Let’s Play With Nintendo’s Hypocrisy

May 18, 2013 | By | 19 Comments

Earlier this week, Nintendo started treading shaky ground with YouTube content creators. Having become an official YouTube partner in February of this year, they’re allowed to file “content ID matches” for videos using footage of their games, which puts their advertising in front of them; any money that the video creator was making on their content now goes to Nintendo instead.

The company offered the following statement to GameFront regarding the matter:

“As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.”

This is arguably worse than if they’d decided to pull the content altogether. Like Nintendo themselves said, some companies do this and no one makes money off of the video. For them to swoop in and essentially take money from the work of others — and there’s plenty of extra work beside capturing and uploading game footage — while pretending that they’re doing everyone a favor is sleazy. Worse yet, this only paints Nintendo as a bunch of hypocrites.

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The House that Mario Built isn’t above skimming copyrighted material for their own gain. The most famous instance is the soundtrack to the SNES cult classic EarthBound. The “original” score is spackled with barely-altered samples of famous music. This is widely speculated to be the reason that Nintendo has been slow to bring the game to its Virtual Console service, and now that they’re releasing on the back of this YouTube controversy it’s become laughable.

The icing on the cake? Nintendo CEO Satoru Iwata was a programmer on the game twenty years ago, a fact that he proudly proclaimed during the Nintendo Direct announcing EarthBound for the Wii U Virtual Console last month.

More recently, Nintendo was sued by Hillcrest Laboratories in regards to the motion technology in the company’s Wii Remotes. Hillcrest said that its patents were infringed upon and aimed to have the Wii banned from sale in the United States. Nintendo settled, although the terms weren’t disclosed and it’s unclear whether or not they licensed the technology from Hillcrest from that point on.

Nintendo has been the plaintiff in a copyright case as well, but that, too, was on shoddy ground. In 1990, they sued Galoob — remember Galoob? — over their Game Genie cheat device. The way Game Genie worked was that players could modify a game by inputting codes; some would negate a bit of the game’s programming to make players invincible, for example. Nintendo’s argument was that Galoob was creating derivative works with the Game Genie, which would be an infringement on their copyright.

In 1991, District Judge Fern M. Smith ruled in favor of Galoob, stating that “Having paid Nintendo a fair return, the consumer may experiment with the product and create new variations of play, for personal enjoyment, without creating a derivative work.” Smith also said that using a Game Genie is like “skipping portions of a book, learning to speed read, fast-forwarding a video tape one has purchased in order to skip portions one chooses not to see, or using slow motion for the opposite reasons.”

The Galoob case isn’t too far off from what’s happening with YouTube now. Players have paid Nintendo a fair return, and by adding commentary are creating nonderivative work. People enjoy watching livestreams and Let’s Play videos because seeing how people react to different game scenarios is compelling entertainment. It’s why the EVO Moment 37 clip is so popular.

There’s very little for Nintendo to gain by going down this content ID road. It’s notoriously difficult to monetize YouTube as it is, and  by stealing from those putting in the hours to celebrate their games is gross. When they’re doing it with their past of liberal use of the ideas of others? That’s downright insulting.