A Lawyer Explains the PointCrow Takedowns and the Legality of Mods
ฝัง
- เผยแพร่เมื่อ 3 มิ.ย. 2024
- What Happened to PointCrow? Why is Nintendo Taking Down His Videos?
I'm Moony: a lawyer. I've been asked by viewers to make a quick video about the PointCrow situation. This video explores the legality of modding, the nature of End User License Agreements, and shows you just extremely stacked the law is against content creators.
The reality is, all content creators operate at the mercy of IP holders, and they owe us -nothing-. We can follow their rules, or accept their consequences. If that's something that bothers you, the problem is the law itself -- let's look and see just how that is.
Poor PointCrow. I hope he emerges from this trouble unscathed.
10% of Moon Channel's Revenue goes to charity: including our sponsorship income! We are currently supporting Doctors Without Borders (MCF). You can learn more about Doctors Without Borders at www.msf.org/.
Our first donation will be arriving this month (once TH-cam payment clears) so stay tuned!
--
Please also consider supporting Moon Channel on Patreon!
/ moonchannelyt
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Chapters:
00:00 - Intro
01:47 - Chapter 1: The Legality of Mods and Fair Use
12:29 - Chapter 2: Guidelines vs. End User License Agreements
18:47 - Chapter 3: We Are Ever at Their Mercy
20:54 - Conclusion
23:39 - Sneak Preview/Credits Gag
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Additional Reading:
Please check out PointCrow, at:
/ pointcrow
17 U.S.C. §106
www.law.cornell.edu/uscode/te...
Micro Star v. FormGen Inc., 154 F.3d 1107 (9th Cir. 1998).
via.library.depaul.edu/cgi/vi...
MDY Industries, LLC v. Blizzard Entertainment, Inc. 629 F.3d 928 (9th Cir. 2010),
h2o.law.harvard.edu/cases/4365
Blizzard vs. BnetD
www.eff.org/cases/blizzard-v-...
Take-Two vs. GTA Multiplayer
www.pcgamesn.com/grand-theft-...
Nintendo Game Content Guidelines for Online Video & Image Sharing Platforms
www.nintendo.co.jp/networkser...
Nintendo Switch Support End User License Agreement
www.nintendo.com/sg/support/s...
Nintendo Switch Family User Agreement
en-americas-support.nintendo....
XBOX EULA
support.xbox.com/en-US/help/h...
PS5 EULA
doc.dl.playstation.net/doc/ps...
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The Track List, by Fan Request:
Sorry, I had to get rid of the timestamps; they were messing with the chapters!
You may notice a lot of the music is ... "modded." It was on purpose! Please enjoy this video's very eclectic mix of music, taken from Siivagunner. That's an interesting story in its own right!
/ @siivagunner
(1) Rito Village Night - The Legend of Zelda, Breath of the Wild
(2) • Shop (Virtual Console ...
(3) • Town - The Legend of Z...
(4) • Lon Lon Ranch (EU Vers...
(5) • Princess Zelda - The L...
(6) • Zelda's Lullaby (OST V...
(7) • Kokiri Forest (OST Ver...
(8) • Shooting Gallery - The...
(9) • Kakariko Village (Beta...
(10) Rito Village Night - The Legend of Zelda, Breath of the Wild
(11) Kass' Final Song - The Legend of Zelda, Breath of the Wild
(12) • Shooting Gallery (Alph...
If you recognize song (12), you have my love and respect.
Track playlists and additional reading resources might someday be a Patreon reward!
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Subtitles by: James Hugh
(Thank you, James!) - เกม
So, this is awkward.
PointCrow seems to have deleted his video statement, which means that this video no longer has context. Despite appearances, I suspect that this might actually be a good thing! I sincerely hope that PointCrow and Nintendo have hashed out any differences they may have had behind closed doors (as it should have been, to begin with).
he has only unlisted it. You could just link it if you want to add a way to see the context to the video if you want. But he just wants to move on from the whole Nintendo taking down his videos. That's the reason why he unlisted it
@@Omgitssoupahhh, fair enough
You are optimistic, I hope you don’t mind my skepticism on the timing of your video coming out and that video being deleted.
@@Misime33 this is a much bigger thing for the person than "watching a youtube video then deciding to delete a statement".
Like I said in another comment, I think Pointcrow is either naive or entitled.
It's one thing to use mods on Nintendo games for your own enjoyment, they will never go after you for that. But the moment you post yourself playing it, it's not innocent enjoyment anymore, you are at their mercy.
The fact PointCrow left out about him putting a bounty for someone to do a mod for him on his video, kinda tells me he did it with the intention to paint himself as the victim that do nothing wrong, your average viewer will see and just think "bad Nintendo". Posting videos of Nintendo games with mods is not fair use and it's really naive to say it is.
Really seems like he believes BOTW is a hit because of him and that makes him get a free pass to do anything.
"I wrote this script in an afternoon"
*checks runtime*
Damn he definitely is a lawyer.
If he can make one afternoon turn into two billable afternoons too he's a damn good lawyer
@@thepenguin9”two billable afternoons” lmao
I never expected seeing a lawyer actually using Ace Attorney characters and scenes while they explain legal stuff but I love it
And Eula from Genshin
@@eschelon9067 especially eula from genshin lol
LegalEagle does it occasionally, but it's mostly because his editor puts them in, not because he personally chooses the memes/references in his videos
I came to say exactly this, they know how a real courtroom works and they still choose to heavily use imagery from not only the kangaroo court soap opera visual novel, but I'm pretty sure most of that is the even more ridiculous anime adaptation
@@parad0xheartI disagree because he doesn't claim to own the character and he's not selling merchandise featuring the character and his content is more around commentary and using the avatar as a way to express that. I think it's transformative
You keep alluding to this stuff being boring, but it really isn't. You don't go into needless detail, everything that's relevant is explained in a timely manner, _you cut through the extra legalese that makes the spirit underneath enforceable_ (at least, that's how I understand legalese). We appreciate it, really, thank you!
I'll admit: I'm always surprised to hear that people find all the legal stuff interesting. I'm quite happy about it, but it's very surprising!
Agreed.
@@moon-channel A year late, but it is! No one ever really takes the time to explain any of this to the average person, and you're left to wonder why things happen, and if it's explained at all, it's just legalese, and is never explained in layman's terms - I LOVE how long your videos are, I love the in-depth history, and I love the explanations of how many things we encounter in the gaming communities we're in are rooted in legal actions both past and present. It adds SO much context and understanding for the average gamer/person!
I wanna take a minute and actually say i appreciate the detail in which you go with copyright laws both in the West and Japan.
When it comes to this topic, people always tend to act like WE had the correct way of handling copyright when in reality there's a clear rabbit hole of problems within U.S. laws that people simply tend to ignore. Which we'll most definitely see happening next year when the Mouse runs the risk of becoming Public Domain.
Regarding The Mouse going PD - it's technically his Steamboat Willy version that should be going out of Copyright and in to PD being 95 years since creation... if only D-Corp didn't start using that specific version of The Mouse as part of their Branding which would put it under Trademark Law which is a whole other kettle of worms.
They have already put the cartoon out on TH-cam so it is as freely available as it can get basically
@@AndersHass The short, but not the character design itself. That's why you have people making horror film versions of characters recently. Certain versions are becoming PD, but it's also been part of why the gap for copyright ownership is as Big as it is. Disney always try to extend it
@@aquelgamermexicano it is the video that goes into public domain. If they have released illustrations then those would be too. There is no such thing as the design being public domain.
I think the US does a lot better in copyright policy compared to Japan, especially in the permissibility of non-licensing of copyrightable works.
The hold on Disney for "Whose fault the law is and what might need to be fixed" was very funny silent humor. Props to the editor!
Fear the Rat. Praise the Rat. Beg mercy from the Rat.
I noticed this too - very on the nose.
The amount of influence Disney has on Copyright has been GREATLY exaggerated by the internet.
@@Guy-cb1oh please say more
@@Guy-cb1ohExplain.
The biggest takeaway is that you shouldn't shout about how much you payed for a mod to be created. Especially if the IP holder is extremely protective, and Especially *ESPECIALLY* if the mod costed *10,000 dollars* lol
Yeah, if someone is going to do something stupid, they shouldn't advertise it because that'd be stupid.
Then again, when the reason they did the stupid thing was because they needed more precious views... I guess it's all just publicity to him in the end.
lmao exactly
That and he should've known that NINTENDO, one of the biggest companies who get in a tissy over their copyright laws and legal stuff, aren't just going to sit idly by and have some popular guy advertise that their big million dollar game that they still print new copies of to this day has a multiplayer feature playing on something that isn't their dedicated console to a massive impressionable audience who would likely want to do the same thing...
... Uh... Yeah, no duh the guy was going to face heat eventually.
@@JarieSuicune It's only stupid because of the greed and incompetence of companies like Nintendo. I'm glad he did it if for no other reason than to make more people aware of Nintendo's bullshit.
@@Tobunari I mean it is. Nintendo has a reputation for protection of their IP because they can lose a lot from it.
Thank you, for explaining the situation to all of us.
There is a lot of confusing language in these documents, and there are a lot of emotions going around right now. So it is refreshing to hear a completely rational and well-educated explanation of the situation.
I don't like the situation any more than you do, but it is good that I now understand why it is the way it is.
🍞🏴☠️
Fancy seeing you here Bread!
Bread!!
Hey bread! Once a pirate always a pirate!
Well educated in law, not in how mods work. There's no Nintendo property in there.
i think its crazy how modding in japan is just flat out illegal to do if i remember correctly
Emulators are also illegal from what I know. What the hell!
Yeah 5 years... FOR SAFE FILE
That's a misconception. Modding and emulation is viewed the same way as over here: if you sell it then you're screwed.
@@RoboticEdward Oh I see. But what about console modification and save editing being illegal in Japan, is that also a misconception?
@atahanpiskin The people who got arrested for those were selling those mods, which is usually what companies go after when it comes to these matters. If emulation and modding as blanket terms were illegal in Japan then Nintendo or other companies making emulators for retro consoles shouldn't be allowed.
I am really glad your video showed up on my feed. Everything I saw about this situation was so legally inaccurate I just couldn't read or watch it.
I know PointCrow is extremely well liked, his videos are great and the community is supporting him, but my legal heart can't take people saying that Nintendo broke the law with the copyright claims or whatever.
Very much agree with this. I work in IP law even, and while i usually tend to be reluctant with commenting as i’m not well-educated in the IP laws of other countries (even less so American/Asian ones, being from Europe myself), a worrisome amount of comments i read made me want to tear my hair.
It should be pretty clear that Nintendo is not breaking the law. They are breaking a lot of good faith, it's terrible marketing, and all kinds of other negative factors, but it's it not illegal for the company to pull the rug out from under people that use their properties at their own whim no matter how targeted or belligerent it is in the execution of their rights.
As a fan of PointCrow, and watched his vid first, I’m also glad I discovered this video. I have faith in him that he’ll take responsibility for his mistake, at least with a vid admitting he messed up. It’s not entirely his fault, Nintendo has been criticized heavily in the past for copyright strikes and legal action by its general audience and has been since, thankfully that’s not entirely Nintendo’s fault either.
@@Shalakor They're not breaking good faith though
They've shown plenty of good faith as they could have been way harsher on PoinCrow and taking him to court which Nintendo would likely win as everything stated in this video points that they are in the 100% right and PointCrow is in the wrong by law.
Also let me remind you, it was the fans which broke the good faith you speak about first.
Its quite clearly listed that Nintendo does not permit modding of any kind and yet you still modded the game.
Just because companies chose not to pursue that doesn't make it okay or justified to do so. The only time modding is okay is if you received permission to do so first.
Don't get mad at Nintendo for this.
Also bad marketing, not really. People will forget about this in a week and only a very small margin of people will try and boycott Nintendo and fail as the majority buys the game anyway. Even if we pretend that it was bad marketing, that amount is something Nintendo is willing to lose to protect their IPs by removing anything which looks like a threat as if they fail to protect their IP then the losses will by far far greater
@Shamane Mallawarachchi well that could have just been a mistake...
They struck only one regular game play video whereas the rest were modded. Could have just been that they thought it was modded and so the gave it a strike along with the rest
Man sometimes the law just sucks
Sometimes? cant even think once that law has helped me or anyone I know a bit
@@prismaticseal2553 I mean if we didn't have laws, life would be like the purge, itd be ever man for himself, so they're definitely helpful in some circumstances. But ones like this, suck.
@@prismaticseal2553 I know you're exaggerating but you would have nothing and probably be dead.
i also feel like just because something is technically possible doesnt mean it should be done. the type of modding pointcrows team does is not harming nintendo in any way, its only boosting the games popularity even years after its release
@@prismaticseal2553 I concur. The law only exists to stifle the little guy and line the pockets of the big guys.
what i love with this channel is how you talk about copyright law in a soft calm voice that could lull me to sleep
With respect to him, I actually fell asleep somewhere in the middle of the video 😅 I might rewatch it again when I am fully awake
This does raise a question though:
Are Pointcrow's lawyers not very good, or is it that they probably told Pointcrow all this after he got the copyright strikes and he still wanted to go ahead making these kinds of videos, so they vetted his statement to give him the best chance to survive?
For now, I will blame his lawyers.
I'm not in a position to conjecture, but I suspect PointCrow's lawyers only became his lawyers, or got involved, after all of this happened.
The statement, however, is thoroughly vetted by lawyer(s): that much is very clear to me.
@@moon-channel I do too.
I was more bringing up something regarding ethics. If a civil lawyer know their client will lose, and the client decide to continue doing what they're doing, and the lawyer decides to vet their statements for a fee, are they partially morally responsible if the hammer falls on their client?
I can see it being argued either way, and I'm not a lawyer, but if I was I would probably decline to represent at that point.
You never truly know whether or not your client will "lose." And sometimes, your job isn't even to prevent the client from "losing," per se -- sometimes your job is just to mitigate damage to the greatest extent possible.
@@moon-channel so like the possibility of being sued?
I think the reason Valve in particular is so mod friendly is because Half Life was built off of a modded quake engine, The company was born from modding, as opposed to Nintendo which got its start in 1890. In Japan.
Oohhh
Has Valve ever made a third person game?
@@Unknown_User174 Dota 2?
@@Unknown_User174 TF2 i guess
@@jonasb7211 that's first person
I appreciate the little nod you gave to PointCrow, and presumably his legal, at 18:05.
Even though you're kinda poking holes in his defense throughout the majority of the video, it goes a lot to show that you aren't just clowning on the guy when you explicitly state "I'd probably make the same argument [here] if I were in his position"
You're probably one of the most interesting channels I've found in the last year. Keep up the great work!
What I got from the video is that “Pointcrow put up the best defense possible but from a position that, legally speaking, is completely fucked.
Offering a bounty for a mod is genuinely an awful idea, even if you're dealing with a company that welcomes mods, like Bethesda.
And 10k for what I assume took a ton of time and effort to do is extremely low imo, especially if they only get it after having completed the mod
@@highdefinition450 The effort doesn't really matter. In general, it's considered pretty taboo to buy/sell mods in literally any modding community. Hell, Nexus (the biggest modding site on the internet) allows mod creators to link their patreon but like... No exclusive mods, no holding back updates to non-patreons, and no direct discussion of monetization. If you do it, you get banned.
I can see why that is, but if you want a mod for something specific to exist and you don't know how to code, you shouldn't commission it? Even privately?
Again not really sure about that. It's hard to even find where this is done specifically in any court. There are people who have done this and then sold that content or the mod was used for piracy. There is always an extra reasoning behind it. Not just someone paying someone to create a modification of a game for them.
I'm also not entirely sure that this video in general is all that accurate when it comes to the topic of the legality of modding. All his examples he used all had secondary issues associated with the mod. They all were sold, used for piracy, etc. For example the Halo Online one is still currently avaliable as far as I'm aware. Microsoft TRIED to hit it but they lost iirc.
@@TrovaoSmasher This is one of those gray area parts. I mean privately perhaps, but that is a public site.
There's a reason why the people that develop cracks try to never reveal their real identity publicly, maybe modders should start following that approach and protect their anonymity.
But then they won't get their internet fame :(
@@ugabuga8282 back in the day cracker groups and their members were internet famous (sorta, within certain circles) despite the fact that most people never knew their real names. And I've seen some big-ish youtubers that get away with never revealing their faces or names, I bet it wouldn't be that hard to lead a double life online.
If you gonna poke the bear you might as well do it from behind a wall with a very long stick.
@@XanthinZarda Yeah, aliases are the way to go
Yes, they should try to be anonymous.
But first, modding is where a lot of people start. And being completely anonymous is something easy to fail when you're still learning the basics.
Second, most of them would rather not mod at all. The only reason they mod is because they consider it to be a selfless act that would bring no harm to them while helping others. Should they realise that they are at risks, creativity of the modding community will plummet as a lot of modders will withdraw.
And I fully agree with the conclusion of this video : the fact that so much positive creativity only exists because the law is not applied is a clear proof that the problem is the law.
@@ugabuga8282 You just basically demonstrated why fair use might not protect modders or streaming mods. Internet fame is arguably a commercial interest and cuts against fair use.
I feel like what got Nintendo to do what they did was the fact that the multiplayer mod was commissioned, since from what I can tell that essentially means that even though it wasn't put up for purchase, the mod was still made "for profit."
Because of that, they may have seen the videos as something that encourages for-profit modding. That's something that's looked down upon even by modding communities themselves, so Nintendo, being infamously extreme about protecting their property, would obviously have a strong reaction to it.
I suspected that the multiplayer mod was definitely the final straw. PointCrow has been playing with mods for a while now and I doubt Nintendo hasn’t noticed it until recently, especially since Crow is one of of the bigger TH-camrs in the Nintendo community.
Probably not, as Nintendo went after another TH-camr (Croton) who had been the main channel to feature a separate, different multiplayer mod that to public knowledge wasn’t commissioned.
On top of that, the multiplayer mod is only playable on pirated software or cracked hardware. Meaning that Nintendo loses sales when people want to play this mod.
@@GameTimeNLL the assumption that someone playing a modded version of a game has pirated it is inaccurate. Same goes for modifying one's game console.
I own two switches. One is modded and I use it entirely offline to play modded versions of games (mainly Animal Crossing, I would LOVE a control configuration mod for Metroid Dread). The other is entirely factory so I can play multi-player titles with zero mods. Stuff like Splatoon3 and Mario Kart.
If Nintendo didn't make it impossible to have more than one Animal Crossing island per switch, I wouldn't have bothered to dump my NAND (switch BiOS) and copy of ACNH to emulate on PC.
@@Cruznick06 inaccurate? You just proved my point by saying you use a modded switch to play modded software?? Edit: I now get what you mean. Still tho. If you play 2 copies of a game, no matter the reason, and only bought 1. Nintendo has lost 1 sale. Which is already ground for legal action.
It makes me sad that this is how IP law works. The fact that companies are not just within their rights, but to an extent obligated to protect their property in this way is antithetical to the purpose of video games. Content for games like Celeste show that mods of a game only help bring more people in and deepen the interest of already existing fans, rather than pushing away their fanbase and creators living with an axe continuously over their heads.
With all due respect, I don't think anyone is entitled to build a career off of the back of somebody else's IP.
The truth of the matter is that content creators have simply become too used to companies allowing them to use their IP in their content that the creators have grown to consider it a 'right' of sorts.
I honestly think Nintendo, like most game companies, are pretty fair in how they operate. They spend billions of dollars to create games and franchises, then some guy (not anyone in particular) with a copy of OBS and a capture card comes along and starts profiting from them. That guy then has the audacity to disingenuously act like _they_ are the one doing Nintendo a favour by providing them with 'free publicity', a favour Nintendo doesn't need and doesn't ask for. I was under the impression that most people agree that "exposure" is not a valid form of payment or compensation.
Nintendo offers an olive branch of sorts by essentially saying "we don't mind you doing this, but you've got to obey some house rules", a fair request, yet people will break those rules anyway, biting the hand that feeds them, and continue to cry foul when things escalate.
So many content creators refuse to take "no" for an answer and feel genuinely entitled to profit from the work and property of others.
Reminds me a little bit of the whole fiasco on Twitch, with streamers literally just broadcasting full episodes of TV shows and then getting pissy when things predictably turned south.
It isn't and I'm tired of people like this lawyer pretending it is and defending this scummy behavior that essentially amounts to a baseless scare tactic.
The mod contains no Nintendo property. Nintendo has no legal right to demand anything concerning it's distribution
@@gormauslander Are you a lawyer?
@@gormauslander Gotta agree with Aaron. Unless you can back that up with a legal precedent, that seems like a pretty baseless take. The video clearly shows that the precedent established is that any independent modification of a video game is an infringement of copyright, regardless of how the code is written. (which, as I was saying in my original comment, is stupid)
@@arstulexDisney and Nintendo are living of the backs of people that worked 80 and 40 years ago, but is right because they have money? CP law is a joke. CP should last only 30 years or so before it becomes free for all because at that point is public culture an no one should live out of something they did 30 years ago, imagine a carpenter making one chair, a really beautiful one, then living the rest of his life confortable because of it... Makes no sense.
Honestly, more than anything, I think it puts into perspective just how much the... "atmosphere", I guess, surrounding copyright law and the internet has changed nowadays.
Like, here's an example: a looong time ago, back in the late 2000s, there was an extremely-popular person named Walrusguy who made TH-cam Poops. At one point, he made a very, very successful YTP utilizing Doctor Rabbit, a short cartoon meant to teach kids about dental care. Shortly afterward, Colgate, who owned the rights to Doctor Rabbit, issued a takedown on his video - and if memory serves, this was before the strikes system was implemented, so Walrusguy's channel was just flat-out gone. At the time, it was a huge deal.
Walrusguy, however, fought back. He actually countered Colgate's takedown and straight-up brought the case to court, arguing that the YTP he'd made (among all the others) was an example of fair use parody. Nothing like that had really happened before in the YTP community; up until then, uploading any sort of copyrighted stuff was basically a guaranteed ban, to the point that people actually kept graveyard lists to keep up with their favorite YTP creators.
The real surprise, both at the time and now, is that Walrusguy actually won that court case. I don't remember the details, but whatever happened, Walrusguy's channel was fully reinstated and Colgate didn't issue any more takedowns on anyone else's Doctor Rabbit stuff. In fact, that's arguably when the copyright stranglehold started to loosen up, since people started making and uploading YTPs of numerous other 'sources' without worry after this happened.
Nowadays, with the corporatization of the internet and the increasingly-muddy field of copyright law, I don't know if that could ever happen again. It's tremendously frustrating that the internet, games, and media as a whole is slowly backsliding like this, even if it's technically "lawful".
Well, that seems like a fairly different example but certainly interesting and relevant to the general history of this stuff.
There is a massive difference between parody and mods. That's apples and oranges, all the way.
An interesting bit of history, but implying very much backwards thinking in relation to this video.
maaan, walrusguy was my go to YTP back in the day. was always curious about that colgate stuff. thanks for the history lesson.
So back then, no one was making money of TH-cam videos. It's a lot easier to argue "fair use" when no one is profiting from the video.
Once you're making money off a video, the rules become much more strict.
It's not the same thing. He can argue transformative, parody, educational etc
Crow, raised $10,000 to build or develop a multiplayer in an existing IP game, which he doesn't have the rights, or permission to do so.
i appreciate this side of things, because everyone just automatically shouts "nintendo evil!" when something like this happens. while i agree that nintendo is completely backwards when it comes to online gaming and e-sports, this video raises important points regarding the mod scene that i wasn't even aware of, such as security concerns around nintendo's software and hardware. and i think pointing out that nintendo's stance on the modding scene is fairly industry-standard was a good point to raise also.
Are security concerns actually valid though? Even with their current strategy, they get their stuff pirated and cracked regardless. All the things that had to happen before this mod was even possible have completely jeopardized the security already. With the way technology is now, you will never stop piracy of anything that isn't required to be always online. Thats just the facts. You can already emulate the switch and play breath of the wild on PC, and you could years before this mod in question came out. And emulators themselves seem to exist in a grey area.
Yes I'm sure the security concerns would hold up in court as legal justification for the actions, I don't think in the real world it actually holds any water.
Some unlawful activity is simply unstoppable and they would need far greater changes than more aggressive take downs. Similar to how you can listen to any song or watch any show you want to with ease right now without paying a cent to the IP holders.
@@AWanderingSwordsman unless we know the ins and outs of nintendo switch security, which we probably don't, then i think software and hardware security concerns are legitimate.
@@33LB they know it well enough to jailbreak it and emulate it (and emul;ate online for it) and have for several years.
Nintendo is still evil
@@AWanderingSwordsman I think its because it was never completely public, or completely publicized. No-one made a TH-cam channel dedicated to Zelda mods. Until this, where even if the ocontent creator isn't profitting directly, by having the video monetized hes making money off a mod, which is illegal.
If you do soemthing like this in the dark without anyone else's knowledge thats harmless fun. No one else is going to know. But put that on TH-cam and you should pronably expect this to happen, especially with Nintendo.
It's very interesting to know the content guidelines aren't 100% the same as a license agreement, and it's not just from Nintendo. That seems pretty scary the fact that there's a chance that your video will be claimed randomly.
Anyways, nicely explained video as always. Unlike your last law videos, I have a bad sense that this one will receive a ton of backlash. I can only hope the average Nintendo antis understand what you're coming from.
Much love.
I hope this video doesn't end up being controversial. It's not that I agree with Nintendo's decision: it is, however, the nature of the law.
And indeed: really, almost any gaming content creator's video exists only because companies give it the OK to exist -- not due to any underlying protections said videos may or may not have (usually).
@@moon-channel unfortunately as it is in the law it will reach and cause problems for many people, intellectual property should not exist.
Intelectual property not existing is not a good idea because there you end up with no protection for piracy, a evolution of how it works isa better result
@@SirBucelotte intellectual property should exist. Otherwise Piracy would be legal and with that, nobody would have incentive to create when everything would just get stolen anyways however it should be toned down. Companies should have less intellectual property, enough to allow them to stop people from pirating content but not enough to be able to control their own consumers.
@@SirBucelotte
If intellectual property doesn't exist, anyone can steal anybody's creation whatever they want, and "originality" would be completely out of the vocabulary.
All of this drama could effectively be summed up with one sentence: The MOMENT you get money involved, Fair Use DOES NOT EXIST.
I feel a really good example of it is the Axanar situation. CBS used to allow high-budget Star Trek fan films all the time, a few even had Star Trek alumni behind the wheels in some capacity or another. But the INSTANT the Axanar team tried to profit off it, selling branded merch and the like, all bets were off. CBS rewrote practically their entire guidelines for fan films, and they were well within their rights to do so.
I love PointCrow, but really, SOMEONE should have told him that offering a cash prize to drum up publicity while using the Zelda IP was NOT Fair Use. Not even close.
That is a common misconception but it is not true, just because money is involved doesn't mean fair use is automatically out the window. It weighs against fair use but it is not the only test.
I remember the moment the commissioned mods were released, I saw people from the modding communities commenting how the majority of them considered it Bad Form due to most modders do so as a passion and don't try to get any payment from it due to trying to make as small of a target on the community's back for these copyright takedowns. If no one is directly profiting for doing it, then they are least less of a threat than those who are. (Ignoring the TH-camr revenue stuff.) So basically the modding community in general looked to be very upset at these select few publicly "rocking the boat" and gathering very obvious attention, especially at PointCrow announcing "I PAID FOR THIS" in multiple videos and locations. If other people have paid for mods to be created, they have kept it mostly hushed.
PointCrow comes off as either very naive or very entitled. He's not just playing some mod he found online, he legit pay for it and thinks it's fine?
If you go to his video comments, you will see that a lot of people are painting him as the responsible for BOTW success (like is not a game for an almost 40 year old successful franchise), that he brought millions of copies to Nintendo and honestly, seems like he believe on them. If anything, encouraged people to play BOTW without paying for it.
@@kahp1072 Yhea I don't get why people think Nintendo owes him sales, PointCrow got popular FROM Breath of The Wild, He wasn't even an early speedrunner of the game, he got into it once there where established strategies
@@kahp1072 definitely not naive but most likely entitled yeah. Either way it's all a stunt because there's no way he didn't see Nintendo taking legal action, especially with their history. He knows he can make more money by playing the victim despite being completely in the wrong. Worst part is people thinking Point Crow is the little guy, while compared to Nintendo he is, but he's more successful that a vast majority of people and has his own LLC literally to protect him from things like this.
Announcing there was any financial transaction in the development of these mods was the dumbest shit he can do. Other was literally asking for it. Especially when its a company like Nintendo.
Man, I hope the algorithm picks this video up. You’ve done a great job of explaining the legal truth of this situation and I hope that this is something that everyone on this platform will come to understand.
Anyone who's a TH-camr understands the EULA. I saw the entirety of crows video response after Nintendo had taken down videos. Apart from the legal spoken script he read from, he still maintained that he hadn't broken their rules or the terms of rules written, which I find astonishing. This is how people defend blindly.
This video is amazing explaining the legalities, while not involving emotional jargon into the mix
@@ZeonEons Unlike say Spatz, who upon hearing of the situation, whined that Nintendo was wrong and that modding was legal, and then went off to complain that the system was old (which it is) but not have any thought or logic put in.
@@Tobunari Legal and should be legal are different things.
Honestly there really should be some form of legal differentiation for types of mods in my view.
Hardware modifications that make major steps towards piracy are one thing to restrict. But lumping in content mods that add new items/graphics without touching the code much in the same box. Or
It would be nice to see more active advocacy for changing laws to be closer to what people expect them to be in the area of copyright.
@@jonathanlochridge9462 Yeah but as far as the law seems to be looking at things according to this video, it seems to be more towards cracking down on mods than lightening up on them.
Let's sort of face the reality, in the end, we are not in control of things, and the law isn't made for our benefit, it's to tell us what we can and can't do.
@@Tobunari Most of that shift seems to be happening in the courts rather than the legislature. Although, I don't think a wide-spread copyright reform that makes things better is likely to get made into law anytime soon. If momentum keeps building like it has and we get some solid proposals maybe in 10 years or so.
Although, even just not having copyright extended when some of Disneys stuff hits public domain would be a good win.
There does seem to be a lot of people who want to just shorten the duration that copyright lasts. I could see something like that actually happening in the next couple of years. Particularly if people make a lot of noise and people put some work in.
If that does happen I am hoping for it to shift to a 25-30 year copyright term. going down to 40 would also help a little but would kind of be a meh compromise if it went that far.
I personally think 15-20 is too far unless we go for a system with some form of split copyright decay. And if a more extreme form of reform happens then there would be less benefits from making the copyright term shorter.
What I mean by a split decay is if characters go into public domain sooner than the full story. So, direct transfers or copies of a story. Like making a movie version is protected against for longer. That would prevent some of the most egregious abuses by big companies against original creators.
Overall, I think it makes sense for books to have copyright for longer than forms of media that have been around for less time like video games. And I think it makes sense for movies and TV to fall between those likely. My rough idea for a split would probably be to do a 40-50 year term for books, 20-30 for movies, and 10-20 for games. Assuming the only option for changes was for it to be on-off.
I think having a uniform decline of rights with multiple steps would probably be even better than having different public domain dates for different media types. However, getting the details hashed out there without either over-complicating things or leaving gaping loopholes would be difficult.
Although, in the long term only adjusting how long until things reach the public domain kneecap the possibility of a further rewrite.
That leaves me conflicted about whether to actually push for it as a priority. Although, if a good enough implementation of that could be won it would still make a big difference.
There is also the risk that AI copyright concerns might end up loosening it in a bad way for smaller people. Or act as a reason to tighten it up for everyone.
If AI training is declared to be theft, that acts technically as making it more restrictive. But not in a terrible way. However, it might also work towards generalizing a similar situation to what has happened to copyright in the music space.
If it isn't that has a significant major short and long term effect. And if that results in a major backlash we might see a public movement to increase copyright restrictions more focused on AI. If not that effectively blows open significant areas of copyright. Although, in a way that doesn't benefit smaller people very much.
I personally think copyright is needed. Although, if the courts declare AI art to not be a copyright infringement if training is done improperly I will probably switch to the perspective of wanting to abolish it legally.
Since at that point it will be effectively destroyed into a shell except perhaps in the area of music. A shell that only hurts smaller people. Although, at least that might result in generative AI continuing to be democratized for a bit longer.
Since at that point the vast majority of writers and authors will be replaced in the commercial space anyways.
Great video again, the way you explain all the legal text really shows that, even though unfortunate, companies, just like Nintendo, always have the final say on their rulings.
I hope that PointCrow gets to resolve this relatively peacefully and that content creators and viewers start understanding their unfavorable position.
comtent creators coming to understand that the current systems of power actually just hate them? never
Companies actually don't get the final say in rulings, courts do. Enforcing your copyright isn't wrong. If you produce unique art and someone steals it, you should 100% be allowed to order a takedown and sue if they refuse.
@@TurbopropPuppy the current system doesn’t hate them, they just allow them to exist until they turn problematic. Nintendo for the longest time didn’t allow content creation „officially“, but they never enforced that, except for the cases they deemed stepping over the line
@@MegaFIare Yea, your totally right about courts, I used „ruling“ abit weird there. I referred to the guidelines and TOS Nintendo reserves the right to revoke, but a court would still have to go through with all that xD
He could have if he had not appealed. This isn't restricted to digital media. Anytime you appeal and lose, the consequences could be far greater. In this case, as explained in this video, he was hit with more videos being taken down, since he wasn't able to appreciate their leniency
“We can talk about who’s FAULT that is” gotta love that very subtle allusion to who’s to blame here.😂
I didn't come away from this video thinking Pointcrow deaerved what he got, rather it really seems like we need stronger end user protections and IP rights in this country. When you buy a product it ahould be yours to consume and modify however you see fit, not at the grace of some stupid EULA.
That was clear key intention of the video. He stated several times in the video how the IP law around this is "lacking", and ended it on a "the law is at fault, fix that" note.
@@DarkonFullPower The problem is if Copyright Laws are updated, they are most likely going to end up more restrictive than they already are now with the DMCA.
Also, a more generalized/globalized education of the important stuff, because let's be real: Most of the copyright infringements out there made by fans usually happens because they(us) don't really know what the law entails.
Tbh I feel really lucky to have found this channel as I now know a few things about copyright and how companies can enforce it.
I'd like to say that everyone wanting to do a mod should better make their own games (I'll try to do so in the future) but it's definitely no the same, as many people are attracted to a game merely by it's "brand", while indie devs with new games never get enough recognition.
@@CountBleck2009 I think the smart move would be to wait until the right to repair stuff gets sorted. Maybe rulings about being able to work on one's own personal copy of a tool/device/vehicle can be logically linked to one's own personal copy of code. It's a weak precedent probably, but surely better than going into that fight with nothing.
@@wolffang489it will not work, as you don't buy the code for a game, but a license to run the code.
As someone who is very aware of how copyright is used to crack down on fan content (I luckily wasn't there for the war on fanfiction, but I did hear about it)... This makes me sad to hear.
Fanfic writers now have AO3, who do everything in their power to protect our ability to create these transformative works...
I do desperately hope that modding will receive such protection soon as well.
Though, of course: if fanfiction is more endangered by copyright law than fanart due to its closeness to the original source, modding is even closer, which makes it even harder.
I'm actually impressed the Mario Odyssey multiplayer is still standing. (given what you said in the video, it makes sense, but it's still scary)
Copyright law is... I see why it's there, but as a creative, as someone who wants to share and create their little stories... I hate it.
Of course this is all a huge money spiel. That's how it works. It's just... Standing in the way of so much creation and joy... :/
We're at the ip holder's mercy. And it's paining me to know how much power they have over us. (especially video creators (since this medium is relatively new?) are at a serious problem here. Maybe they'll figure out a way to tackle this law at one point in the future...)
In other words: reality is depressing, but now I understand the law of it a little more... Which is at least something.
(aka: very good video. Thanks for the information!)
I believe the only reason the odyssey mod is still standing is because Smallant didn’t put a bounty on its creation.
ao3 enforces 'we don't make money off of this work' stringently and with very good reason. you aren't even supposed to say that a fic is a commission, even if said commission was for a fandom charity event. the instant someone links their kofi or patreon, the author is asked to remove that link on the grounds that ao3 defense is built on transformative works and no money exchanged.
Copyright claims that it's meant to incentive creation, but really it does the exact opposite.
People generally don't create because they want money like Copyright claims. They do so because _the act of creation is its own reward._
@@angeldude101 That's only half true. Good writers write because they love to write, but they also want to be able to make a living off of what they create. I'm sure folks like Neil Gaiman, Terry Pratchett, Tolkein, etc. would still write even if they didn't get paid for it, but they wouldn't have been able to afford to write as much as they did. Instead of being able to write 40-60 hours/week, they might only be able to write 10-20 hours/week, since they're balancing their writing (which is now just a hobby) with a full time job.
So you'd have to cut at least 50% of their works out. You'd also only be getting their earlier works, since for most writers, their greatest works were created near the end of their careers once they had had the time to hone their craft. They might even avoid writing long-running series since they wouldn't be sure if they would finish it. Even for authors like Stephen King, whose most iconic works came at the beginning of their career, you may be missing out on things like the Dark Tower series or the Green Mile.
The act of creation is incredibly rewarding, but on the hierarchy of needs, rent and groceries come first.
I mean the thing is that Nintendo very clearly states that modding/hacking/dumping of their games and/or consoles is against the TOS.
So either
A: He broke TOS twice by modding/hacking his game and console.
or
B: He broke TOS twice by modding/hacking his game and dumping it on PC.
or
C: He broke TOS once by modding the game and committed piracy to get the game on the PC.
So whether or not we agree with the TOS the fact is that he should have seen this coming a mile away, yet is just giving us the surprised Pikachu face.
I don't think he committed piracy, but he definitely did break TOS twice by dumping it on his pc.
He also broke TOS when he streamed the game and uploaded it to TH-cam, since that’s in the game’s terms of service… but some parts of the ToS are okay to ignore, except for when Nintendo decides otherwise.
Two points I'd also add are that:
-Just because you release the multiplayer mod for free doesn't mean that you aren't profiting off of the mod. You still use the mod as content for your twitch stream in which people donate money to you, as well as using ad revenue for youtube videos that use that content.
-Just because Nintendo doesn't currently have a mulitiplayer version doesn't mean that they would never potentially create and sell an official multiplayer version in the future, for which a "free" fan mod is now a direct threat to Nintendo's potential earnings from their own mulitplayer model. Doesn't matter if the fan mod is not for profit (which is arguable), it would still pose as a harm to Nintendo's profits
The latter is the reason why AM2R was taken down when it was (was worked on for a decade). AM2R could pose harm Nintendo's own (eventual) remake of Metroid 2 (Samus Returns on the 3DS).
On your first point, while PointCrow doesn't sell the mods, the person who makes the mods for him "gives away" BotW mods with certain paid tiers of his Patreon, which I can't see anyone reasonably arguing is any different to selling those mods.
I still think that "threat to potential earnings" is a really weak excuse to take legal action. Oh, someone came up with an idea and made it into reality before you? What's the problem? Are other people are not allowed to make stuff? Oh, they infringed on your copyright? Let me ask, how does copyright work? Someone comes up with an idea and makes it before anyone else and therefore is allowed to claim ownership of it? Do i understand correctly? There seems to be something off about the justification here...
Yeah I wonder if pointcrow himself, or his brand, could be considered as a commercial entity? If he's got some kind of LLC or something like that like some streamers do for tax and money purposes?
I would like to use this mod
This is the most levelheaded take on this issue I’ve ever watched. Everyone else is just giving their knee jerk reaction, but you are applying your knowledge and research and actually showing both sides of the issue. Great stuff.
you imply as much but i found his argument that not selling the mod clears him flimsy. it’s not being sold but the 10k he invested is clearly paying off in the exclusive content he made before the mod went public, and the fact it serves as an ad for his channels after the fact. not being sold, but the profit he’s making from his investment is really a degree removed from being sold.
I thought he made it himself, so learning that he paid for it makes the whole situation even worse.
@@NuiYabuko PointCrow literally had an announcement video looking for pepole to mod the game for him
I remember people specifically modders saying he shouldn’t do the bounty because that’s weird like modding isn’t about that back when he first announced it. Plus it sets up a bad example for future content creators and modders.
When I saw this part, all I could think was "my God, is he really that naive?"
Just look at that rom site that sold membership and was nuked by Nintendo. If there's money involved, you not that innocent.
The first bit about fair use being an affirmative defense is really important and the part most people seem to not understand in these discussions.
Fair use is an argument you make in court. It is not “officially” fair use until a judge agrees with you.
Hey all! BOTWMP team member here (moderator specifically). I would like to say here that we all here are sad that the thing we've waited a full year for (the mod) has been taken down by nintendo so swiftly but I can't say this wasn't expected. To all people wondering if you can still get the mod officially the answer is a hard No, all download links in the server have been taken down as per the announcement of PCrow and Alex Mangue (Lead developer). All we can say now is we have to wait until everyone gets confirmation that we're good to go and once that happens the downloads will be reinstated in the server. Furthermore, *please* do not go around and spread the mod files if you have them, we don't want anyone from our community getting in trouble and we definitely don't want to get the team in trouble either. On a less related note, do not go posting leaks in the server, it isn't funny and your messages will get taken down. I hope this could clear something things up!
If there's any silver lining to the takedown, it's that Nintendo has to be aware of the following two facts:
1) There is demand for a Breath of the Wild type experience with support for multiple players in a single instance.
2) It is entirely possible to make such an experience, because it has already been made.
If a team of hobbyist developers can jerry-rig a multiplayer BOTW mod for $10000, imagine what Nintendo themselves could do...
I like that you emphasized that this isn’t a Nintendo-specific reality, but one the applies in some amount to many other companies in the industry. I see many people who are recommended probably mostly Nintendo-related news due to _viewing_ mostly Nintendo news (which includes myself, admittedly), and assume the fact they don’t hear much about other companies doing bad stuff to be evidence that the problem specifically relates to Nintendo (And then you have people who seem to think such a biased data pool of news stories can only unfairly _improve_ your perception of a company). Of course, if an issue is more prevalent in some companies than in others, it should be acknowledged, but also properly investigated instead of being assumed to be because “that’s just how they are” since you can’t immediately think of another explanation (also known as an argument from ignorance). Underestimating the scope of a problem or the complexity of its causes never helps to find a proper solution.
Thanks a lot for choosing to make this video! I really hated that a lot of people online commenting on it come from the Doug Walker school of law, and finally I have a link to a video to link of someone actually knowledgeable on the topic.
As a lawyer myself, I can say that the #1 thing people don't understand about fair use is that it's an affirmative defense. It isn't something that you can use to give videos ironclad pre-emptive protection from takedown notices or strikes. From a legal standpoint, it only has any kind of power AFTER you've already been sued and you're in court. Before then, it's a... guideline. At best.
21:24 if Pointcrow wanted a mod, and wanted to pay 10k, he should have shut his mouth and done it under the table
Yep, alot of modds and fan games need to learn: Do not anounce that you're making it, release it when its finished, once out it can't be deleted
@@jesusramirezromo2037 Well, the mod is out, it's also now being shared publically like crazy because he took it down from his discord lol
The fact that you have to literally take apart a Nintendo Switch in order to mod it should let anyone know that what they’re doing is not something Nintendo wants them to be doing with their games. People just see games like Minecraft that allow modding and think it applies to any game out there but that’s not the case. This is definitely a video more people need to see
Thanks for the quick and always impressive work!! Looking forward to diving in!
After diving in: I am scared, but entertained.
Moony you've really made me realize I just gotta cut the shit and make some I.P. so I can do whatever I want with it
I read the legal document you linked about the Microstrar vs Formgen decision, and i'm struggling to wrap my head around the reasoning the judge/court uses, as well as the implications it has on derivative works in general, not just mods or emulation. According to that document, even though the map files did not contain any of the actual art assets or code that Formgen made, the court found the maps (or, more specifically, the frames of video the game generates when the maps are loaded) to still be derivative works. Microstar brought up (as I would have) that the video frames generated by the software isn't a permanent concrete work and cited Lewis Galoob Toys, Inc. v. Nintendo of America, Inc which found that that cheating hardware (Game Genie) was non infringing since generated frames/the game running isn't a "work" in itself due to being ephemeral....
But the court in Formgen dismissed that arguement and found that the maps are concrete work (even though their reasoning rested on the frames, not the map files, which it concedes don't use copyrighted content?) and what makes them derivative despite not using any copyrighted content is their status as "sequels". That seems incredibly circular and self-contradicting to me?
The maps only actually become derivative of anything under Formgen copyright when loaded by the game in a temporary audiovisual form that the judge doesn't dispute doesn't qualify as a part of the work, so what makes them "sequels" if the maps themselves, the part it admits is concrete and "a work", isn't actually using formgen works or material? Is a "sequel" even an actual legal concept in relation to infringement-fair use determination? Like, as an example (this is purely a hypothetical to help me understand the case better, it is not an actual thing I have or plan to do, nor am I asking for legal advice) If I make a wholly original 3d model of a room, it's my work, and it's not infringing. But if it's posted online and somebody mods it into a game, in accordance with that ruling, would that model now suddenly be "a sequel" and infringing just on the basis of it's inclusion? Surely not, right? (I get that the act of modding it in may violate some anti-DRM circumvention rules or create an infringing deriative work if the modded game is "saved" to the drive with the modifications intact, but sure noy actual 3d room file indepedent of anything else?)
Like, I get that the judge is trying to say that the game, with the maps inserted, is a new work that's derivative of both the maps and the original game and that's infringing, but again, Lewis Galoob Toys, Inc. v. Nintendo of America, Inc should establish that can't actually qualify as a new work, and works must be concrete which the judge then agrees with, but then the judge points to the maps as a concrete work, but the maps are wholly original and don't use copyrighted elements. Even i'm just repeating myself now!
So: Is that just a really bad ruling that could theoretically make almost anything infringing just on the basis of what people (possibly not even with the intent/wishes of the author of the new content) do with it rather then on the basis of the work itself, or am I not understanding it right/did the document you link exclude important details? If it is just a bad ruling, then does that also overturn precedent like Galoob protecting emulation and cheat devices? (I know the Formgen case also ties into use of copyrighted/trademarked marketing materials for the mappack, but that seems more clear cut and I don't have questions there).
The most charitable/non-insane reading of the ruling I can make is that even if a work is wholly original and non-derivative, if the "purpose of the work" (to pull from a fair use pillar) is to be inserted into another copyrighted work, then that work itself, not just the hypothetical new work resulting from that insertion, can be infringing? To be clear, that still seems absurd (Is white-out tape advertised as being useful to mark curse words in a book a derivative work of of the book then because it's intended to modify content on a written page? That seems silly but it seems applicable if that's what the ruling is, if not for the fact that the courts seem to consistently have stricter rules with deriative works and favor rightsholders more when stuff is software rather then physical, see also patent trolls with software/"On a computer" patents) but it's the most-workable read of the case I can come up with.
Second question: In your "Why is Nintendo so Overprotective" video, you do a good job trying to present why Nintendo may be so hostile to fanworks. But I'm not sure the video really clearly establishes that there's a real legal risk of fanworks causing them to lose their IP's, even if I trust you to know what you're talking about. For example, At least in the US, Petrella v. Metro-Goldwyn-Mayer establishes that lack of enforcement can't result in a loss of Copyright. Trademarks, of course, can be via genericization or abandonment or (I think?) laches, but it doesn't even seem like it'd be possible for a fanwork to lead to genericization (I mean, anything is possible, but the notion that a fanwork as opposed to official Nintendo products would push "Nintendo" or "Mario" or "Zelda" etc into being generic terms seems absurd). If Abandonment is only an issue of enforcement, not of use then maybe that's a risk, but as I understand it, abandonment, too, requires a fairly high bar, and cases like Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc establish one does not need to police even a significant minority of infringing uses.
I know you already sort of talked about this in a comment chain with AfterglowAmpharos on that original video, where you state that fanworks alone are unlikely to cause one to lose their IP's, but it could be used as evidence as part of a larger case, but that maybe the questions that user (and I) bring up deserves a follow up video: Is that a video you still wish to do at some point? I'd very much like to see a "Can fanworks really make you lose your IP?" video or something akin to it.
What a great comment, with so many great questions! I am replying here to remind myself to respond properly to this comment, when I have a moment to do so.
The very quick answer to your first question though is yes, it is as absurd and unclear as you think it is. The very quick answer to the second question is, the law isn't clear, and you can lose valuable copyrights through carelessness (see, SEGA video), and nobody with a big enough target on their back wants to be in the precedential decision that ends up clarifying everything (so to speak).
Losing your trademark by lawsuit wasn't really a thing until arguably Ford v. Foster and then Linoleum Manufacturing Co. v. Nairn, for example. And the legal theory is, that sort of thing becomes possible in the future if a company isn't careful in the present.
@@moon-channel You said you'd try to reply to me a few weeks ago when you could, so i'm giving this a bump, so to speak! Regarding your quick response to the second question, I feel like what happened with SEGA and Ken Penders is a significantly different situation from what happens with Nintendo and fangames, both in terms of, well, the actual situation (Fanworks vs officially licensed material where SEGA signed some sort of contract with Penders which he could then argue rights from, honestly or not), and in terms of how people talk about the legal issues around fanworks (which involves the mistaken(?) assumption that genericization, abandonment, etc exist with Copyright).
That said, I guess I could see a situation where a fanwork includes an original character or idea, then Nintendo makes something vaguely similar, and then the fanwork author tries to sue Nintendo for infringement? But i'm not even sure sending fanworks C&D's and the like even prevents that: Even a derivative work which was ruled to be infringing still has their original elements owned by the infringing party: Nintendo could still get sued for then using those fanwork original elements even if they had preformed a C&D on it.
In fact, one could even argue that C&D or takedown notice or infringement suit proves Nintendo knew about the fanwork and the similar elements Nintendo later made would be less likely to have been made without influence by the original fanwork elements, no?
Also, at the end of your comment here, if i'm understanding you correctly, you're implying that simply because abandonment and genericization aren't a part of Copyright law now (and are only Trademark things), doesn't mean precedence couldn't be set establishing that in the future.... but as I said Petrella v. Metro-Goldwyn-Mayer is already a Supreme Court case clearly establishing abandonment *cannot* be a thing for Copyright. I get that obviously SCOTUS does reverse their own decisions at times, but I think this is another example of what I said in my initial comment where some of the potential risks here seem so contrived and unrealistic that I sort of doubt that's actually Nintendo's worry, as opposed to them simply wanting control, especially given there are way more legally risky things Nintendo does or allows in contrast to the 1 in a million chance SCOTUS overturns that case or so on.
All that said, again, I'm interested in hearing a more in depth reply if you have time, and that I WOULD be down for you making a video delving into this all in more depth with a ""Can fanworks really make you lose your IP?" video or something like it!
I wanna add about Nintendo Guidelines because Pointcrow talks about it a lot in his video.
"The Guidelines are only applicable to individual consumers" I think they are only for individual players and PointCrow youtube channel is controlled by POINTCROW LLC company so guidelines aren't for him.
From what I know corporations ask Nintendo if they can stream their games. Good example are all vtubers that work for some company. Their companies ask Nintendo if they can stream Nintendo games.
He did everything without their knowledge so he is on lost position.
But im not a lawyer so its only my view on this situation.
22:52
Fr tho idk what the hell Shesez thinks blocking the vids in japan is gonna do. Even if Crow did, NOA could still take the same actions on behalf of it's parent company. And they're not even operating on Japanese jurisdiction anyway.
This is why when we have situations like this, we always first calm ourselves down and look at things *LOGICALLY* instead of looking at things emotionally and lashing out.
After a long time of consideration: FK. NINTENDO. End of story.
Pointcrow makes money off the modded multiplayer. It may be indirectly- through streaming and through TH-cam views - but he is still profiting from someone else’s IP. I like his videos, I watch them. But I am not under the delusion that it’s totally above board.
Ty for the subtitles James! The automatic system tends to "mishear" important words so your work is very much appreciated.
People always publicly post how they're doing these mod projects and whatnot then get surprise Pikachu face when they get told to stop. The thing that always gets me is that people like PointCrow get upset about being struck down by Nintendo for modding which they've done to many others and yet they think they'll be the exception where Nintendo will change their mind and let him do what he wants. It will never be like that. The Law doesn't give a damn about your feelings or story or how cool or great what you did is.
People acting like this is Nintendo attacking FANS is really wierd... I personally haven't been affected by this in any way.
I am so sick and tired of these people saying that Nintendo "hAtE tHeIr fAnS" because that's not true at all.
@@PT_926 Same here and I think at this point it's absolutely annoying as hell.
If it's not affecting my experience when I play their games, I don't give a fuck what they doing. Seems like people are afraid to admit that because they are so desperate to show how much empathy they have.
@@PT_926 I fully agree with you. If Nintendo hated us then botw would probably be a really bad game that was made to make us mad
Agreed. This is what the internet does. Some CC has beef with a company then they get their own subs brainwashing them into their negative mindset of that company
Thanks for the great overview of this. It's always nice to hear from someone in the profession as opposed to reddit 'lawyers'.
For my part, I have... limited sympathy for Pointcrow. Yes, he may not have intended to sell the mod and he claims not to endorse piracy, but the creation of the mod was clearly an attempt to monetise the videos, twitch streams and collaborations that would follow such a mod.
10k isn't chump change, and while Pointcrow COULD just be a passionate fan, I'm more inclined to believe that as a very successful content creator, he knows what his audience wants and considered that 10k an investment that would net him significant return.
TH-camrs are often painted as 'the little guy' in these situations, but Pointcrow is a minor celebrity in his own right making more than most will see in a lifetime and he's achieved that position in no small part by leveraging the work of Nintendo's IP. For him, that mod WOULD have been put to commercial purpose, and so when he makes videos calling out big bad Nintendo while presenting himself as just a dude in his room, I think it's a very careful reframing of the situation that downplays his own profiting off of their work while portraying himself as a victim who deserves support as opposed to a guy who's going to make bank on subs, merch sales and stream donations from people who want to 'stick it to the nasty corporation'. Pointcrow is no more the average viewers friend than Nintendo is, and they're both in the business of providing entertainment for money - Nintendo being so heavy handed again is hardly a good thing, but I'm also not going to pretend that I don't see Pointcrow manipulating the optics of this as though he's not also in the wrong.
Thank you for this video. I am also a content creator and every day we take risks when we upload or stream someone else’s IP. It sucks that this happened (it happened when people started modding animal crossing too last year) but you gotta educate yourself on the copyright laws as a content creator so you know when to fight back and when to take an L. I’m actually surprised it took this long for Nintendo to do anything. I like Pointcrow too, but…he found out 😅
Because he announced the release of the said mod if I recall.
It is 100% linked.
(huge fan of your videos btw!) but yeah, as much as i like pointcrow's content/the idea of this mod.... this was inevitable. nintendo makes their views on modding pretty clear, so we can't really act like this wasn't bound to happen. as unfortunate as it is, it's absolutely in their rights to act the way they are.
@@peachii3124 man: commits crime
Nintendo: does what literally everyone expected them to do
Internet: shocked Pikachu face
How was this situation surprising to anyone is beyond me lmao
@@peachii3124 thank you so much! 🥹
It should be noted that modding a PC game versus a console game is very different. In order to mod Breath of the Wild, for instance, you either need to pirate the game, or hack your console and dump your own copy.
And we know very well that 99% emulating Nintendo Switch games doesn't own the game.
Not to mention that, in a case like this, the line of "I don't encourage piracy" is literally just saying "I don't SAY I encourage piracy although my actions absolutely do so".
For one, dumping isn't that hard, its a matter of software. Secondly, in the U.S. if you buy a device, you own it. You can do anything you want with the device as long as it doesn't violate terrorism or cyber security law.
Dumping older games IS harder, but for example, dumping GameCube games from a Wii is just a matter of "hacking" the Wii, and installing third party software, and having a USB to store the game on. However an N64 is going to require a special device that connects to your computer. Same with older games.
The newer systems that have a base OS can dump cartridge games from the device to a storage device like an SD card, you just need the software to do it.
The issue is that you cannot prove that anyone didn't dump their hardware game into software even if they have the hard copy of the game, and as newer devices are released, it becomes easier and easier to modify devices.
As long as it is not redistributed, you have a right to back up your digital property.
@@somecatyoudontknow6471 and I think at least in the US this is where the hypoticial gray area is being pitch from. The idea that as long as your are only distrupiding the unqie code you written and are letting the user apply it to there own legally dumped back ups, that then your in the clear... witch even that's true in hypotetical, don't think as ever really been tested.
@@Left4Cake in 2002 Sony tried to sue someone for making a PlayStation emulator and lost. Made it to the federal supreme Court. *No grey area, not hypothetical, it is legal.* However, hypothetically speaking though another example is Adobe Systems cannot sue you for using a third party PDF reader to read a legally obtained PDF file, due to this case.
If you write a program that reads a file, it's okay. If you've legally obtained that file, it's okay.
The supreme Court has also ruled that we have a first amendment right to share non-copy right material and information freely via the internet, in a 2017(I think) case when a gun control group tried to get banned
the legal trade of PDF files that contains schematics for firearms to be milled out by a machine that is very similar to a 3D printer.(before this sparks an argument we also have a right to manufacture(or make) our own firearms, although restrictions on what you can do with said Firearms after you make it varies from state to state.)
To this end if an emulator developer shares their emulator and chooses not to exercise their copyright, you can redistribute said emulator.
If you own an object, and it is not being used to break the law, you have a fourth amendment right to own that property and do whatever you want with it. E.I. modding/homebrew/hacking/rooting/jail breaking/etc. Whatever term you want to use to describe reprogramming a device you own to load custom/alternative software. It is why Microsoft, Dell, Acer, HP, and other PC manufacturers can't sue you for using Linux instead of Windows on a PC, because its YOUR PC. This is also why Apple and Google cannot sue you for "jailbreaking" or "rooting" your phone, unlocking boot loaders, and installing custom/alternative software.
Also, heads up, you used the wrong "witch" which*
Excellent video. This situation is a case study for large TH-camrs who make a living off their content. Since it's their livelihood they have act like a business and do their due diligence when making decisions.
Tbh I'd recommend every gaming content creator watch this video. People need to know that they're not always in the right.
In other words, be responsible for themselves?
@@wifi961 No...just don't depend on another's IP creation, which is impossible for most biggest streamers and TH-camrs, since it's all about games and movies
@@thecommentschannel8310 I mean no one is broadcasting full movies lol
@@NovaMaster375 If it were a matter of "being in the right", there would have been no issue.
This matter is one of being on the right side of the law, which is not always the same as being morally right.
Yhea idk why PointCrow appealed, Since he comissioned the mod, That's a very murky area to be in
James Hugh is amazing for giving us subtitles for this video or else i would have lost track and would have forgoten what was just talked about lol
To say I adore this channel is an understatement. I've never felt this inclined to subscribe, turn off adblock, like each video and watch every video. The algorithm showed this gem of a channel and I love it. Wish you the best!
Well thank you, Anji! That's very kind of you to say. I hope my videos might always bring you so much joy!
Sending the appeal without a decent lawyer is borderline suicide
Sending the appeal in itself is an appeal. Therefore, whatever the context in that appeal wouldn't have mattered to an extent.
You aren't taking accountability which demonstrates to that company whom issued the takedowns that you still lack understanding of the issue and are still being combative
I would strongly caution anyone that wants the DMCA laws to be changed. Because if you think the laws now are restrictive, they will only end up MORE restrictive with a more updated and current law to fit today's landscape. The film, music, and entertainment industry will spend billions to lobby to ensure they have more control over their content right or wrong, they will. They will try to spin it as a win for consumers but ultimately, those industries are not going to lose billions of revenue.
The current system is severely flawed, but a new updated DMCA law would be far worse for creators than now.
I don't have a personal opinion of PointCrow one way or the other and never have watched his videos but I can assure you if new DMCA's laws were to be enacted, he wouldn't even have a chance legally.
The best and only chance for changes to allow mods would be an exception made by the The U.S. Department of Regulators to current DMCA laws to view mods as legal but this also very unlikely but far more possible than a new DMCA law friendly to modders.
Thank you for legal coverage on this topic Moony! As an aspiring game developer the concepts of law in regards of games are particulary interesting and your videos are really great at digesting those, to make them very clear to the viewer. Wish you the best and will definitely like to have a look at upcoming new video in my spare time.
Great video, very impressed that you wrote it in a day.
I am tired that this conversation is still in people pretending that Nintendo is somehow legally wrong. We should move on to the stage of what should change and how. I thought it was common knowledge that in almost anything, copyright sides with the holder.
I’m asking when are people going to be responsible for their decisions.
@@wifi961 Meanwhile I wonder, why is anything allowed at this point and why does average person allow this to happen?
Nothing is going to happen since this person paid for the multiplayer mod ($10,000)
Crows argument is false and further consequence came from his inability to accept accountability
thank you so much for uploading the video very quickly. very informative. I hope this video will help calm down the situation and make us all understand more clearly about what to do and what not to do with Gaming IPs when streaming or making videos about...
It's good to see you again: I'm grateful you had the opportunity to watch the video, Yuhei!
As a mere hobbyist, who likes to come up with their own concepts or characters, I honestly can't be angry at copyright laws. I probably have seen enough behaviour of "fans", who think that just because they like something that the thing and the people behind it belong to them and have to cater to them specifically. They will misrepresent quotes, make things up about people, harass people off social media etc. Often when people know the name of a dev, they're either put on a pedestal or treated like they're the devil. People will claim they do things out of love for the IPs, but then you'll see a bunch of comments about how it's better than the original product, so it's less about love and more about showing they can one-up the original devs. Heck, I had a video pop up once with a rainbow ink mod for Splatoon and a comment claimed that Nintendo will steal it, which was liked by the uploader, like only one person ever could come up with rainbow ink. It's also really arrogant, since without games existing, mods would mean nothing, but I guess people don't have that kind of modesty. As I said in other comments, "artistic vision" is used to gatekeep, then people will fawn over mods. You can always show your love by making something inspired by the thing you love, but then you'd actually have to start from zero and not get the easy way out.
Couldn't agree more. I see a lot of "once it's out, it belongs to the fans, they can do whatever they want" type of mentality and it's not uncommon to see fan made content where the fan behind it, thinks his creation is better than the original. I mean, just look at people on Twitter stealing drawings to "fix it".
There's a lot entitlement in fandom and they will never admit that.
The pokemon community in a nutshell
Thanks Moon for taking the time to put this video together! Your insight and knowledge is always appreciated! Also thanks for the mention!
This helped me understand it much better. I initially sided with pcrow along with other commentary channels about this topic but while viewing it from this angle showed me more than just his side, thank you.
I wish more people would do the same. It's not a secret that companies can and will use their rights to allow or not allow certain content.
Years ago there was a TH-camr that focused on Mario skits. These were for a mature audience, that attracted kids too
Well, no one needs to be a genius and see how this was detracting and hurting Nintendo's family brand. Profanity, violence, distasteful jokes, ticking every box all in the name of Mario
It's not a secret that copyright law is severely outdated and companies can utilize it to restrict people's creativity. I hate Nintendo because they fuck the fan base even if according to law, they have a right to do so.
just because nintendo is doing something within their legal rights does not make them morally right. this video was not an argument as to why nintendo was morally right, only legally.
@@Sickolas7 Even so, you cannot promote a mod that had been publicly monetized.
Exited to to hear your thoughts on this situation.
After watching I am once again amazed how concise and easy to follow you explain everything so non law savvy people like me can understand.
Fascinating and kind of grim dive into the legal world. Incredible work, as always - looking forward to more!
21:17 The timing of your advice here and Phoenix Wright facepalming was so good.
This is something I keep trying to get my friends and associates to understand. Fair Use isn't a law, it's a defense. It doesn't protect you officially until you're already in deep. By the time a massive company like Nintendo deems it worthwhile to come after a small creator, they more likely than not have very little ground to stand on as it is.
That's not to say we shouldn't encourage Nintendo to look the other way more often than not, but understand that modding is not protected under any circumstances and with a company with a history for shutting down mods and recreations and fan projects as Nintendo has, we're really not doing ourselves any favors provoking them.
If people wanna judge that this makes Nintendo evil, then by all means, feel however you feel, but don't think that you're getting off easy if you decide to challenge their grip on their IP.
I want to point another thing out. Most films can't be uploaded in their entirely to TH-cam. Why? because that would drastically affect the profits of the film makers because people would be able to watch them for free. On the other hand, how many video games can I watch the entire thing through on TH-cam? Pretty much any. This doesn't really affect sales because of the nature of the type of entertainment because it's interactive, so people still want to buy it, but the entirety of the game is still there, on TH-cam, available for free. That's... technically copyright infringement, but companies allow it because the interactive nature of video games makes these types of videos more beneficial for them then detrimental, because people want to play the games for themselves.
Now, on the subject of modded games, think about how that works. The thing that people are getting invested in and possibly being encouraged to want to buy for themselves isn't available for the copyright holders, it's available as a separate file download online. What else is available in this format? Pirated copies of games.
> but companies allow it because the interactive nature of video games makes these types of videos more beneficial for them then detrimental, because people want to play the games for themselves.
I wouldn't say that's the only reason. They'd also be considering that the backlash to taking a creator to court would hurt them much more than if they just let it slide. Really any case like this would most likely settle because neither side wants the case to get to court and make a definitive ruling one way or the other if recorded gameplay footage is fair use. If the youtuber/streamer loses the case, then that would mean they'd kill the whole industry of playing games for ad money/donations. If the company loses, they'd lose their DMCA button which we've seen been abused by companies to take down things they don't like.
First time I've heard of your channel but wow.
That was a masterful way to explain the situation, legal context, and how it all ties together. Thank you thank you for being impartial and bringing up comparisons, examples, and analogies without lingering or wasting time.
You are an extremely talented individual and I look forward to watching more of your content
The part of the EULA that states the license is non exclusive and may be revoked at any time scares me and makes me sad more games are going digital
If more people tried to work with companies like Nintendo, rather than painting them as selfish demons, and helped to give good reason for stronger and long-term availability of games then maybe things would improve. (Buying the games isn't enough, because rampant piracy shows they aren't worth it. Fighting the pirates is needed. Loving the games isn't enough, because modders and "remakers" show that the public doesn't think the game is good enough. Defending Nintendo's creations rather than those of modders is needed.)
As long as the public continues to prove as hard as possible that they aren't trustworthy, then Nintendo has no reason to give any higher level of trust than they already do. (To do otherwise would be idiotic.)
Instead of defending those who break the agreements, if the public united to decry such people then Nintendo could have greater trust and maybe move towards an even better setup.
It starts in the USERS, not the company to prove trust. And so far, the users have consistently failed that test.
@@JarieSuicune Haha pirate go BRRRRRRR
@@JarieSuicune OP: I when I hear that I am paying money not to buy a product, but to have it "licensed" to me, and that the original makers can hypothetically take it back from me at any time, with no compensation, and face no legal consequences it makes me concerned about the future of property rights for the end-users.
You, for some reason: But piracy is bad, though.
This video made me think that Pcrow's lawyers are not so experienced in this specific field, which made Eric himself looked like the bad guy because he's explaining what his lawyer's explained to him, in which showing that his understanding in the guidelines and the EULA isn't that deep, I kind of feel bad now because based on his video about this ordeal, and his posts that's clearly showing him still being salty about it, he didn't catch the fact that he's in Nintendo's mercy for all those mods. I even thought that the first time he ever talked about wanting someone to create the multiplayer mod, I was like, "If that mod is realized... I think he'll be in trouble" and here we are...
That's his lawyers instructing him to say the very least and stick with this defense in a court case. The last thing he needs to do is rant and have his words turn against him in court.
Surprised PointCrow didn’t think this would/could ever occur…
He thinks Nintendo owes him something.
some youtubers can't seem to grasp the reality that companies don't want to make bussiness with them
'but but 'free publicity' "
contracts for jobs exist for a reason, this isn't your parent's home room run yt bussiness
'but but it gives them more fans, and he is also a a fan!'
ehh, get out of your mod bubble for a bit, no one othside that niche and his channel care for this stuff, I didn't even do all botw missions and I still play it as it is just fine
the 'fan' card is useless as soon as money is involved
@@jolly_bean as if Zelda needed more fans lmao, he's playing literally the most successful game in the franchise, whatever publicity he gave the game is practically nothing in the grand scheme of things, especially if he encourages modding and emulating lol
@@highdefinition450 the fact that if you go to his video, you see tons of people saying became successful because of him, shows how naive youtuber communities are and he pretty much believes that.
@@kahp1072 Wait really? They think 1 person singlehandedly made a game successful? Bruh its not like botw is the latest in a 40 year old loves franchise from a (decently) good game company.
Thank you for the video, hope it grows to a larger audience interested in getting knowledge on the topic. I love your other videos too!
Thank you for continuing to make these video's, Moon Channel! Listening to them is very educational and enjoyable and I hope you continue to create a great many more.
I like how at 20:26 you started playing Snow Halation 😂. Fr though these legal videos are always a great watch
Just discovered this channel when looking up this topic (since Pointcrow deleted his response vid) and this is so cool!! I love Ace Attorney so this channel is hitting a really cool niche.
Great video. I dont understand why people struggle with the concept of copyright infringment. I knownits complicated and nuanced but the basics seem clear to me. I took a class intellectual and property law during college because I went into the graphic design industry.
It is annoying when you side with Nintendo people call you a boot licker. Most people wont get it until they put in hard work to make something and then see it be used in away you dont want.
Your channel has become one of my favorites to watch while working, It always makes my day when you upload sonething new.
Insightful and informative as always! thank you. Also, love the transformative LOZ music you chose as background. "Clever girl" 😉
I am so impressed that you noticed, ninja! I was thinking it would be at least a week before someone figured it out!
@@moon-channel Yeah, I loved the SiIvaGunner rips included. Caught me off guard!
@@moon-channel Does the transformative music fall under fair use/could it be used on TH-cam without getting copyrighted?
@Framed
Would you believe, the channel the music comes from ran into just such an issue, and at one point was entirely taken down?
The answer is complicated, and the result depends on how one uses and presents the arguably transformative music.
@@moon-channel This might be a loaded question but could one assume that the best chance of not getting hit with a copyright strike would be to use the music like how you do in your videos?
Thanks for the video by the way, I really appreciated the insight!
Just got yourself a new subscriber! The way you've covered this is so in-depth and engaging. Please continue with your great work!
Chapter 3 reminds me of how one of the reasons Insaneintherainmusic moved on from doing video game music covers, is that the IP owners could go after his content at a whim if they wanted to.
Thank you for the honest breakdown of the situation, and not just trying to come up with the best possible argument for Pointcrow. If we want to get anywhere with changing the law around copyright, we have to work on an informed basis, not work around what we wish the reality was. Also, great picks for the backing songs, all really great reworks! Sounds good!
I really want to thank for explaining this scenario and the legality of it in a simple way that is easy for us who didn’t study law to understand
I actually really appreciated your bluntness and honesty in relation to how PointCrow should've handled the situation. I hypothesized that something like this might happen with him releasing the mod so close to Tears of the Kingdom and I was pretty disappointed when I was proven right.
I love this channel so much! Its so relaxing to just sit down and watch a good video essay from such a small channel :D
I'm so glad that the videos can be relaxing and enjoyable for you, stormns! Thank you for your kind words!
Very nice touch playing footage of the Disney logo while talking about how the problem is what the law is and there's a conversation to be had about whose fault it is.
Thank you for explaining about this situation accurately as always on moon! 👍
You're very welcome, M64! It's always good to see you in the comments!
@@moon-channel My pleasure!
As always, another fantastic video. I love the in depth treatment of copyright law and it makes me seriously consider (at least more than usual) going into IP once I’m done with law school
Hi Moony, I'm not a lawyer, but a software developer. Yet I have something to comment and am interested to know your thoughts if possible. All my comments relate to the statement that "he uses 100% custom code with no Nintendo assets".
First and foremost I'd argue that the code part is false. It is downright impractical to recreate all the animations, physics, item interactions, NPC actions, etc. for just $10K. It's akin to asking someone to build you a completely custom Corvette with no OEM parts for $10K. It is possible, but very unlikely.
Second comment is about the assets part. It is also false as code is not the only asset. Character models, maps, objects, music, sounds are assets too and they are clearly used in the mod.
Finally, I think saying "all the code is custom" is even worse than just admitting to modifying Nintendo's code. Why? Because of all the rest of the assets in use! It's like he created his own game with Nintendo's graphics/music/sounds, which are copyrighted.
What do you think about that?
If i may ask, Moon says that multiplayer mods are especially bad. What makes the multiplayer mods more “serious” as opposed to just say taking one character and putting them in a different location?
Well Moon said this on 21:40.
@@Misime33 given you have to be connected to an online server of sorts. It opens a door to hackers to get in.
I don’t know anything about coding lol but he paid more than $10k-that was the initial bounty, and then he continued to pay them for ongoing work.
Thanks for the video!
With all of the people online who just give their uninformed opinion it's great to have a content creator who actually knows what their talking about! Even if you are saying some harsh truths!
Congratulations on another great video! Kudos to you :D
This video was super informative, thank you for taking the time to go over all of this.
Not that it would change anything in regards to the legality (and the frustration associated with it) of the situation, but I do wonder if something more positive could have come from this if the nature and exact purpose of the takedowns and strikes were more transparent.
What you suspected about Nintendo first issuing the takedowns because of the multiplayer mod and then doubling down on other content once it was appealed to send a message to PointCrow is very logical and honestly some brilliant detective work from my standpoint. The problem is that "message" is very hard to understand for someone who doesn't understand why multiplayer mods are so severe and different from other mods that DIDN'T get taken down--so, like, everyone who isn't a lawyer. And further taking down videos that AREN'T modded or are from other games just makes their point all the more confusing. It's like, it would be so much easier if Nintendo could have just sent an email or message to PointCrow saying: "No, we're not repealing our decision, and in the future you should be VERY careful with the kinds of modifications you showcase of our games--especially those that incorporate more players than intended." Sure, it would be harsh, but at least it would give content creators a better idea of what to avoid and be cautious of when uploading content.
Thankfully, that's why you're here! Thank you for putting out these videos concerning the objective legality of situations like these. I think that's really what content creators want most from everyone--Nintendo, TH-cam, Universal, whatever--just a bit more transparency.
Based on what I know of IP the subtle strikes at first were made because legally Nintendo can't make a statement on what is okay or not because it can be used in a court of law against them. So the strategy was to hope PC got the point and when he didn't they had to send a clearer message.
I wonder if Pointcrow himself will ever watch this video
It's a great explanation on why things are how they are
I think he might be since people have been spamming him with this video, but it is more likely and the smarter move for Pointcrow is just going to listen to whatever his lawyers tell him to do.
I hope he did watch this video. Claiming fair use and transformative work is not going to serve him well in his case.
This video clearly demonstrated that the multiplayer mod (which does have a monetisation value on it) and other videos is still breath of the wild, not minimizing it as part of a greater work.
Can't believe there's a Genshin character called End User License Agreement
Seriously, fantastic video, really helped with my understanding of how things work. I'm gonna stop saying "fair use" so often now lol
It is interesting how privacy is becoming a topic that's getting more discussion.
An argument that Nintendo can use in regards to the mods is:
1. The argument of how while the mods isn't being sold, somebody DID make profit out of it, which is basically still paying someone for something that Nintendo is already doing: developing assets for Zelda games'.
2. Privacy. Unlike Valve and Bethesda, Nintendo doesn't have any direct PC market. The closest we have for that is Dolphin coming to Steam soon, and even that's a technicality. A recent event happened with Microsoft where they locked any potential uploads of emulators on the Xbox Retail store, but were kept on their Dev Mode. And that is because the ToS for Dev Mode are way different than uploading a app to the retail store, which by that point is not only a potential risk of piracy, but a privacy issue with potential risk of actual malware.
Just because people use emulation or piracy as the method of modding doesn't remove the fact that people shouldn't even be able to do it, and it can lead to actual malicious acts. Case in point the Xecuter situation which was not only piracy, it had actual ransomware that would brick your console for no reason.
Good point
The thing is emulation is not viewed as illegal in the US. It is in Japan but their copyright law is just as ass backwards as our own.
@@megaman37456 Even emulation itself is not illegal, something that BOTH Sony and Nintendo had to learn the hard way. In fact is because of Sony that some PS related emulators demand you for the BiOS, because the idea is that you're emulating YOUR console.
Like how when playing games on emulators, the legal realm would be dumping your own copy of the game into your computer, instead of downloading one. It's part of why it's complete legal for the Yuzu developers (Switch emulator) to have a patreon dedicated to work on the emulator, while the people behind Xecuter cannot sell their products.
However, modding software is a different story. It's not the same as flat out piracy, but it's definitely its own realm of discussion, and the moment you can prove that there was profit involved in the production of the mod, then you run the risk of losing the fair use argument in court, even if he paid for it rather than sell it.
@@aquelgamermexicano Yes I agree modding *for profit* is VERY illegal, but any modder worth their salt knows not to monetize their projects. Keeps them out of legal hot water.
@@megaman37456 And that's the interesting thing with PointCrew's scenario. Yes, technically neither the person who made his mod nor PointCrew himself are SELLING the multiplayer mod, but Nintendo can make an argument that the mod was still sold. Like how some ROM websites are not making money through the ROMs, but putting ads in their websites instead.
At this point i'm talking technicalities, but i've seen enough trials to know you need to have like seven checkmates and luck when dealing with copyright.
Thank you for covering this. I feel like i understand the situation more
I noticed something a bit weird about Pointcrow's choice of referencing the Switch EULA.
If I understand correctly, the multiplayer mod is only useable with the WiiU version of the game. So while the game is on both the WiiU and Switch, wouldn't it be more relevant to use the WiiU EULA for this instance? Doubt there's any difference between the two but it just kinda bugged me.
Good point!
I honestly thought this would have been taken badly but you covered the bases clearly as always. Keep it up Moon... Wait, did you find a version of the Candy Mountain song that fit the video and put it as your end card song? Nice.
Ok im glad im not the only one that noticed it lmao, ill take the fact that this comment is hearted as confirmation
before i saw this i thought nintendo was just being a dick, but...yeah, i kinda get where they're coming from now. i don't think mods should be this harshly scrutinized by the law, but pointcrow really was ignoring literally everything companies have done before for this type of modding. isn't any money for modding a massive no-no?
the same way he would probably take something down if somebody made a 10,000 dollar bounty for a multiplayer mod for his game, nintendo did to him. i don't _want_ his channel to be taken down, but he's gotten himself into a tough spot with the big fucking N itself, so i can't really be cautiously optimistic for his future.
before watching this I thought Nintendo was being a dick and in the wrong. After watching this I still think they're a dick and in the wrong, but they have the law to support them.
@@GAPIntoTheGame very valid opinion
imo nintendo does kind of need to defend their property but there has to be a less dickish way to do it