A Lawyer Explains the PointCrow Takedowns and the Legality of Mods
A Lawyer Explains the PointCrow Takedowns and the Legality of Mods
by Moonsight
18 Comments
Moonsight
Hi r/Nintendo!
I’m that lawyer who makes videos. I have come to deeply appreciate the community here at r/nintendo (and the mods, thank you all!), and so I thought I’d share this video here, for your consideration.
Although we fans love to see mods and content created of our favorite games, the fact of the matter is, legally speaking, all mods and most “content” are derivative works — meaning, the law sees us as infringing copyright!
Nintendo, and companies like Nintendo, allow for content creation by grace: not because they are obligated to do so.
Please let me know if you have any questions! I hope you will enjoy the video!
razorbeamz
It’s so funny how often complaints about Nintendo’s behavior boils down to “It’s unfair that Nintendo’s intellectual property isn’t public domain for everyone to do whatever they see fit with.”
Ilhan_Omar_Milf
Imagine being this cucked by capitalism
brzzcode
Excellent video with a lot of information that don’t even need a lawyer to say that but still good to see a lot more details
shame that a lot of people will never see it compared to how they saw this case.
BronzeHeart92
Hmm, sounds like this is yet another one of those internet ‘dramas’ that might be relevant for a while before fizzling out.
nintendo_nerd64
Thanks for making this kind of content for those of us that don’t have a law degree
witwebolte41
Don’t bother trying to reason with them, all they know is “nintendo bad” and they fall back on the “nintendo won’t let me buy old games” excuse while ignoring the current games that are impacted by illegal activities.
Nearby-Tumbleweed-88
Very good and informative video. A lot of what you say on the legality of modding are points I’ve tried to tell people in regards to the PointCrow drama (I’m not a lawyer but I’ve read a lot into the legality of modding since I started doing it a lot as a kid). Pretty much everyone responds with “he didn’t use their code, so it’s not violating copyright,” “mods are fair use because they’re transformative,” “he isn’t selling it, so they can’t actually do anything about it,” or “Nintendo is the only company doing this and they aren’t consistent about it so they should stop attacking him.” One guy even put on his best fake lawyer hat and legal speak to cite the case Nintendo lost against Game Genie as proof that courts rule in favor of modding and that Nintendo has absolutely no case against PointCrow and they have no legal ability to enforce their EULA because the term “intellectual property” has no legal definition so it invalidates their ability to defend their IP.
serenade1
Nintendo was nice on this PointCrow dude and only striked him twice, right? They should have made an example of him like the thief that is paying with his income now, but they seem satisfied with just pointing the trigger at the head.
TheUncleBob
Serious question, probably without a good answer – but what’s the line between using someone’s software to create one’s own artistic work vs. using someone’s software to create a copyright infringing piece of work?
If I take a piece of software, punch a bunch of buttons, and out comes a mostly unique expression… what have I created?
If I take Ocarina of Time, record me controlling Link so he does a little dance to the beat of the music, does Nintendo own that? Or is it my creation?
If I take SMB1, record me doing a world-record speed run – whose work is that?
If I take Microsoft Word, punch a bunch of buttons, and write a wholly unique story that uses their fonts, spacings, etc… can Microsoft claim ownership over it?
Solidus27
An excellent video for the many naive individuals on this forum who do not understand even the very basics or fundamentals of copyright and intellectual property law.
You can not fuck around with other people’s intellectual property without an explicit license. It really is as simple as this.
This guy doesn’t even really say anything too complex or nuanced here in this video. It is just very basic concepts in IP law that many individuals find impossible to understand
Zero sympathy for PointCrow. You infringe the law, you pay the price
MonochromeTyrant
I was sincerely hoping we’d see a video from you about this, and you did not disappoint. Thanks for continuing to provide legal breakdowns and analysis!
Purely-Pastel
I’m going to watch the video, but before I do I’ll just say that if PointCrow was earning revenue from his YouTube videos, then I can see the takedowns being valid. If he’s not, he’s not doing anything different than thousands of other people out there. People are always gonna do what they want in their games whether it’s been paid for or not. He’s explicitly said he doesn’t promote piracy and that he doesn’t make money off of his mods.
Nintendo is never fair when it comes to takedowns, like, if they are gonna take down this guys videos they mind as well go after everyone else too (obviously it can’t be 100% but still). Literally no one else is as aggressive as Nintendo- even fan games get taken down. No other company cares this much; is it all even necessary? But hey, I just wanna see what this video says from a different POV so we’ll see.
(For the record I don’t believe in pirating software from current gen systems and indie devs and I don’t really care if I get downvoted lol. This is just my opinion take it as you will)
BCProgramming
I think the whole scenario is so sad.
Though, perhaps not for any of the reasons people might think.
Removing the demonetized videos and then creating the “Nintendo took down my videos” video was a calculated business move to make money, not “raise awareness”.
Anybody who thinks the amount of money made from new subscribers, twitch subs, their merch store and patreon, etc. doesn’t absolutely dwarf the amount of money the videos that were demonetized were ever going to make is probably fooling themselves.
The worst part is watching these younger folks, who often are working one of their first jobs- some shitty retail or food service job- throwing away parts of their meager income on these sorts of people because they are so good at creating a “community” and thus a parasocial relationship, which makes you even easier to manipulate to give more money.
PointCrow LLC is a limited liability company established in 2020 which employs over a dozen people, and from which the streamer and sole proprietor likely draws a six-figure salary. He is not “the little guy” and doesn’t need people to support him through this terrible tragedy, except to raise the black numbers for this fiscal quarter, which was the plan all along.
DSMidna
Huh, I guess this explains why a few indie games explicitly allow you to use footage from their games in any way want. It may seem obvious and unnecessary, but it really isn’t.
Kujaku93
Very interesting video. Found yourself a new subscriber. I hope you do more of these video games vs law videos. It’s a niche space and nice to have expert opinions on
jakuri69
Based Nintendo.
The only reason this mod was created, was to farm ad revenue of the mod on youtube. While technically he isn’t profiting from selling the mod, he is profiting from videos of the mod. I hope he loses the case in court.
EllipsisBreak
I have to say, I’m a little bit concerned with the way you ventured outside your field of expertise and immediately zeroed in on a rather extreme interpretation that would give companies total power to decide what other devices you could use in combination with the ones they made. That would be bananas.
And if Nintendo really had a legal means to disallow the use of whatever unauthorized accessories they wanted, surely they would have used it against Game Genie! Or other products that followed in its wake, such as Action Replay, which arguably made themselves even more of a target by figuring out how to beat Nintendo’s security and make unlicensed Gamecube discs that work on unmodded systems, and releasing one at retail bundled with a media card reader that you could use to run basically anything.
I’m reminded of something else I learned recently. A lot of companies have greatly overstepped their bounds on the subject of when to void a warranty, [and in recent years the FTC has started to clamp down on that](https://www.ftc.gov/news-events/news/press-releases/2018/04/ftc-staff-warns-companies-it-illegal-condition-warranty-coverage-use-specified-parts-or-services). What I recently found out is that one of the examples they gave, *”This warranty shall not apply if this product . . . is used with products not sold or licensed by [company name].”*, was a word-for-word match for Nintendo’s warranty text. Nintendo changed it after that.
The overall impression I get is that companies have a tendency to claim more powers than they necessarily have, when there is no downside to doing so. They’ll stop doing it in a specific instance if someone powerful steps in and tells them to follow the rules, but until then, they’ll just say they have all the authority to decide everything you ever do, period. This muddies the waters around their terms of service text, and makes me constantly wonder about the reality behind these things.
18 Comments
Hi r/Nintendo!
I’m that lawyer who makes videos. I have come to deeply appreciate the community here at r/nintendo (and the mods, thank you all!), and so I thought I’d share this video here, for your consideration.
Although we fans love to see mods and content created of our favorite games, the fact of the matter is, legally speaking, all mods and most “content” are derivative works — meaning, the law sees us as infringing copyright!
Nintendo, and companies like Nintendo, allow for content creation by grace: not because they are obligated to do so.
Please let me know if you have any questions! I hope you will enjoy the video!
It’s so funny how often complaints about Nintendo’s behavior boils down to “It’s unfair that Nintendo’s intellectual property isn’t public domain for everyone to do whatever they see fit with.”
Imagine being this cucked by capitalism
Excellent video with a lot of information that don’t even need a lawyer to say that but still good to see a lot more details
shame that a lot of people will never see it compared to how they saw this case.
Hmm, sounds like this is yet another one of those internet ‘dramas’ that might be relevant for a while before fizzling out.
Thanks for making this kind of content for those of us that don’t have a law degree
Don’t bother trying to reason with them, all they know is “nintendo bad” and they fall back on the “nintendo won’t let me buy old games” excuse while ignoring the current games that are impacted by illegal activities.
Very good and informative video. A lot of what you say on the legality of modding are points I’ve tried to tell people in regards to the PointCrow drama (I’m not a lawyer but I’ve read a lot into the legality of modding since I started doing it a lot as a kid). Pretty much everyone responds with “he didn’t use their code, so it’s not violating copyright,” “mods are fair use because they’re transformative,” “he isn’t selling it, so they can’t actually do anything about it,” or “Nintendo is the only company doing this and they aren’t consistent about it so they should stop attacking him.” One guy even put on his best fake lawyer hat and legal speak to cite the case Nintendo lost against Game Genie as proof that courts rule in favor of modding and that Nintendo has absolutely no case against PointCrow and they have no legal ability to enforce their EULA because the term “intellectual property” has no legal definition so it invalidates their ability to defend their IP.
Nintendo was nice on this PointCrow dude and only striked him twice, right? They should have made an example of him like the thief that is paying with his income now, but they seem satisfied with just pointing the trigger at the head.
Serious question, probably without a good answer – but what’s the line between using someone’s software to create one’s own artistic work vs. using someone’s software to create a copyright infringing piece of work?
If I take a piece of software, punch a bunch of buttons, and out comes a mostly unique expression… what have I created?
If I take Ocarina of Time, record me controlling Link so he does a little dance to the beat of the music, does Nintendo own that? Or is it my creation?
If I take SMB1, record me doing a world-record speed run – whose work is that?
If I take Microsoft Word, punch a bunch of buttons, and write a wholly unique story that uses their fonts, spacings, etc… can Microsoft claim ownership over it?
An excellent video for the many naive individuals on this forum who do not understand even the very basics or fundamentals of copyright and intellectual property law.
You can not fuck around with other people’s intellectual property without an explicit license. It really is as simple as this.
This guy doesn’t even really say anything too complex or nuanced here in this video. It is just very basic concepts in IP law that many individuals find impossible to understand
Zero sympathy for PointCrow. You infringe the law, you pay the price
I was sincerely hoping we’d see a video from you about this, and you did not disappoint. Thanks for continuing to provide legal breakdowns and analysis!
I’m going to watch the video, but before I do I’ll just say that if PointCrow was earning revenue from his YouTube videos, then I can see the takedowns being valid. If he’s not, he’s not doing anything different than thousands of other people out there. People are always gonna do what they want in their games whether it’s been paid for or not. He’s explicitly said he doesn’t promote piracy and that he doesn’t make money off of his mods.
Nintendo is never fair when it comes to takedowns, like, if they are gonna take down this guys videos they mind as well go after everyone else too (obviously it can’t be 100% but still). Literally no one else is as aggressive as Nintendo- even fan games get taken down. No other company cares this much; is it all even necessary? But hey, I just wanna see what this video says from a different POV so we’ll see.
(For the record I don’t believe in pirating software from current gen systems and indie devs and I don’t really care if I get downvoted lol. This is just my opinion take it as you will)
I think the whole scenario is so sad.
Though, perhaps not for any of the reasons people might think.
Removing the demonetized videos and then creating the “Nintendo took down my videos” video was a calculated business move to make money, not “raise awareness”.
Anybody who thinks the amount of money made from new subscribers, twitch subs, their merch store and patreon, etc. doesn’t absolutely dwarf the amount of money the videos that were demonetized were ever going to make is probably fooling themselves.
The worst part is watching these younger folks, who often are working one of their first jobs- some shitty retail or food service job- throwing away parts of their meager income on these sorts of people because they are so good at creating a “community” and thus a parasocial relationship, which makes you even easier to manipulate to give more money.
PointCrow LLC is a limited liability company established in 2020 which employs over a dozen people, and from which the streamer and sole proprietor likely draws a six-figure salary. He is not “the little guy” and doesn’t need people to support him through this terrible tragedy, except to raise the black numbers for this fiscal quarter, which was the plan all along.
Huh, I guess this explains why a few indie games explicitly allow you to use footage from their games in any way want. It may seem obvious and unnecessary, but it really isn’t.
Very interesting video. Found yourself a new subscriber. I hope you do more of these video games vs law videos. It’s a niche space and nice to have expert opinions on
Based Nintendo.
The only reason this mod was created, was to farm ad revenue of the mod on youtube. While technically he isn’t profiting from selling the mod, he is profiting from videos of the mod. I hope he loses the case in court.
I have to say, I’m a little bit concerned with the way you ventured outside your field of expertise and immediately zeroed in on a rather extreme interpretation that would give companies total power to decide what other devices you could use in combination with the ones they made. That would be bananas.
And if Nintendo really had a legal means to disallow the use of whatever unauthorized accessories they wanted, surely they would have used it against Game Genie! Or other products that followed in its wake, such as Action Replay, which arguably made themselves even more of a target by figuring out how to beat Nintendo’s security and make unlicensed Gamecube discs that work on unmodded systems, and releasing one at retail bundled with a media card reader that you could use to run basically anything.
I’m reminded of something else I learned recently. A lot of companies have greatly overstepped their bounds on the subject of when to void a warranty, [and in recent years the FTC has started to clamp down on that](https://www.ftc.gov/news-events/news/press-releases/2018/04/ftc-staff-warns-companies-it-illegal-condition-warranty-coverage-use-specified-parts-or-services). What I recently found out is that one of the examples they gave, *”This warranty shall not apply if this product . . . is used with products not sold or licensed by [company name].”*, was a word-for-word match for Nintendo’s warranty text. Nintendo changed it after that.
The overall impression I get is that companies have a tendency to claim more powers than they necessarily have, when there is no downside to doing so. They’ll stop doing it in a specific instance if someone powerful steps in and tells them to follow the rules, but until then, they’ll just say they have all the authority to decide everything you ever do, period. This muddies the waters around their terms of service text, and makes me constantly wonder about the reality behind these things.