34
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Nintendo goes after the YouTube channel RetroGameCorps and many others
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- Title
- Nintendo isn't just attacking emulators
- Authors
- Theo Rants
- Duration
- 13:33
- Published
- Oct 3 2024
Apparently Retro Corps is one strike away from being forever removed from YouTube. It's a channel about retro handhelds. They will try to comply but the very nature of their content makes it hard to do so.
I quite like the channel.
It's weird to think companies can just do that, obviously emulators are one thing (though I do not agree with the notion) but shutting down channels who merely talk about them? thats a very Orwellian thought.
Though to be honest I'm not sure about the legal area of Emulators, aren't emulators legal? Is it just switch emulators they're going after? Kinda like how Sony went after Bleem (though bleem was commercial)
The copyright claim is over footage of Nintendo games in the video, not the mention of an emulator.
Emulators aren't illegal, although people really misunderstand Sony v. Bleem! (it did not set a precedence that emulation is legal - the case actually had nothing to do with emulation). Modern emulators, as a practical manner, often need to bypass content authorization software to function, which is a (dark) gray area of DMCA law.
The annoying dangers of "fanart". It's okay as a grey area until it isn't. And fair use isn't strong enough that anyone would go toe to toe with a company to resolve this (and youtube obviously sides with the companies for DMCA).
I definitely feel this is the first area of DMCA to fix before anything else. You can't just target certain let's plays of content just because you don't like other things they talk about.
Um, Youtube isn't siding with anyone.
A copyright holder files a notice saying "hey, infringement, take it down per the DMCA." Youtube pulls the video, passes the notice to the alleged infringer ... and the infringer can either let it go or notify Youtube they dispute the copyright claim. Saying that, for whatever reason they think applies, they do have a valid claim to use that copyrighted material. DMCA makes provisions for someone served a notice to dispute it.
The reason is why they think they have a valid dispute of the alleged infringement is irrelevant at this stage. Maybe the material is out of copyright, maybe the notifier doesn't own that copyright, maybe the alleged infringer thinks they have a strong enough fair use case ... could be a number of things. But the target of a notice has the option to say "I formally disagree and wish to punt the ball back to the copyright owner."
The owner can then either decide they don't want to pursue, or they can in fact decide to avail themselves of the courts to pursue their claim of infringement. At that point ... courts. Only a court can sort out a copyright dispute. That's when a judge gets involved. Of course, it costs money because lawyers who've built all these systems that ensure lawyers will take a cut.
This is most of one of the big things people who get angry about copyright online don't seem to get. They want to use someone else's material. Here, game and game footage. Which is an infringement. They're using something that's copyrighted material. But so many people just go "not fair, mean, we're only little people trying to make money." With something someone else owns.
As for selectively accusing "only some sources" of infringement ... that's the copyright holder's right. That's what ownership means. They own that copyright. If they want only left handed women with a last name beginning with L to not get told to knock it off, while everyone else does get told to knock it off, then that's their call. There's no "fair" or "unfair." There's just stuff you own, and stuff you don't.
Lots and lots and lots of people on Youtube try to make money off stuff they don't own. It's only annoying when they get whiny about "wah, I wanted to make money off stuff I don't own but the mean owner said no."
I suppose it's more precise to to say "Youtube assumes guilty until proven innocent, and doesn't punish DMCA trolls". So it feels like they side by default with whoever reports. I can have no proof I own a video, and there's a non-zero chance I submit a claim and give it a strike. worst case, my malicious report is revoked. the creator's worst case isn't just getting the video taken down, but siphoning the ad revenue to the reporter.
It's very lopsided. And Youtube doesn't seem to have enough incentive to look deeper into it until you complain.
And there's fair use laws around that. Which Youtube also doesn't care about. But most creators lack the funds to fight obvious cases like this and again, there is no punishment for false takedowns. So those "someone elses" can basically shut down anything but from the biggest channels (at which point they do actually get dedicated Youtube support).
Sounds like a lawsuit waiting to happen. What if they only didn't allow black people or gay people to use their "generous" copyright I wonder...
Besides fair use? besides that, you surely can see my angle, right? If you start excluding specific people for something you otherwise freely give out with no intervention, that seems morally malicious. Part of a "free" license is no discimination on who can use it. Unless you can siphon money off their "free use" and then suddenly they pretend they are stealing their IP.
I guess by that logic, news sites get sued by the city or the people for invading privacy, they don't own that city they film in.
But we solved that centuries ago with freedom of press. But you do that on Youtube and you can get a takedown from some random company in the background you weren't even focusing on. I feel in a moral sense that there is a freedom being breeched. I guess you can interpret how you want, but ultimately it just comes down to the fact that "using small parts of stuff that doesn't belong to us" is a core fundamental of protecting against a hostile government. And ultimately I don't think you're understanding how much malice there is in that DMCA system either.
Google isn't a government, but they sure do get close. No wonder the courts are considering anti-trust restructuring.
Fair Use is not law. It's an affirmative defense against an accusation of infringement.
Only a judge can declare something's Fair Use. They'll declare it if they agree with the defense an alleged infringer raises in court.
The next paragraph in that wiki links brings up a case (the famous dancing baby Prince case) where the court eventually ruled a copyright owner has a burden to consider possible Fair Use prior to issuing an allegation of infringement.
However, even there, it's still likely to end up in front of a judge. Because all that case really says is a copyright owner will have to indicate (possibly prove if challenged) they considered how much merit there might be to a claim of Fair Use. However, I think anyone with two braincells to rub together realizes it's normally going to be quite difficult to successfully prove someone didn't "consider" something. But if they were really blatant about not considering it, maybe they screwed up and that'll hurt their case as it did in the dancing baby one.
Let's say I write a song about Fall, all the pretty leaves falling. And Joe comes along, takes it, and tweaks it into a song about Falling in Love. Let's say its super artistic and all that. Maybe even, gasp, meaningful in some deep way.
This is the kind thing that very well might qualify for Fair Use. This example posits Joe's done a lot of transformation that might qualify it for a Fair Use exception. Emphasis on might.
However, after Joe's taken my song and changed it and thrown up online or sold it to a record company or begun performing it live or anything else, after he's done any of that, if I hear 'his' song and decide "hey, he's taken my song, my song", and contact him formally (legally) to say "you are infringing, please stop" ... he cannot, legally, simply say "but Fair Use, go away" and that's the end of it.
What's happened is I created a Work. A copyrightable work. He's taken it and "done things" to it. Things that might even qualify it for Fair Use. But only a judge can decide "Yes, Joe's infringement qualifies as Fair Use" and legally force me to leave him alone about it if I decide I want him to stop.
Joe and I have a legal disagreement over something that has legal weight; the copyright. That's why courts are now involved. Joe saying "but Fair Use" does not give him the right to ignore me. I have every standing I need to put the matter before a judge. Basically, I'd be saying "this is mine, I don't think he's got a Fair Use case." Joe would be saying "But I do." The judge picks who's right, legally.
If the judge sides with me, Joe has to stop or the court does what courts do when people ignore their rulings. But, by the same token, if the court sides with Joe, I will also suffer the wrath of the court if I continue to harass him. I probably can't approach him after the case and say "well, okay, let's sign a licensing deal and I get X-percent of your revenue" and then sue him all over again if he declines to cut me into his use of his derivative version of my Fall song. The court's just declared it was Fair Use, which means while I still own my song, Joe's version of it, his derivative work based on mine, is legally a Fair Use of my work.
But no, no, no, Joe doesn't just get to ignore me. Or Taylor Swift. Or Nintendo.
The DMCA requires an intermediary, like Youtube is when it hosts a video someone else created, to stop publishing an infringing work upon notification. Otherwise they're on the hook too. If you owned a bar and let people post pictures on the wall. And someone told you they owned a certain picture Jill put up and if you didn't remove it you'd be sued right along with Jill even though Jill is saying it's really her picture, you'd pull the picture too. And wait to find out who's right, or at least who's not going to end up costing you money.
Maybe you might dither a bit early on, but if this someone showed up with a lawyer saying "pull it or we add you to the court case we're about to file against Jill", you're probably going to be not-casual about how you consider what's going on now. One of the things DMCA does is assure you, or Youtube, that if you agree to not host something after being notified it's not legal for you to host it, you're not on the hook for having hosted it.
So Youtube pulls videos due to the DMCA, while contacting the uploader by giving them the notice someone else filed. That uploader can disagree, say they feel they do have rights to the video.
What they're doing, that uploader, is effectively declaring they're going to avail themselves of the courts. Which they have every right to do, under the DMCA and other laws.
Yes, it totally sucks that it'll be expensive, because lawyers totally suck. But that's the world we have; one where lawyers have inserted themselves into all the cracks and crevices in our society. By having done that, they get a piece of everything. They've managed to ensure nothing happens with legal weight unless a lawyer, usually several lawyers, are receiving cut(s). Joy.
Copyright is a legal concept designed to outline ownership of something that's far from concrete. Intellectual Property, something that's very often fluffy and nebulous like a song or a story or a movie or a picture. Which is why a judge is involved, and there's very little "clear cut, summary judgement" kind of lines in Copyright. If Joe wants to claim he's transformed my song with his own original meaning (and other artistic elements) enough to qualify it for an exception under Fair Use, he can't just say he has and that's that. He has to convince someone.
The someones are me, or a judge. If he was doing it to Taylor Swift, the someones would be her or a judge. If the copyright owner agrees with Joe, then yeah, Fair Use is currently in effect. Because there's no dispute at that point. But if the copyright owner shakes his or her head when Joe claims Fair Use ... judge. Because now they're in dispute, and the way we handle things isn't with lynch mobs or violence, but lawyers and courts. Again, Joy. Maybe.
But most people on Youtube, most people online for that matter, are rarely actually transforming something. My example posits Joe used one song as the basis for new and original artistic expression, genuine expression with an intent to be creative, to create a work that is definitely derivative under the definition Copyright uses. But under those same definitions it might also be Fair Use.
What most Youtubers are doing is just outright taking clips (or entire programs), taking music, taking art, and filling it into their videos. And most of them think just saying "Fair Use" should be enough to excuse, without having to go to court, any and all things they take for their videos. That saying "Fair Use" means there is no dispute any more.
Game channels just put the game on and play it. The only reason it's "allowed" is because apparently only Nintendo ever decides to intervene. The rest of the game developer community (indie as well as corporate) usually just lets anyone put their game in, play it while recording, and upload those recordings to Youtube or anywhere else. Why do they allow it? That's their business; they could intervene and start issuing infringement declarations if they so choose.
But what's happening is a copyrighted work is being wholesale appropriated. There are Youtube channels that make what is apparently very big money doing absolutely nothing more than playing games. At best some of them talk while playing, but that's it. Are they really Fair Use when they do that? Personally I don't think so, and I actually do watch game videos on a not-infrequent basis. But it's not my business; I don't own a game so I don't really care, I just think it's likely most of them would lose if they took it to court, claiming Fair Use or not.
I do know there are games which I not only didn't buy due to knowing I could watch it online, there are games I would have bought except I could just watch them online without having to go pay for a Playstation and Game Disc. The Last of Us is a good example.
Pre-Youtube, pre GamerTube content, there were games from time to time that I had to go buy or be without. But when I heard about TLoU, I didn't have to buy anything to get the story. The entire story is on Youtube. I got for free, while some of those uploaders got paid (by Youtube, due to ads) for having uploaded their recordings of that story.
I would've probably bought TLoU, the same as I did buy a console and Dead Rising when that game bit me. Instead, I just sat back and watched an amazing story via the Internet. I seriously doubt I was the one person in the entire world who ended up in the same situation; not needing to pay because the game (everything except direct control over the interaction) was available for free.
I mention TLoU because while I do feel almost everyone who uploaded TLoU was very probably infringing, one guy I know about might just have a possible case for having transformed his use of it.
This guy did a "cinematic" playthrough. He still wholesale copied the cutscenes, but anyone who's played or seen TLoU knows the game actually puts a lot of story into gameplay sections via voice over and other techniques. So the full story of TLoU isn't available from only cutscenes.
Grant purposefully figured out how to play "cinematically" so when he included a gameplay sequence in what he uploaded, what he arguably created, it had flow and art involved. So the characters looked more natural and less gamey, less inorganic. There is some level of transformation I feel he's applied to the copyrighted TLoU.
Does that rise to Fair Use? Maybe. If I were called to issue a legal ruling, I'm leaning towards saying it does.
Nintendo has decided to object to some uses of their copyrighted stuff apparently. Whatever happens, if it reaches trial, it'll add to copyright caselaw, and specifically to video game copyright law at that. Should be interesting. Nintendo still has every right to object, or not, as they choose. They're the copyright owner.
It is law in the US, specifically 17 U.S. Code § 107 - Limitations on exclusive rights: Fair use with a plain text version accessible through the download link on that page.
It starts as such:
The law may be used as an affirmative defense because the defendant may affirm they committed the alleged acts but still succeed in their defense by proving some set of facts.
Specifically, if a defendant is accused of having used copyrighted material without permission — a crime under general circumstances — the law of fair use provides an affirmative defense: "Yes we used your copyrighted material without permission, but it was fair use so it is legal". Affirm, defend.
It is true that whether a specific use of copyrighted material without permission is fair use or not is muddy and up to evaluation so to some extent subjective, but there will always be some level of subjectivity in law. That, however, does not mean it is entirely arbitrary. Over time court cases regarding fair use have built up precedent and helped shape the four-factor fair use test by providing guidance, not part of the US code, on how to adjudicate whether something is fair use.
Which is only more reason why we need some sort of court reform. Courts are just used by the rich to bully the not rich, because it's long and lawyers aren't cheap (which is fine, but paying a lawyer for years is a luxury).
weak reinforcement when it benefits the bullies, yes. And probably no punishment for not considering this even if they completely lose. That's pretty much the Youtube abuse as a whole.
That falls on transformitive works, yes. I don't know the legalese, but there's been enough examples of this being commonplace that it doesn't seem like a slam dunk win like other copyright cases. There's even been a few cases in other media (translations IIRC) where the tranformative work was used by the IP owner and they lost, ruling that the transformative owner does have some ownership over it. That's probably why no company wants to risk using fanart without some sort of compensation; not worth it to open that box, but they want that free, organic advertising.
Definitely not a open and shut case. But commonplace in the modern social media (that is quite literally Tiktok's rise to revalance: taking others' content, "remixing" it, and throwing some sort of music in the background).
Well, we come to the same place of "how transformative is a video"? I've watch Retro Game Corps' videos, so I'm familiar with the format:
they don't run music in the background, so that's not an issue. the focus is on reviews of physical products and not any partiular media played on it. They play very small samples of games (<10 seconds) simply to evaluate performance. And the game itself is not really the focus of those videos. Old guidelines of what to follow for fair use would suggest that this seems to be under its umbrella. Not only does tranformative work not really seem to be much of a factor, but the samples struck are a very tiny part of what are usually 10+ minute reviews.
It's a spectrum, but I'd expect RGC's content to be far on the least egregious side of this "taking content" argument. Far enough that I may even try to sue if I had 7 figures to burn. But I'm betting Nintendo is better that they don't. It's just a safe shakedown to a moderate sized channel.
Because most companies realize this is free advertising and it's a symbiotic relationship. Nintendo is a lot more ideological and will selectively take down brands based on the content, the money made, etc. For them, it's okay until it's not, and the lines are as shifty as the sands that is copyright strikes.
it feels adjacent to patent trolling and it seems we're slowly starting to clamp down on that. So I hope the same happens for these frivolous hits one day.
I don't actually mind that too much. There's certainly efficiencies to look for, but I place most of the blame on the courts. If we had to pay maybe $10-50k for a court case guaranteed to resolve in 2-3 months (which feels like plenty of time for this kind of small despite), it'd still suck but we'd see channels in the 7 figure subs probably start to fight back and set harder precedents (which means smaller creators can easily get lawyers for futuer abuses). Especially since they can proceed to report that win for more popularity in the public. They may even get to fund it through crowdfunds if it's fundamental enough. But instead we are talking millions over years. That's not practical for a small team's livelihood vs. a corporation using a drop of its budget on the side while doing business as usual.
It'd be something worth considering since criminal trials have rights to a swift trial, but given that most judges used to be lawyers... well, the incentives don't line up. Maybe congress will one day play nice long enough to consider that.
Why not? It's no different than if you held a licensed piece of work, and selectively choose who to license it out to. You're not obligated to be equal or fair about it. It's your decision.
Well that's how we got Palworld's lawsuit. That's my main concern. Nintendo is fine with it until they get sweaty under the collar and suddenly it's a problem that people use vaugely ball shaped objects thrown at monsters to obtain them. It becomes an anti-competitive minefield disguised as a "free by default" license
If you're restictve from the start and everyone gets a license, that makes sense. But I feel if you are going to start targeting so selectively you need a more formal process and reasoning for this.
I feel like if a license has enough use with no interference from Nintendo, they need a much more formal takedown to suddenlty enforce it on an indiviual basis like that. Like if that channel was spreading content that damaged its brand.
Palworld's lawsuit is what it is. The courts will decide the merits on what exactly what patent Nintendo thinks Palword is infringing on. It's hard to even comment on the case and it's validity given we don't know anything about it. It also doesn't seem to have anything to do with this case? Are there are other games that infringed on whatever patent they're suing on that they haven't sued?
Content creators just need to be better at dotting their Is and crossing their Ts. Ask the creator about what their policy on streaming or videos are.
it's stupid, especially when Japan's court system's reputation (probably the other reason Nintendo sued) is well known. If it was hit in the US or EU there may actually be a fair chance a judge looks at this and throws it out. But Nintendo is smart, in that lawful evil sort of way.
I'm making a moral argument, not a legal one. Of course, current copyright can hit whoever for almost whatever reason and the recourse is minimal because even other big companies would rather settle than spend years in court. But that doesn't seem very "just" in my eyes.
And the opportunistic angle is very similar to a patent troll. Claim it's "a relaxed license" wait for someone to innovate, then take their money or quash anything that doesn't support your narrative. Be it from a youtube video or a product, the practice doesn't sit well with me.
Content creators should just not give people like Nintendo any coverage whatseoever, but that's just a giant prisoner's dilemma.
And like I said, most policies are strict but loose. You technically cannot make a drawing of a copyright'd character. But look what they allow all the time across the world...
Ive been hiding under a rock but isnt there a "fair use" clause on YT for both video and audio clips?
Fair use is particularly nebulous by design. There is no strict definition of what constitutes fair use or not. People assume something is fair use, which Nintendo then disputes, and neither side is actually wrong. But both sides are worried about setting a court precedent because it just might swing the other direction.
Ah ok - that makes more sense then.
They got them for minor violations such as playing a song for less than 30 seconds.
According to Kaze, most of the "Nintendo" strikes seem to be overzealous fans or trolls, not anyone actually affiliated with Nintendo.
YouTube short
Full video breakdown
I feel like this is pretty significant, if true? And just another example of how flawed and easily abused YouTube's DMCA system is.
Right, but the good news is that Nintendo's actual team seems to be aware now. And if the strikes are challenged, they seem to be reversing them in this case.
Still not perfect, because there's virtually no authentication of the person issuing the request.
Nintendo is fast on their way to "don't buy" list of mine. I'm definitely not a fanboy, but I own GBA SP with some games and I have invested a few hundred euros into the Switch line. They make great things but also are a bit too overprotective to the point where I would say they don't deserve that many customers.
Retro Game Corps
A bit late, but fixed.
p.s. Next time feel free to @ ping me, so I can become aware of issues like this a bit faster.
It's ridiculous how Nintendo treats their fans and communities that contribute to them making more money. Most of them try to focus on preservation, not piracy. I remember him or some other retro game channel complaining that the devices they were reviewing came with modern pirated stuff.
Retro Game Corps is on Odysee - if you like the channel and want it to continue, maybe you can watch it there and support the channel via other means than ads on Youtube (I believe the channel has Patreon).