YouTuber PangaeaPanga is a Mario speedrunner and creator of the popular Hardest Super Mario World Level Ever? video, among numerous other videos involving classic Nintendo titles. (Disclaimer: I haven’t actually watched any of these videos, for reasons that will become clear in about two paragraphs.)
How these videos work is that the speedrunner will often take the ROM (the memory image of an old Nintendo cartridge) and run it on an emulator. In the process, they often modify the game code to make it harder, or funny, or insane, or whatever else seems fun. The result is then posted to YouTube to astound the world. Or just make us laugh.
We’re used to thinking of Nintendo as the “good guys”, at least in a relative sense. EA is famous for gobbling up arthouse developers and turning them into yearly franchise factories. (Or firing everyone.) Activision is famous for taking its partners to court. Microsoft is seen as this privacy-invading creep. But Nintendo? They make fun games for cheap hardware and their fans love them for it.
So it’s understandable that people will rush to Nintendo’s defense. We like to divide companies up into “good guys” and “bad guys” because that makes for uncomplicated narratives. But the problem is that the real world resists this sorts of simplicity.
So let’s talk about why Nintendo is the bad guy this week…
No, Nintendo isn’t “obliged” to defend their copyright.
Lots of people think that if you don’t sue every perception of copyright infringement that you “lose your copyright”. That’s how trademarks work, not copyrights. Copyrights aren’t “lost” if you don’t defend them. Imagine how insane that would be:
“Sorry J.K. Rowling, you wrote those Harry Potter books but now you don’t own the copyright anymore. It turns out that back in 2004, Timmy Jones from Akron, Ohio made photocopies of Prisoner of Azkaban and handed them out at his high school. You didn’t sue him, and so now everyone can make copies of your books for free forever!”
That would be silly. The whole “defend it or lose it” applies to trademarks. And it’s not a punishment to force you to sue people, it’s just a natural consequence that if your word or symbol becomes a general part of the language and culture (like using the word “kleenex” to mean “any paper I use to blow my nose on”) that it can no longer be enforced because you can’t claim to own general ideas like that. Copyright doesn’t work this way.
But this doesn’t matter, since…
These videos weren’t infringing on Nintendo’s copyrights anyway.
Let’s say that I make photocopies of the first Harry Potter book and distribute them. Those photocopies are potentially infringing, and Rowling would indeed have grounds to pursue me in court. But let’s imagine that instead of distributing them, I took those photocopied pages, folded them into paper airplanes, and threw them around the room. And let’s say I made a video of myself doing it. Rowling might have grounds to sue me over the copies, but she would have no rights whatsoever to block the distribution of the video. The video does not reproduce her work, because you can’t read the book by watching me throw the paper airplanes.
(Actually, this wouldn’t involve Rowling directly and personally. It would be some sort of rights-holding entity like a publisher, but let’s keep things simple for the purposes of illustration.)
Yes, I needed to potentially infringe on her copyright to make the video, but the video itself is 100% protected speech. Even if she can sue me for making the copies, she can’t (by rights) do anything about the video.
And that’s assuming she can sue me for making the copies, which isn’t necessarily true because…
These videos aren’t even proof that piracy took place.
Think about the purpose of a copyright: If I write a book, then other people shouldn’t be able to publish the book without my permission. It allows me to secure the income from my work, so that other people can’t swoop in and make money from what I’ve done.
But PangaeaPanga isn’t selling anything. If PangaeaPanga owns a copy of Super Mario World, then they are allowed to have a backup copy. And that backup copy can be in the form of a ROM. As long as they aren’t distributing or selling this copy, then they have not wronged Nintendo.
And really, we’re talking about a modified copy of an out-of-print game, which is not being distributed to the public. That’s like accusing me of music piracy for singing off-key oldies in the shower.
You could argue that maybe piracy took place when PangaeaPanga downloaded the ROMs. But this is only piracy if PangaeaPanga doesn’t already own a copy of SMW, and I doubt anyone is going to suggest with a straight face that a die-hard Mario speedrunner never owned the original game.
But even if this is the case…
Nintendo has no proof of wrongdoing.
This is one of the most basic and fundamental elements of criminal and civil justice in the modern world: You can’t be punished until you’ve been proven guilty.
The whole YouTube ContentID system is a disgusting subversion of this. It was ostensibly created to prevent people from uploading copyrighted movies or songs directly to YouTube, but it’s since been perverted into a tool to silence criticism and engage in the very money-harvesting abuse it was supposed to prevent. Okay, Nintendo didn’t invent ContentID and they’re not the only people to abuse it. Not by a long shot. But they are abusing it in a way that no other publisher is.
“Other people are even worse” is a really terrible defense of Nintendo. Particularly since they aren’t that much worse. Because…
Nintendo’s position is morally reprehensible.
Nintendo’s position is that they have exclusive rights to play these games in public. This is something that’s never been tested in court, and I can’t imagine this notion would survive an actual court case. If this notion were upheld, it would mean Nintendo could decide who was allowed to talk about their games on YouTube. It would give them control over not just Let’s Plays, but reviews, documentaries, retrospectives, and even news.
Imagine if Apple claimed that only they were allowed to show the iPhone on TV. Imagine if Marvel claimed that only they were allowed to show images of their characters, and issued takedown notices to anyone making cosplay videos.
This explains why Nintendo is picking on individuals like PangaeaPanga. If they picked on someone with power and a financial stake, they might end up in an American courtroom trying to prove this ridiculous notion, and they would not be very likely to win.
So on top of everything else, they’re being horrible bullies. This is all the more offensive since…
These videos aren’t a threat to Nintendo’s bottom line.
How sick is it for Nintendo to obliterate the channel of a fan when that fan isn’t harming them in any way? It’s not like this channel could possibly hurt Nintendo sales. If anything, it’s keeping the public interested in those old titles. How much of Nintendo’s current nostalgia market is due to old-time fans keeping these games alive in the public consciousness?
You can claim that there’s no way to measure this benefit. True enough. But there’s clearly no harm being done. Are we seriously going to suggest that seeing someone play a speedrun of a modified version of an old ROM is going to somehow dissuade a potential customer from buying the modern re-release to play for themselves? (Assuming a re-release is even available.)
These videos are a natural, healthy part of a creative world where Everything is a Remix, and it’s naïve of Nintendo to expect to be part of the internet and somehow not be part of this continuous global multimedia remix. They’re at least covered by fair use, which was recently upheld in a major case.
Even Activision and Electronic Arts don’t behave this way.
Even the infamously litigious Activision doesn’t go around pretending they own the exclusive rights to posting videos of Call of Duty footage.
Nintendo is in the wrong, both legally and morally. They’re abusing ContentID to destroy the fair-use creative works of a fan who is either harmless or beneficial to their business. They’re only getting away with it because they’re picking on people who are too small to fight back, and because YouTube would rather side with the giant corporation than make sure ContentID is being used as intended.
(Have a question for the column? Ask me!.)
Shamus Young is a programmer, critic, comic, and crank.
