Blog: Mario vs. the Internet: How Nintendo Chose to Enforce its Intellectual Property Rights

By Dimitri Karles, Associate Staff

 

The universal appeal of video games is impossible to deny. According to data collected by the Electronics Software Rating Board, the regulatory body that oversees the video game industry, 67% of US households play video games.[1] This ubiquity has led to record sales and industry-wide revenue eclipsed $10.5 billion in 2009.[2] Many entities, from independent developers to giant publishing houses, comprise the video game industry, and each one has the potential to influence the industry. However, there is one company whose influence pervades the industry to a greater degree than any other. Nintendo not only has some of the most recognizable gaming mascots in the world, but has also released a number of best-selling consoles. As such, the gaming community, in a rare show of solidarity, is generally positive in its views towards the Japanese gaming giant.

 

In May of 2013, however, Nintendo took actions that drew the ire of a large part of the gaming community[3]. One of the recent phenomena of the gaming community sees YouTubers posting videos of footage of new games, with or without commentary, which they share among their followers[4]. The community frequently refers to these clips as “Let’s Play videos” and calls those who upload them “Let’s Players.”[5] A number of these “Let’s Players” run ads on these videos, in turn generating revenue dependent on the number of views the video garners.[6] On May 14, however, a Let’s Player posting to the ZackScottGames channel discovered that the ad earnings from videos he posted of Nintendo games had ceased.[7]

 

After the news broke, and after the denizens of the Internet reacted as they are wont to do, Nintendo released a statement explaining the situation. Rather than completely blocking Let’s Players from posting copyright content on YouTube, Nintendo chose to insert its own advertisements “at the beginning, next to or at the end of clips.”[8] This meant that Let’s Players would no longer be able to gain revenue from videos containing content containing Nintendo copyright material, and, in turn, many Let’s Players stopped posting such content.[9]

 

Did Nintendo make the right choice? Should it have left well enough alone and continued to allow Let’s Players to post copyright content? Or, was its decision to exercise its intellectual property rights sound corporate policy? Though there is solid precedent that abandonment of a copyright can only be accomplished by some overt act, Nintendo was justifiably concerned about the future of its copyrights had it continued to allow Let’s Players to post copyright content without comment.[10] So, did, as the Internet predicted, these policies spell doom and gloom for the corporation at the center of this “controversy”? As it turns out, only nine days after he reported the cessation of his ad earnings, the same Let’s Player was back to earning ad revenue on those videos.[11] Was this just Nintendo’s way of sending a message to the gaming community that they would do everything in their power to retain their intellectual property rights, regardless of any potential backlash? We might never find out the answer to that question, but, as the world becomes increasingly reliant on digital media, we have to figure out how this situation fits into the larger context of digital rights management and the gaming community.  




[1] Video Game Industry Statistics, Electronics Software Rating Board (last visited September 13, 2013), http://www.esrb.org/about/images/vidGames04.png

[2] Id.

[3] Stephen Totilo, Nintendo’s Turn for a 180? ‘Let’s Play’ Drama Might Have a Happy Ending, Kotaku (last visited September 13, 2013), http://kotaku.com/nintendos-lets-play-drama-might-have-a-happy-ending-513818999

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Nintendo comments on YouTube ‘Let’s Play’ situation, adding ads to certain videos, GoNintendo (last visited September 14, 2013), http://www.gonintendo.com/?mode=viewstory&id=202693&utm_source=feedly

[9] ‘Let’s Play’ Drama.

[10] See generally, A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001); Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960).

[11] ‘Let’s Play’ Drama.

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