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Nintendo: It's about control, not piracy

  • Posted by GiovanH in ⚖ politics

Nintendo is trending on twitter today for yet another abuse of the legal system. Today, though, it’s not about a fan game, or intellectual property, or anything else Nintendo has something approaching a reasonable claim too — it’s all a sham.

The Big House — “the largest Super Smash Brothers event series in the fall” — choose to hold its regular Melee tournament as an online competition in 2020. The event was proudly announced on November 10th:

Even the year 2020 can’t hold us back. I’m excited to introduce The Big House Online, this year’s version of our cherished fall Smash major. It’ll take place on December 4-6, featuring both Melee and Ultimate.

On November 19th, just nine days later, The Big House was forced to make this announcement:

Nintendo issued the following statement about this specific cease and desist order, and their reasoning behind it:

…We have partnered with numerous Super Smash Bros. tournaments in the past and have hosted our own online and offline tournaments for the game, and we plan to continue that support in the future. Unfortunately, the upcoming Big House tournament announced plans to host an online tournament for Super Smash Bros. Melee that requires use of illegally copied versions of the game in conjunction with a mod called “Slippi” during their online event. Nintendo therefore contacted the tournament organizers to ask them to stop. They refused, leaving Nintendo no choice but to step in to protect its intellectual property and brands. Nintendo cannot condone or allow piracy of its intellectual property.

My head — and yours too, maybe — jumps to dozens of talking points: - The main technology being objected to (Slippi) is the network interface, which makes it possible to hold the event remotely and avoid spreading deadly illness during a pandemic - The importance of games archival and preservation - what’s legally defined as piracy can be morally justifiable

But here’s the thing: none of that matters. The idea that this is a conversation about piracy at all is a lie.

If you read Nintendo’s statement a few times, you’ll notice the word “piracy” is thrown in there at the end, but there are no actual complaints about software piracy to be seen. Games piracy (where game studios invest in, develop, and publish a game, and then people download free copies of the games instead of buying them) is a serious and complicated issue — just not one this story is relevant to.

The mod runs on the Dolphin emulator, which reads the game. This requires an “ephemeral copy”, just like all computers including actual Nintendo products do, but it certainly doesn’t somehow require you to pirate the game. It’s entirely possible for a tournament to purchase four melee discs and run melee on three machines. You can’t just send a cease and desist because you think somebody might play a pirated game.

The only possible objection left is whether or not Nintendo manufactured and authorized the client machines that run the game, which is a robustly answered at this point (including a similar case where Nintendo tried to argue that mods infringed on their IP and lost, soundly, with the court ruling that even selling mods for profit didn’t infringe on Nintendo’s rights.1). This matter of absolute control over the client is the only actual objection left, but Nintendo knows it’s in the wrong, so it shouts “piracy”. The hope is that the fact that a “mod” is involved at all is enough for you to shut down your brain and assume software piracy is the issue at hand here.

Weirdly, there’s actually a long history of Nintendo going after melee tournaments specifically. Nintendo has been fighting a bizarre campaign against Melee tournament play since 2013, when they tried to shut down the EVO 2013 melee tournament and livestream. The polygon article linked sheds some light about the horrifying amount of pressure Nintendo leveraged:

“It’s their IP, they can do whatever they want, and they didn’t present us with any options to keep it open, they were just ‘Hey, we want to shut you down.’” Cuellar said when asked about Nintendo’s basis for wanting to shut down the event. “And we kinda wigwammed our way through it and they were fine with just shutting down the streaming portion of the event. And that was that. And we were not going to press any further. Its their IP, we respect Nintendo’s decision to protect their IP, and we were going to comply with the legal department completely. So at that point it was over.”

So, then, what’s going on here? Why is Nintendo so trigger-happy over people playing their game?

Possibly due to its age, Nintendo has been less and less willing to see it played competitively. Melee was released on the GameCube back in 2001 and has been an incredibly popular tournament game ever since. Melee is completely out of print; Nintendo doesn’t sell it any more, nor does it sell GameCubes or controllers. The entire tournament economy relies on secondhand sales, so Nintendo doesn’t make any money off it directly.

Nintendo has a long history of demanding absolute control over its games and platforms like this. Often, as in this case, because user freedom has the potential to cost them money, but they’ve been known to throw legal tantrums for less obvious reasons too. This is just something deep in the corporate and legal philosophy of Nintendo, and something people have to know to be careful of.

So wait, then. If Nintendo is wrong about all of this, how are they able to shut down a perfectly legitimate event? Well, the answer to that is complicated, and involves the US legal system being broken, Nintendo being a giant corporation with a huge legal budget, and no other factors.

  1. Nintendo was so mad about that that it used its enormous legal influence to write new legislation in Japan to explicitly handle this case. In America, though, Nintendo has yet to carve out such a law. ↩

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