COGA: Special Edition: On Copyright Infringement

[Commander]

COGA: Special Edition

On Copyright Infringement

 

So hello there. I decided to make a little sub series of the COGA's called Special Editions. Special Editions are articles that relate either to current news or focus on something outside of the game making factors. So now we get into one of the biggest can of worms when it comes to fan-games: misuse of copyright. Unless you are relatively new to the hack and fangame world, I'm sure you've seen a case or two about the C&Ds to these type of games to shut them down. Just recently, I actually got a copyright infringement claim on one of my old version of my mod. I had to figure out what exactly happened and finally started to lightly piece together what happened. The led me to do some research and actually find a rather recent analogy that works perfectly to describe it. Hopefully, this article will be as little bias as possible but no promises. This is also based on my own knowledge of the subject so I ask people to fact check to prove me right or wrong.

 

Before I can even jump into the subject, I must define what the copyright law is. A copyright law is, according to the U.S. copyright law, a law that is used for creators to sell their product and is used to preserve creativity and advancement in the arts and sciences. That's fancy for promoting creativity. In order to keep achieving this, there are standards set to prevent the use of others stealing a person's product. There are ways to use these products legally called licensing which a user of a product agrees to a term, and possibly money, to which the user is able to use a product under certain conditions. I have a manual of a Nintendo game around here somewhere so I'll post the phrase in it later. [Insert Notice Here]

 

The very moment you have announced that you are making a fan-game, you have committed copyright infringement. You are using someone else's product for your own gain. Nintendo actually has the right and the power to shut down your game the moment you announce it. Obviously, it'd probably be a great laugh seeing the headlines "Nintendo shuts down something that doesn't exist" because in a sense it really doesn't. I do know fan-fiction actually falls into this category as well, but I'm not really sure if fan-art does as well. The point is that there's a lot of things that can be considered part of this copyright infringement range.

 

So why do things get taken down? I'll actually start with my situation with Hardcore. You may think Nintendo struck me, but I actually think it was somebody else. You see, I got a takedown notice due to a third party claiming I infringed the copyright law. The puzzling thing is that they took down something made almost two years ago. I would have guessed a bot, but a bot would have a hard time detecting only just that when the same download was available on a mirror uploading site. Basically, bot or human found that download link and ordered a takedown due to them finding keywords related to one of their IPs they are meant to protect. Let's just say that I would not hire them if I needed to protect IPs because not only did they make a mistake, they overlooked 12 files in the same exact area which should have triggered them as well let alone the fact that this file was well expired and no longer being passed out. Someone made some money out of it and I can't fight it due to possibly digging myself into a hole. Anyways, this is a claim of copyright infringement which is nothing more than just asking to take a file down. It happens to Youtube videos all the time so if it happens to you it's not that big of a deal (unless multiple offenses occur which will get your account banned).

 

Edit: I just did some research and indeed it was a bot who found the content and flagged it. There are some other company names I discovered from reading this article.

 

If Nintendo had been involved in my scenario, I would have been given a C&D notice. A C&D notice is merely a letter demanding someone who is committing copyright infringement to remove all use of the copyrighted content and to never commit the infringement again. It's just a letter sent to you which gives you a certain time period to act before legal action is taken. You don't need a lawyer, but usually one is used to be sent to the culprit of the act. It's not something that'll appear on your record nor is it something that means they'll press charges. Think of it merely as a notice and warning. If you see this, immediately take action because things will only get worse from there. If charges are pressed, you're probably going to want to contact a lawyer (I seriously doubt Nintendo would ever go that far though).

 

So why would someone ever want to even consider making a fan-game or hack with those kinds of risks involved? Your only risk is actually losing all that hard work you put in...and probably never getting a job at Nintendo. Though from my point of view if someone is able to get 3 or 4 million players due to a well built game, I would actually consider hiring him as not only would he be really good at making games, the publicity level would also be quite high. Pokemon Reborn is a good example as if Ame started with Starlight Divide over making Pokemon Reborn, she wouldn't even have half as many gamers interested in her next game. You also gain experience in the Indy gaming industry. So there many things I learned about gaming from making the Hardcore mod of Reborn I never even knew about and learned from both my success and failures. The main reason so create a fan-game is that you're passionate about your idea. There's a chance, no, your game will be taken down in time, but that's a risk you have to accept to see your dream come true. 

 

Now we get into the "source" of this issue: Nintendo. I want to remove one fact or idea people may think the official Pokemon game developers have on fan-games. Developers do not necessarily hate fan-games. It'd be the same thing as hating a third party making a game based on their franchise. In one sense, you could view it as someone trying to steal their ideas to make a profit. In another sense, it could be viewed as flattery as imitation is the highest form of flattery. Many of these fans who make these fan-games are inspired by the Pokemon series and love them so much they are inspired to make their own fan-fiction of them. I tend to view developers are the ones passionate about making games as an art (not all are in it for the passion though) and believe the developers of Pokemon fit more into the second option over the first.

 

So if it's not the people making games, who's the one trying to stop the creation of fan-game? There are people who are more keen on making a profit off of video games who we call publishers. I'm sure the name Nintendo of America is one of the ones you can recognize. Publishers are generally the ones responsible for the marketing and advertising for games developed by developers. Their input does influence how a game is altered or changed so that it can sell better. This ranges from the creation of a game like Xenoblade Chronicles all the way down to censorship in a game so it's not all good or bad. Now let's take a step in a publisher's shoes. You have a franchise you spent years helping a company reach the point they are today. On the web, there is this game using the same elements to their game that you spent a long time working up. It's very, very popular and getting a lot of praise. What would you do?

 

Maybe this will help you understand: have you ever heard of a fan-game called Pokemon Full Moon. As a fan of either Reborn or Rejuvenation, didn't it kind of irk you that this game was using assets straight up from both games to create their own. Yes, they could get away with it whether or not they asked Ame or Jan for permission. I think they were heavily inspired by those games though in reality and wanted to create their own despite lacking some skills to create a game. This is the cycle I feel publishers are experiencing and I'm sure they are aware of many fan-games including Reborn. I'm sure someone is aware that Pokemon Insurgence is completed. So why haven't they acted?

 

I had to dig up some legal information regarding C&D. From a little bit of research, I calculate that it probably costs Nintendo of America $1000 just to send a single C&D letter to a fan-game or hack creator. I did a bit of research that it's $500 for a lawyer to write one so I doubled it assuming some research may be done looking into the game and how to approach it. So if you get a C&D letter, you could consider it an honor that Nintendo noticed your work and it's worth $1000 to stop. This could just be $500 or it could be more, but it does cost them money. The bigger reason most fan-games and hacks don't get affected is just in case Nintendo has to press charges. If they need to press charges, I did a search and it costs $325,000 just for charges of something worth less than a million bucks. Since it's Pokemon, it would probably cost them one million dollars just to sue. These aren't exact numbers, just enough to get an idea. So Nintendo has to decide to pick and choose which battles to fight. This also serves as a scare tactic as an attempt to stop other people from using their assets. Just know that they don't have enough money to take down every act of copyright infringement on the web (nobody does). Also, a C&D case from Nintendo happens every year and I think this year it was Pixelmon.

 

And if anyone says Nintendo is the only video game publisher to file C&D letters, Square Enix also has done it in the past:

https://en.wikipedia.org/wiki/Chrono_Resurrection

 

Now the biggest thing going on is the whole "Nintendo is so evil for doing this" or "Fan-game creators are uncreative as they can't make their own content and have to steal it" trying to label either side as the bad side. If I had to label a bad side, it would be the people saying those thing thus is where the analogy comes into play. Something that happened rather recently was NFL players kneeling during the Star Spangled Banner. They did this in order to help bring awareness to police abuse against blacks across the nation. Trump responded by saying this:

 

Spoiler

 

 

I do agree with one thing Trump said: it is disrespectful to not stand during that National Anthem as it is a form of respect to those that serve, have served, and died in order to preserve and protect our freedom. Those players took a knee to stand, no pun intended, up against police officers who do not properly do their job. In a sense, I could see how police could be categorized as military as they do serve and protect this country. And they do have a right not to stand for the anthem which they were exercising. Now replace Trump with Nintendo and Fan-game creators with the people who kneel. You can see how both sides here performed a wrong.

 

The people I'm probably the most upset (more disappointed) isn't Trump of the NFL players. I'm most disappointed in the people who went out and burned their jerseys usually on video. I know it's usually for publicity, but it doesn't matter. The moment you burn a jersey you are labeling the entire team that due to a few men expressing their freedom by unintentionally disrespecting the nation, as people who don't support, respect, or even love our nation. It's hard to explain, but it's like burning a copy of Sun and Moon due to Nintendo taking down Pokemon Uranium. If you don't agree with it, don't support it is all. Though if I was actually in the shoes of those football players, I'd be thinking about all the people I may be disrespecting such as the police officer or soldier somewhere who may die before the end of the Anthem. Two days ago a Police Officer died trying to protect citizens in Los Vegas. I'll admit that upon doing the Pledge of Allegiance, National Anthem, and the moment of silence thousands of times, my mind tends to drone off not thinking about the purpose of why I'm doing them. It makes you then wonder if it's more important to remember them and what they've done or simply follow a procedure thousands of times. Imagine burning a jersey due to a few individuals disrespecting a flag when it's possibly that they couldn't get the people who fought for the flag out of their head.

 

Don't get me wrong, I still believe it's very disrespectful not to stand for the anthem and shouldn't be tolerated, but I don't think it's justified to publicly burn jerseys due to it. It's just like pointing fingers at fan-game makers or Nintendo for doing what they're doing about them. Yes, I believe taking and using Nintendo's property is very wrong, but I do understand and respect people who put so much effort and passion to create something using them. I also respect Nintendo wanting to shut them down due to the need to make money. You can't make Pokemon fan-games with next Gen content if Game Freak doesn't have the money to do it. People can't or shouldn't get away with doing this so while I hate seeing C&Ds, they do serve as a reminder that people shouldn't be making a profit off of Pokemon, their creation. Also, profit doesn't always mean money. Hopefully I helped clear up a few things regarding copyright infringement. Now I pray that a war doesn't break out and I have to lock the thread.

 

Also if anyone is interested in editing to correct grammar, typos, and spelling errors, please let me know. I am going back through and starting to edit older ones, but it takes me about an hour to edit so yeah...

[Alistair]

I do agree with Nintendo when they try to stop people from directly making money using their intellectual property. I disagree with them however, when they issue C&Ds to fangame developers who are not making profit off of their games, like the Uranium team, Reborn team, Jan etc.

 

Why does Nintendo try to take these down? Atm I can see 2 main reasons: preventing indirect profit losses, and creative control over the franchise, the latter having an impact on the former.

 

Preventing indirect profit losses

 

The publishers of Pokémon games, namely in the US, Nintendo of America, view fangames as competition to their canon games. Competition means potential customers might turn to the free and arguably  better product instead of buying the Suns, Moons and other Ultras out there, which in turn means profit losses for Nintendo. Only, is that really how it works? Judging by how people around here talk about Reborn and canon games, I'm guessing they're enjoying both, for different reasons, and that playing one won't prevent them from buying/downloading the other. Free fangames can even have a potentially positive impact on people's interest in Pokémon as a whole. Let's take yours truly for instance; I don't have a 3DS. That means I'm not buying the recent Pokémon games. However, Reborn has had a wonderful effect; it kept me interested in the Pokémon universe. I'm trying to stay roughly up to date, and I'm not excluding buying Game Freak's games in the future. If it weren't for fangames, I wouldn't give a damn about Pokémon anymore. Nintendo should thank Ame for keeping me interested, if anything I know I'm just a single instance, but I doubt I'm alone in that case.

 

Tl;dr I believe Nintendo working under the assumption that fangames are competition and competition is bad is simply not true. Canon games and fangames fulfill different purposes and appeal to different demographics, some of which might fall out of the loop if it weren't for fangames. Nintendo is short-sighted when they feel their profits are 'threatened' by fangames.

 

Creative control over the franchise

 

This aspect is trickier and more interesting imo. Let's face it, canon games are mostly designed for children. Always have been, probably always will be. No matter how much 20+y.o. peeps like us like to cling to them. So, it's in Nintendo's best interest to make sure the Pokémon franchise still has 'kiddie/teen product' written all over it, so they can keep selling to the same types of people. With that in mind, it's not hard to see why they would want to take down games with weird radioactive fakemons, or people jumping from bridges/losing their heads, or (used to have) shiny sprites with bloodstains... It's not good for the brand image.

However, do fangames really have such an important impact on the fandom that they're worth spending millions in lawsuits? Even Reborn, which is getting pretty big, probably doesn't have that many players. At any rate, fangames are appealing to demographics that might have been somewhat left behind by canon games, simply because the kids of yesterday are adults today, and even though they still like canon games, many of them also crave something else.

 

Tl;dr even as far as creative aspects go, I believe fangames and canon games are complementary more than they are competitors. Nintendo is short-sighted when they only consider how people creating stuff without their control may hurt their brainchild. Full circle back to the first tl;dr above.

 

I understand how Nintendo wants to protect their profits, and are very ticklish when it comes to fangames. But I think they should go a bit easier with the C&Ds, because atm I don't think it does much good to them, only makes them look like control freaks. Besides, where should it stop? Fangames, remixes, fanarts too? Please give creators a break. They contribute to keeping the Pokémon world alive and beaming with energy and dynamism. It's good in the long term, not bad.

Everything above is just my opinion, which isn't particularly educated on the topic at hand, so feel free to take it with a grain of salt. Thanks for reading

Edited October 4, 2017 by Alistair
typos

[Noctelis]

No matter how hard people try, they can't get the newer game graphics in their fan games and are pretty much stuck with the GBA level of graphics.

The official games however, don't have this problem and are making newer games so different that it gives a completely different feel.

Only problem with official games is the story these days, it's getting far too predictable and sometimes they're even falling back on a game they already made (which isn't necessarily a bad with, example: ORAS), but now they're even making a "remake" of their latest game, no new pokemon, no new features, and most likely: not a very new story either (let's face it, if they changed the story so much that it could actually be seen as a new game, it wouldn't have the traditional pokemon story anymore).

Fan game developers however, need to come up with interesting features and stories in order to actually get people to play they're games and are also getting a lot more comments (negative or positive) which they get to read 1st hand as they don't have some BS team filtering it for them so they only read the best comments.

[Commander]

On 10/4/2017 at 6:00 PM, GS BALL said:

Damn! Stop Jynxing things! Stop that C&D and copyright talk, please, like, at once! Shhh, shush! Only bad things can happen from even thinking, let alone, mentioning those words... Brrr, i got shivers and goosebumps all over, now, look what you did

I don't care if that is a joke or serious. This is both rude and disrespectful and I will not tolerate seeing it a second time so consider this a warning. Fan-game developers have talked about C&D notices before (Reborn even had an April fools joke about it) and you are not one who is allowed to say whether or not someone is allowed to speak on the subject. It just kind of saddens me that people who write these articles whenever a game gets canceled points out that either side is the bad guys and Nintendo is not this big monster that people like you are treating it as.

 

Now with that out of the way let's get into the bigger responses:

 

@Alistair I think it's become a bigger problem now as Nintendo's activity in C&D hasn't dropped or increased really, but the fact that there's no middle ground anymore ever since Gen V came around. We've had this technology to make fan-games at this level for about I want to say 10 years yet Nintendo turned their head until rather recently to take them down and even then it's only been 3 games (1 being a hack) so far. Personally, I think it has to do more with licensing for third parties to make games over anything regarding the main-game series. The fan-games and their content level started to increase massively after the drought of spin-offs happened. The Stadium Series is now dead (Colosseum is part of this), the Mystery Dungeon series is now dead, the Ranger series is now dead, and I think the pinball series has been dead for a long time. With fans wanting to fill that void, they wanted to fill it with something hence the massive surge in popularity with the Uranium situation. That's an almost 1 million people pool market Nintendo doesn't want to take a chance losing which a game like Uranium could affect them spending more for spin-offs. That's the big focus of the C&Ds. Kind of hard to ask a third party to develop something when people could say "Why should I go try that game when there's a super popular one just as creative not charging anything?" which the third party could lose money.

 

I disagree with the creative content control though. In fact, I actually think parts of Nintendo endorse it seeing the creation of not only Mario Maker, but the whole art academy due to the sheer number of drawings on Miiverse. Seriously, looking at those pictures is in my top 10 things to do on a Wii U. Anyways, I've only seen one game developer actually top Game Freak/The Pokemon Company in terms of making a game. It's the creators of Pokemon Stadium. Pokemon XD comes in a close second though because dang they did so much. Pokemon Stadium was a game that included all Pokemon where you could run through various kinds of challenges but the biggest highlight were the minigames which you could hop on and fight against friends in. I've seen a couple fan-game makers get pretty high up there, but then you have to take graphics, story/animations, and gameplay into account to realize there's still a large gap. There's also fan-art and fan-fiction which are two other worlds which Nintendo hasn't touched or even tried to control (they did take ad revenue from Youtubers though which I do think was awful of them but they at least loosened up a bit).

 

I honestly think there actions are based on the 800,000 people. Times that by 20 bucks and that's 1.6 million dollars in revenue. That amount of revenue makes or breaks smaller companies. There are people who pay X amount of dollars (let's just say $100,000 plus a fixed percent of the revenue) to even make a Pokemon spin-off. I really think that's what this is all about and not about shutting down fan creativity. It's money that drives decisions though fans tend to exaggerate the actions and create hoaxes (which is what they want people to do because it creates a buzz giving them more attention and more people are aware about Pokemon Sun and Moon).

 

It's really hard to determine the true drive and intentions of when they act, but I really wish there was a middle ground we fans could work with. But alas, I don't think that's likely going to happen.

 

---------------------------------------------------------------

On 10/4/2017 at 9:20 AM, Noctelis said:

Only problem with official games is the story these days, it's getting far too predictable and sometimes they're even falling back on a game they already made (which isn't necessarily a bad with, example: ORAS), but now they're even making a "remake" of their latest game, no new pokemon, no new features, and most likely: not a very new story either (let's face it, if they changed the story so much that it could actually be seen as a new game, it wouldn't have the traditional pokemon story anymore).

Fan game developers however, need to come up with interesting features and stories in order to actually get people to play they're games and are also getting a lot more comments (negative or positive) which they get to read 1st hand as they don't have some BS team filtering it for them so they only read the best comments.

 

Don't take this personal but individual fan input and suggestions is not that good. These people usually have no experience in the field so an input could be to be frank, quite worthless as what they found unejoyable could be a really good idea or was there for a reason. The player's voice is important as if fan's aren't enjoying something than it is a big problem or issue. Generally the feedback developers get is people in a field and experience but the tradeoff is that they could be slightly out of touch with the current market as well they aren't the core age of the targeted audience. 

[Commander]

So sorry to double post but somebody actually DM'd me something very interesting regarding a kickstarter game that is called Super Mario RPG 2 which was taken down.

 

Now this response is very interesting:

 

Spoiler

 

Now I'm not sure what's going on regarding AM2R and Pokemon Prism but I actually am allowed to go into something interesting that has happened a long, long time ago. There are these things called Bootleg Pokemon games which were sold at unofficial vendors I know one of them was called Chaos Black. I don't know what Prism's plans were but donations kind of are a fancy way to basically pay for an illegal game. It's what I call a pelican effect. If you feed one, then another 20 will pop up. If they don't address it, they problem will only get worse so some people doing something for the right reasons need to get taken down.

 

What's really, really important is that Nintendo is actually listening to us fans. AM2R was not a waste of time as it is the reason the 3DS version of the game was made. I was pretty sure this was the reason and this pretty much confirmed it. Nintendo did not need to do this at all, but I'm really glad they actually properly responded to someone and it's an interesting read.