This was originally something I was going to talk about in Corporations have Rejected Copyright, back when that series was going to just be one long post (really!). But since I saw Nintendo apparently sued Palworld today, I wanted to put this up as background information.

You should definitely read You’ve Never Seen Copyright first, particularly the explanation of what patents are, because this conversation directly follows from that. The most important thing to pick up on is how the Doctrine of Equivalents lets companies use patents that are supposedly very specific to threaten other implementations that are similar, even if they aren’t using the patented design.

Game patents are revelatory, because game rules as a category explicitly do not fall within the realm of patent rights, but companies have managed to file and defend fraudulent patents anyway.

When I’m looking for an example of copyright abuse, I find myself returning to Nintendo a lot on this blog. Nintendo is a combination hardware/software/media franchise company, so they fit a lot of niches. They’re a particularly useful when talking about IP. Nintendo has constructed a reputation for itself as a “good” games company that still makes genuinely fun games with “heart”, yet it’s also infamously aggressive in executing “takedowns”: asserting property ownership of creative works other people own and which Nintendo did not make.

You’d think a company like Nintendo — an art creation studio in the business of making and selling creative works — would be proponents of real, strong, immutable creative rights. That, as creators, they’d want the sturdiest copyright system possible, not one compromised to serve the interests of any one particular party. This should be especially true for Nintendo even compared to other studios, given Nintendo’s own fight-for-its-life against Universal in its youth, and its relatively small position¹ in the market compared to its entertainment competitors Disney, Sony, and Microsoft.

But no, Nintendo takes the opposite position. When it comes to copyright, they pretty much exclusively try to compromise it in the hopes that a broken, askew system will end up unfairly favoring them. And so they attack the principles of copyright, viciously, again and again, convinced that the more broken the system is, the more they stand to profit.

Introducing Nintendo

Nintendo, even compared to its corporate contemporaries, has a distinctly hostile philosophy around art: if they can’t control something themselves, they tend to try to eliminate it entirely. What Nintendo uses creative rights to protect is not the copyright of their real creative works, it’s their control over everything they perceive to be their “share” of the gaming industry.

Let me start with a quick history, in case you’re not familiar with the foundation Nintendo is standing on.

Nintendo started in Japan making playing cards for the mob to commit crimes with. The company started manufacturing playing cards for the Yakuza to use for illegal gambling dens, and later transitioned to video games as a transition from gambling to “gaming”.

Nintendo got its footing overseas by looking to see what video game was making the most money in America, seeing it was Space Invaders, and copying that verbatim with a clone game they called “Radar Scope”:

Then, when that was a commercial failure, they wrote “conversion kit” code to turn those cabinets into a Popeye game, failed to get the Popeye rights they needed, and released their game anyway. They kept the gameplay and even the character archetypes the same, they just reskinned it with King Kong. They didn’t even name the protagonist after they swapped out the Popeye idea, so he was just called Jumpman.

This got Nintendo in trouble, and it was almost itself the victim of an abuse of IP law. “Donkey Kong” derived from King Kong, and even though the character was in the public domain, Universal Studios still sued Nintendo over the use. Ultimately the judge agreed with the Nintendo team and threw out the lawsuit, in an example of a giant corporation trying to steamroll what was at the time a small business with over-aggressive and illegitimate IP enforcement.

This was such an impactful moment for Nintendo that they took the name of their lawyer in the Universal Studios case — Kirby — and used it for the mascot of one of their biggest franchises. It was a significant move that demonstrates Nintendo’s extreme gratefulness — or even idolization — of the man who defended them against abuse of IP law.

You would hope the lesson Nintendo learned here would be from the perspective of the underdog, seeing as they were almost the victim of the kinds of tactics they would later become famous for using themselves. But no, it seems they were impressed by the ruthlessness of the abusers instead, and have since copied that playbook.

Everybody hates paying subscription fees — at this point most of us have figured out that recurring fees are miserable. And we’re right! But it’s worth sitting down and thinking through the problem, because it isn’t just “paying people money means less money for me”. Subscriptions in particular have become particularly unfair and exploitative, in a way that’s a fundamental attack on what payment and ownership even are.

Human Agency: Why Property is Good

or, “Gio is not a marxist, or if he is he’s a very bad one”

First: individual autonomy — our agency, our independence, and our right to make our own choices about our own lives — is threatened by the current digital ecosystem. Our tools are powered by software, controlled by software, and inseparable from their software, and so the companies that control that software control us. When software defines our lives and companies have the power to regulate that software, they have the power to control us.

I don’t like “events”. I don’t like it when things are limited with requirements of spacial presence and time. I don’t like experiences that only exist in one moment and then can never be relived. I don’t like ephemera. I prefer things. Toys I can play with, tools I can use, books I can read, movies I can watch, all at my own discretion. I have agency over my things. The actual lived experience from occurrence to occurrence is always different, of course, but the externalities can be repeated. I love being able to preserve the essence of a thing.

It’s one of the reasons I like computers. Or maybe it’s a psychological trait I developed because I had access to computers growing up. It probably is, I think. But either way, I love the purity of digital storage and interface. I love having an environment where experiences can be preserved and replayed at my discretion without my having to make any demands on other people.

And so that’s one of the reasons I love video games. Their mechanics are defined and can be understood and mastered. Their levels are defined and can be understood and mastered. Despite the extreme rates of “churn” — video games go out of print much faster than books or other physical media — the software is digital, and can be saved, stored, and replayed. I can look up the flash games I played as a kid and replay them, exactly as they were, and understand myself a little better for it.

Of course there are exceptions; it’s impossible to have a multiplayer game without an implicit demand that other people play with you. When an old game “dies”, it’s often not because the necessary hosting software is being intentionally withheld, but that there just isn’t a pool of people casually playing it like there used to be. That’s still a loss, and it’s sad, but that’s an unavoidable reality, and it’s not nearly as complete a loss as a one-off event being over.

So I don’t like when games force seasonal events on me. Limited-time events introduce something new, but they also necessitate the inevitable loss of that thing. And that assumes you were playing everything from the start; events introduce content that can be “missable” in a meaningful way, so if you’re weren’t playing the game at the right time, even if you own the game and finish everything you can access your experience can still be rendered incomplete. One of the things I like about games is that they’re safe, and the introduction of time-based loss compromises that safety.

That constant cycle of stress and pressure to enjoy things before they were lost is one of the main reasons I stopped playing Overwatch. I realized the seasonal events in particular weren’t good for me; they turned a game that should have been fun into an obligation that caused me anxiety.

But I’ve been thinking about this lately not because of Overwatch, but because Splatoon 3 is coming out soon. Splatoon isn’t nearly as bad as all that, I don’t think it’s deliberately predatory aside from Nintendo’s standard insistence on denying people autonomy. Splatoon 3 invokes that “people will stop playing Splatoon 2” loss, but even before that, Splatoon (a game I love) left a bad taste in my mouth because of its events.

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.