(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.