it could even improve it)
No. You misunderstood what I've been saying since the first paragraph of my initial post.
I've been consistently saying that the E-sports is kinda awful, and that that scene is generally at odds with the sort of folks who like playing with fun and interesting toys.
Once the E-sports locusts solidly descend on something, its nature gets changed (by association, at minimum). Nintendo clearly (and correctly) doesn't want that, so they're right to discourage it.
They're a "fun and interesting toy" company, not a "professional, competitive e-sports games" company.
E-sports leagues want the tool to be consistent across the years, and want to make sure their top players are able to maintain their elite status for the headlines and press they get. Games that cater to e-sports leagues tend to be come very much about power players; fun is secondary to winning.
That is incompatible with a company that seems to want to make fun things for a family to play, like Nintendo.
Copyright striking everything is one issue, but not wanting to bend over backwards for e-sports is a different thing entirely; and I think it makes sense for a massive company like Nintendo.
Yes, because sibling rivalry and intense competition among family simply never happens. It's always just a fun time where everybody is a winner. Except for the fact that games like Smash Bros, Mario Kart, Mario Party, Wii Sports, etc will literally call out the winners and the losers of the tournament/match/game.
This argument makes no sense whatsoever. Plenty of people like to play Football, Baseball, Basketball, insert sport here for fun. That doesn't change the fact that there are paid professional leagues that take it to the next level. And the reason the professionals get paid is because other people, even sometimes those casual players, enjoy watching professionals play their favorite game at a superb level of skill.
> Copyright striking everything is one issue, but not wanting to bend over backwards for e-sports is a different thing entirely;
You and OP keep saying this. Please tell me what restrictions e-Sports players are trying to place on Nintendo? In this specific instance, SWT was literally playing one game that is 22 years old and that Nintendo does not even sell anymore (afaict you can't purchase Smash Melee from Nintendo). The other game was released 5 years ago, and the e-Sports scene wasn't demanding that Nintendo stop making updates or something afaik.
And, just as an aside, I don't give a crap about e-Sports. But the e-Sports scene certainly hasn't detracted from my enjoyment of playing smash with my brothers for fun and for competitive fun.
Yes this is what's so bizarre! You and I are disconnected from that scene altogether (I don't even like Smash!), we don't have any vested interests and yet we can both see that it's really weird behaviour from Nintendo. We can only guess what's going on, tbh it's such a spectacularly wealthy company they can get up to plenty of dumb things without ever really noticing the impact on their bottom line.
You say they needn't "bend over backwards for e-sports" but that's not what's happening. Maybe players would prefer the consistency you describe, maybe they even ask for it ... but more than anything they just want the ability to play. As it stands Nintendo are being pretty petty and are bending over backwards to fuck with them, when they could instead just ... not.
Nintendo has a history of hosting competitive tournaments for games such as Pokemon (and even in a limited capacity Smash Bros). They even made a Pokemon game targeted at competitive players called Pokemon Unite, which they continue to organise tournaments for.
For Smash Bros in particular, they partnered with an e-sports company called Panda Global to officially sanction a circuit last year.
However, their awful track record with e-sports comes from mercilessly shutting down events they are not involved with (even when the organisers have reached out to Nintendo in good faith to discuss their involvment). They even go out of their way to dish out cease-and-desists at the last minute so that organisers don't have time to consider their legal options and rights before going ahead with the event.
There was a big scandal last year when Nintendo were having positive discussions about a partnership with a circuit called Smash World Tour then turned around and proceeded to threaten them just as the end of year finals were about to take place, forcing them to cancel an event that had been over a year in the making, and involving many professional players, hired staff and a lot of money (they could have just let them continue without being involved).
And just as a clarification, almost all these Smash events are not organised for profit by your big bad e-sports companies. Due to Nintendo's actions they have been mostly organically grown community-led efforts, all they want to do at the end of the day is have fun and play the game together.
Nintendo have shown time and again they will abuse their status as a big corporate entity to destroy harmless fan activity if they are not happy about it for any reason.
So just because you have a disdain for something in particular, you shouldn't project that onto a situation and use it as a false explanation for what's happening.
Eh, that _might_ hurt initial sales of the game.
Or it might promote sales of the game, given that prominent video game streamers won't be streaming it, so it'll be more difficult to "play" the game by watching someone else play it. I know that I've not purchased many games that I otherwise would have (and would have had a good time with) because I watched someone's recorded gameplay video.
I, on the other hand, never purchase a game without watching gameplay footage, and have bought games I've watched people play, that I ended up never playing, or playing for only a couple of hours.
Good promotional materials provide lots of gameplay footage, and Nintendo's definitely a company that I'd trust to not misrepresent the nature of their games and toys in the promotional materials.
Regardless, I'm quite aware that there are variety of folks out there with a variety of purchasing habits. I was responding in large part to the absolutist, histrionic statements made by the OP:
> It is putting the livelihoods of those content creators in danger ... I feel like this is yet another example of a large company acting in a way that hurts both their customers and themselves. I don't think it costs them anything to allow the creators to make that kind of content; rather it will make people more aware of their games[.] [These actions] will most certainly hurt initial sales of the game.
(It's almost as if OP isn't aware that Nintendo, the Nintendo Switch, and Zelda are -among households that play video games- household names, and that Nintendo has a _substantially capable_ marketing and audience surveying department.)
I concur that 1) we can't say for sure what effect it would have on sales if prominent content creators did not cover the game, and 2) even if there's a negative impact on sales, it could be negligibly small.
However, I'm still convinced that having big content creators cover your new game release would not hurt sales, and I'm also convinced that Nintendo has nothing to gain from these actions in terms of money or reputation. Even if it only ever reaches a small minority of people right now, I believe that they are damaging their reputation and lose trust, not only with content creators, but with the players as well. And that's just sad.
Twitch streamers can generally go pound sand. Most of the professional streamers that I'm aware of are all cut from just about the same mold... and I _get it_ -- most of them are running a business that depends on establishing and maintaining parasocial relationships with a ton of people... but just because a business makes money doesn't mean that it's a good business to have in operation.
> ...but with the players as well.
If there's one thing I've learned in my many, many decades stomping around, it's that it's impossible to please everyone... and if you try to, you'll almost certainly never produce something that's worth people's attention.
Nintendo and Zelda are household names. The Switch is good hardware, and -historically- Zelda games are good games. The number of folks who would have purchased the game, but didn't because their favorite streamer(s) didn't play it on-camera is guaranteed to be insignificant in the first year, and drop to effectively zero as the years wear on.
Nintendo is massively profitable, and has been doing this sort of thing (both toy production and exercising substantial control over the public performance of the same) for _ages_. They're certainly not going to lose anything significant by doing this, because -historically- they haven't lost anything significant by doing this.
This seems completely and obviously wrong to me.
As long as Nintendo spends even a cent on ads (they DO spend in fact more than 500M USD/year on marketing), it is very obvious that media presence has a very significant, non-zero effect on their sales.
Is one view on a youtube stream for breath of the wild worth as much to them as an average ad-impression they paid for? Probably not. But it's MOST CERTAINLY not worth 0. Thats just not how advertising works, and pushing that argument seems misleading and dishonest to me.
People don't even need to CONSUME the content-- just having it pop up on some feed might be enough to sway 1/10000 towards buying a Nintendo game the next time they're bored. Or need a gift.
So yeah, I agree, and I have absolutely no idea how people are still underestimating the influence those streamers have (especially on teenagers).
The summary paragraph says, "Ultimately, the lack of communication is what’s frustrating. If Nintendo wants to have strict policies, that’s fine, but let creators know what they’re dealing with, so they can work around it. Not everyone has a million Twitter followers they can easily share a level with, so it’s unfortunate that some well-made stages may be permanently gone simply because they got lost in the noise."
If you have a beef with the article, you'll have to contact the author.
I am talking to you because after you answered my first question, I assumed that you had personal experience with your children being upset to the point of tears because they thought that they could no longer play some levels they made that had been deleted from Nintendo's servers. Was this assumption correct?
Would everyone please stop pretending like a company's "content guidelines" can enforce any restrictions on fair use purposes?
Making a cosplay costume of a character is fair use.
Making a video of you playing a game is fair use.
Fan art about a video game is fair use.
'Content guidelines' pretend to "give" you rights you already have, and then threaten to take them away if you do thinks they don't like.
I guess there's some section of their TOS stating "we might just nuke your account because we feel like it" so they're legally in the right to do whatever they feel like. Just feels like such a weird way to operate such a business - to just go completely hands-off and let all participants tear each other apart via content reporting or takedown requests.
Option A) Be a little more strict about honoring takedown requests, possibly get hit with $X,000,000 in damages by incorrectly hosting infringing content, or
Option B) Honor takedown requests unquestioningly, and incorrectly take down a tiny fraction of the site's content, which might have served like $20 in ads.
It's not a hard choice. Unfortunately.
It's a free hosting site, the correct way to operate that business is to lower your operating costs as much as possible, such as for example by not employing thousands of additional lawyers to arbitrate in complex legal queries where, if the case goes to court, there is a significant chance the finding would be different to a legal analysis anyway (most analysis of fair use claims by a competent lawyer would have a substantial part of the answer be "I don't know but there's a risk...").
If you want a hosting provider who'll do that, bluntly they are much more expensive than YouTube are.
YouTube is broken, yes... But the law is broken much more. And lest you think the U.S. laws are draconian, Japanese law surrounding copyright is significantly worse.
I remember a lot of streamers who once streamed on YouTube moved to Twitch, often citing the fear of copyright claims (and lack of communication about such issues) as their primary motivators. This includes some pretty large YouTubers, like probably most notably moistcr1tikal. Twitch had more lax policies, especially about streaming copyrighted music, whereas YouTube pretty much treated stream VODs the way they treated videos. Lo and behold, not more than a couple years later, Twitch has its own copyright panic, specifically involving the use of music on streams.
For all of YouTube's failures, you're going to see all of the same crap anywhere that competes with them, pretty much. Google may be horrible at PR, support, etc. but I think the biggest complaints about YouTube are difficult to avoid. That doesn't mean we shouldn't have more competitors in the space, but I also do not expect more competitors to necessarily improve this particular problem. It might make it worse by fragmenting things.
If you want to see the end of frivelous copyright claims and takedowns, we need copyright reform that strengthens and expands fair use and adds serious liabilities for bad faith claims.
I think you need to take a look at this objectively. There is a company who obviously made a bunch of games/IP and is telling YouTube that this other person doesn't have the rights to use those games/IP. It seems very reasonable to assume the company is correct. They have a ton of lawyers on staff to knows these kinds of things!
Of course, Eric has been left with a recourse. He can claim to YouTube that yes he does indeed have rights to use those games/IP. It seems entirely reasonable if out of the two parties, one claims that the other doesn't have the rights and the other when presented with the option to claim they have rights doesn't make such claim, that Eric doesn't have the rights to use the games/IP.
Naive of you to think that works.
When you counter-claim, YouTube basically asks the original claimant "Are you sure?", and of course they're gonna say yes.
Exibit A: https://youtu.be/z4AeoAWGJBw - TLDW: Someone filed a false copyright claim against TheFatRat on one of his own songs. TheFatRat counterclaimed, and the dispute was not approved. YouTube does not at any point make a judgement call.
TheFatRat did get their video back so system worked.
TheFatRat sounds like a Content ID issue and not DMCA.
Eric mentions DMCA a bunch and also mentions the next step being a counter-claim. So I do not believe this is a Content ID issue and so TheFatRat's case is not apples-apples.
So, the way I see Eric's case is "I've tried nothing and I'm all out of ideas!". He was told he can do a counter-claim and has not even tried.
---
I suspect he thinks 1) Nintendo is within their legal rights 2) Nintendo doesn't approve of neither his modded nor edgy content and therefore wants to use public opinion to convince Nintendo to go back to ignoring him.
Would you sacrifice 0.0000001% of your assets (this guy) to keep a massive customer like Nintendo happy?
Sites like YouTube and Twitch (and Twitter, Facebook, Reddit, etc) are completely uninterested in following the law in any reasonable manner, and would rather fold the second they get any corporate pressure rather than let the parties settle it themselves.
Notice how independently hosted sites covering the same material (including major news sites) are often completely unaffected by these issues, since even companies like Nintendo realise how shaky their legal case might be if they tried to pursue it.
> So, if you've uploaded any video that features any Nintendo content no matter how transformative or directly in line with their published guidelines, you are at risk.
Nintendo does as it always does. The problem here is in the copyright, DMCA and related laws that allow such broadly nonsensical interpretation that large corporation with a sizable legal team can successfully threaten anyone touching stuff that falls under the copyright.
Yeah, it might be fair use, and how big is your legal budget again?
Nintendo has a hard time with the fact Japan law does not apply in the west.
Copyright still works internationally, since what constitutes infraction in your own country is probably an infraction abroad as well. Most countries have signed the Berne convention and have very similar copyright laws. Yet there are still differences, for example the length of time it takes for a work to enter in the public domain, and local markets reflect this.
Things are complicated online, since platforms based in one country distribute to many other countries, and so they open themselves up to liabilities in many countries. Where platforms don’t have the resources to differentiate by country, they might choose the most restrictive available interpretation…
As for what's used internationally - 50 years after author death at minimum is mandated by Berne. Practically it's author death + 70 years or if there's a shorter international length for a foreign work, then apply that.
That's because that is Germany's copyright law, which got harmonized across the EU. The US's "Sonny Bono act", which extended copyright to the same length, was mostly aimed at not having Hollywood movies and other such exports fall to the public domain in Europe after 50 years (the prior extension, which was made to be a signatory to Berne).
As a German publisher, if an Italian publisher distributes a counterfeit copy of your book in Italy, you are in your right to send a cease-and-desist, but under Italian law, which just happens to be similar to the German one (because they are both signatories to Berne). If the Italian publisher doesn’t comply and it ends up in a lawsuit, it is going to be a lawsuit in Italy.
If the Italian publisher also distributes the counterfeit book in Germany, you have standing to sue them in a German court (theoretically only for the copies distributed in Germany).
As to the length of copyright, it’s not relevant if it’s a foreign or domestic work (that’s actually the point of Berne!)—you have to apply the length of copyright of the country you are distributing in. For a long time Canada had the minimum death + 50 years, which is 20 years shorter than most common death + 70 years. This did not mean that Canadian authors got 20 years less internationally. Rather, it meant that Canadian publishers could distribute any work, whether domestic or internationally, 20 years earlier than most other countries… as long as they only published in Canada.
The Sonny Bono act similarly has no impact on the EU public domain, it was to prevent works to enter into the public domain in the US.
It does - the EU public domain law is "70 years after author death or, for a foreign work, the international copyright length, whichever is shorter", not "70 years after author death".
https://digital-strategy.ec.europa.eu/en/policies/copyright-...
I’ve never heard of “70 years after author death or, for a foreign work, the international copyright length, whichever is shorter”. It’s not in 93/98/EEC (that harmonised EU on 70 years)° or in the Berne Convention. But I’d be happy to be corrected.
° https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL...
I don't have a source, but upon doing further research the larger problem is the enforcement as countries through various agreements countries only have to give at least as strong protections as they give to their own nationals.
What makes enforcement difficult then is the cost of legal action… it is already expensive and time consuming in your own country, so it gets really expensive if you want to sue someone abroad, even if, because of copyright treaties, you have standing.
It's not an issue of copyright, but perhaps could be an issue of trademarks.
It's quite comedic how they build some of the most hackable consoles while at the same time pretending that any kind of emulation will get you the death sentence. A real bummer, because many of their devices are quite good handheld emulation machines for old games that no reasonable person will ever pay for again and the comparatively low specs of their hardware make games excellently playable on other platforms.
I'd kind of like to play Breath of the wild, or some of the newer Pokemon games. But not enough to support this kind of nonsense.
These days, most of my gaming happens on a PC, with a little bit on Android. If a game isn't available there, then I just probably won't play it. (I know there's emulation, but meh.)
When my son got interested in gaming, I didn't buy him a switch - we built a PC together. Nintendo is slowly but surely killing themselves.
I'm not going to fault anyone who doesn't take the same stance that I do.
It's a bit easier for me partially just because I don't have all that much time to game anyways. I think I might average 1 game a year completed, and a few others started - I just finished Control, after starting it sometime last year.
[0] https://www.nintendo.co.jp/networkservice_guideline/en/index...
How does this help their profitability?
Given that such videos are free advertising.
You can maintain your brand image. If some really problematic usage of your IP happens you can get it taken down. If that person had a license for making videos of the game you wouldn't have the ability to get the content taken down and your brand image could be hurt which could affect sales and hurt profitability.
>Given that such videos are free advertising.
99% of videos will be fine fine which is why you don't see companies getting videos taken down left and right. They reap the benefits of these videos, but they want to have the power to take things down just in case. Even if they never need to take anything down just having the power to just in case can be valuable to the company.
So to me it's a settled legal issue. The risk that the big studios run by keeping it a grey area is that some tiny studio decides to litigate it, and loses horribly. It's an interesting calculus and I'm surprised it's been a stalemate for so long.
Even if the game companies win this battle, they'll have to admit that playing their game isn't a creative work, it's just watching a movie, which is probably ground they're careful about treading on. "Yeah you don't really do anything, you just watch it" does not extract $60 from people's wallets.
My take is, whenever large companies say "X is illegal" but haven't won a lawsuit, it's actually the opposite. They know they're going to lose, so they don't dare ask a court to rule. When something is obviously illegal, you litigate it, and win.
This reign of terror stuff is part of how they sell licenses, presumably.
I guess I just don't understand why they don't get penalized for abusing the rights of US citizens.
I can't believe Nintendo would choose to create drama like this before the release of their most anticipated game in years.
----
so Nintendo has decided to take down the
my and other content creators videos I
ask that you watch this whole video so
you understand the entire situation
because it affects you and the content
creators that you may Support also this
is a prepared statement reviewed by my
lawyer so if it seems like I'm reading
from a script uh it's because I am my
main hope is that if somebody at
Nintendo watches this they will listen
to what I have to say and consider
reversing the decision to claim these
videos
so uh hi
I'm Eric or Point Crow I make videos
playing games sometimes in strange ways
but for today it's important for you to
know that on occasion I modify the games
I play and explore what happens when the
game mechanics are a little different
most recently I modified The Legend of
Zelda breath of the wild to become a
multiplayer game to be clear I have
never encouraged piracy of Nintendo's
games the mods that I've commissioned
are not being sold and all of the code
is custom meaning that they are free of
Nintendo assets
on April 6th one week ago Nintendo
decided to block all four videos that I
put up on YouTube playing the
multiplayer mod
I appealed their decision as I'm very
much in line with their content
guideline policies we'll go over that in
a moment and these videos are fair use
Nintendo then escalated and issued a
copyright strike against my YouTube
channel not once
but twice
rather than bundle the videos all into
one copyright strike Nintendo issued a
copyright strike for one video and then
bundled the other three into another
strike deliberately putting my channel
in danger but not taking it down
completely I was able to get an email
address for Nintendo and sent a message
asking that we discuss what's going on
and try to reach an amicable resolution
that would make both parties happy I
heard nothing back so far here's that
email if you would like to read it
so the next day Nintendo claimed 24 more
of my videos from my channels
most of them are modded content a lot of
them are breath of the Wild
but not all of them are this is key they
also claimed videos containing footage
from Super Mario Odyssey the Pokemon
series and Wii Sports Resort from my
channel the most surprising one though
was a claim from one of my first videos
back in 2019 marrying seiden and a
bookshelf to create hyrule's first car
it's just a regular vanilla gameplay
video of breath of the wild these
takedowns aren't exclusive to my channel
either over the course of the next
couple days Nintendo was taking down
videos from other channels as well
Croton another very prominent YouTuber
has had at least 10 live streams and two
videos removed
importantly one of those videos is
simply a challenge video detailing how
the game would be played if the player
decided to explore Zelda with certain
restrictions the player has imposed on
themselves these takedowns may have
started with modded content but they
have spiraled into something else
entirely so now you know what's
happening uh at this time my channel has
had 29 videos taken down two copyright
strikes and Nintendo does not seem to be
stopping the removal of videos from
other creators on YouTube
so let me really Levy the importance of
this on you the viewer Nintendo is
sending takedowns and Strikes against
the creators showing content of their
games it's not just modded content
they've shown that they're striking down
regular gameplay videos as well it's
sporadic and their enforcement of their
copyright is incredibly uneven the thing
is without even considering fair use all
of these videos are very clearly in line
with Nintendo's own game content
guidelines for online video and image
sharing platforms which I will include
in the description below I will also
read it for you here
from their FAQ what types of content are
acceptable under the guidelines what
types of content are not acceptable we
encourage you to use Nintendo game
content in videos and images that
feature your creative input and
commentary for example let's play videos
and video game reviews are within the
scope of the guidelines however you may
not simply upload a live stream of an
existing Nintendo video gameplay footage
without your own creative inputs or a
copy of content created by someone else
for example mirror copies of Nintendo
promotional trailers tournaments music
soundtracks gameplay sequences and art
collections are outside the scope of the
guidelines you might argue that modded
content is in violation of these
guidelines
but historically that's not the case the
terms of service for the Legend of Zelda
says you cannot modify the game
but it also says that you cannot stream
it you cannot make videos of it and you
cannot otherwise broadcast it
a Nintendo's game content guidelines
changes this though by providing a
license on top of the existing terms of
service which modifies the terms of
service for Content creators all of the
videos that they have taken down are in
compliance with their own policies I use
Nintendo game content in my videos and
they are all featuring my creative input
and commentary throughout the duration
of the medium now this is a little scary
because the president that they set uh
with this case may apply heavily for
their upcoming release of The Legend of
Zelda tears of the Kingdom as per their
decisions to take down gameplay and
Challenge videos alongside the modified
content it'll be difficult for any
content creator to post Creative
Concepts without having the fear of
Nintendo exercising their copyright over
video that is in line with their own
policies
in fact what they've demonstrated here
is that they will ignore their own
policies and licenses to selectively
enforce their intellectual property so
if you've uploaded any video that
features any Nintendo content no matter
how transformative or directly in line
with their published guidelines you are
at risk giving these decisions I'm
hesitant to post videos of myself
playing tears of the Kingdom even with
my creative input and commentary for
fear that they will also be taken down
I hope that is not the case so uh what
am I going to do
nothing
um I can't do much of anything about
this other than plead with Nintendo and
move away from this kind of content
my other option is to appeal the dmca
notices and risk a multi-million dollar
lawsuit
so even if I'm in the right here that
risks my channel my livelihood and the
livelihoods of my team I don't want to
go through that and I'm left questioning
the future of the content that I'm
allowed to make
so I'm releasing this video informing
you all of what's going on in this
community and using this as an open
letter to Nintendo so here's my explicit
message
to Nintendo
I love the games that you make the
stories you tell the ideas that you
explore from giving me the closest
moments that I've had with my friends to
my Mom calling every electronic device I
own a Nintendo
you mentioned in your content guidelines
that you are humbled every day but the
loyalty and passion for Nintendo's Games
characters and world and respect that we
want to be able to express ourselves
creatively by sharing our own videos and
images using content from your game
if you truly respect us and are humbled
by this community
don't take this creativity away from us
these channels you've targeted these
videos you're claiming are from some of
the people that are most passionate
about your games you're stifling that
imagination and punishing those who want
to share it with others when they do it
in the way that you have outlined for us
creators
please remove these strikes and claims
or at least start a dialogue with us so
we can figure this out and all move
forward with the excitement I'm sure you
would love to see about your future
games
you have my contact information already
from the dmca and the email that I've
sent uh I'll be waiting eagerly for your
response so
thanks
----
(This is YouTube's auto-generated transcript, no editing or formatting applied.)
Not necessarily. Being transformative may weigh in favor of fair use, but it isn’t automatically fair use.