So by now, assuming you’ve spent any decent amount of time reading Techdirt, you likely know that Nintendo has a reputation for being aggressive and litigious when it comes to intellectual property enforcement. Someone makes a game that is inspired by Pokémon, but does not directly copy it? Lawsuit. Mods for that same game make use of Nintendo IP? Shut them down. YouTuber reports on a Nintendo game that was pitched but never got made? DMCA that shit. Find out your hot new Switch game got leaked early? Well, obviously you go to war with every kind of Switch emulation out there.
Now that last one might be the most relevant to this post. Nintendo recently issued a DMCA notice on a YouTube video and channel that merely reviews emulator consoles.
The channel in question, Retro Game Corps, describes itself as offering “in-depth reviews and showcases” as well as “emulation setup guides”. One of its more recent videos has received a copyright strike from Nintendo, marking a second strike for the channel.
“My Wii U video was taken down and I received another copyright strike, even though this showcase video was no different than all of the tech demos and reviews I have made on this channel previously,” Retro Game Corps owner Russ wrote in a statement on YouTube (thanks, TimeExtension).
Alright, first and foremost, I have to correct something in that quote. Nintendo did not issue any copyright strikes. It did issue a DMCA takedown notice. YouTube, as the platform, would be the one to issue the copyright strike. That being said, the bad actor in this case is still Nintendo for going after a YouTube channel simply because the company doesn’t like the content being discussed on it.
Now, notably, this was not about Switch emulation, but Wii U emulation. You know, the console that isn’t even for sale any more. So any claims that this channel is somehow any kind of threat to Nintendo’s bottom line is laughable in the extreme. And both Russ and I think he has a really good shot at making a fair use claim.
Russ is now considering filing a counterclaim as he believes the video “was for educational use, transformative in nature, and had no effect on the market”.
“It was a demonstration of a console no longer for sale (even the Wii U eShop is closed, so the company itself has no means of earning revenue from Wii U sales),” Russ said. “However, I am reluctant to open that can of worms with a multi-billion dollar corporation, as their next step would be to file legal action.”
Regardless of whether a counterclaim is filed or not, Russ has also said he’s going to alter the way he produces his videos in the future. This includes either just not using, or blurring out, any actual Nintendo gameplay content. But what’s frustrating about that is that Nintendo generally doesn’t have a huge problem with gameplay content showing up on YouTube.
Apparently it’s only if you’re discussing emulation that the company selectively enforces its “rights.”