I realize people have all sorts of philosophical reasons for why pirating ROMs should be legal, and many of those reasons make sense (preservation, access in regions where legal purchase isn't possible, etc.) however, for the purposes of these legal actions specifically, the only thing that matters is what the laws are, and not what we wish they were instead.
So what are the laws?
If this YouTuber were directly selling the emulators (that include the pirated ROMs) or were indirectly profiting from their sale (affiliate links, commissions, or endorsement deals) then Nintendo would have the legal high ground.
However, that is not the situation at all. This YouTuber is merely providing information about products produced by entities that they have absolutely no affiliation or financial ties with. Their content is 100% fair use, and if they committed to a court battle they'd win.
Unfortunately, Nintendo is well aware that fighting them in court is a long, expensive process. You can counterclaim for all your legal expenses incurred defending their lawsuit should you win, but you need to be able to fund it yourself in the meantime, and very few private individuals can afford that. Nintendo would delay the process at every opportunity, making it as expensive as possible for them to dry and bleed them dry until they're essentially forced to accept a settlement.
This a fundamental flaw in intellectual property law. I wish there was more discretion for judges to simply throw out obviously frivolous claims, allow direct and immediate retaliation against obviously frivolous cease-and-desist filings, and bar entities from repeatedly harassing individuals with frivolous claims.
It's particularly upsetting that Nintendo specifically is so notorious for doing this, considering their initial success in America was made possible by a legal case in which they, quite correctly, proved fair use for King Kong after a lawsuit was filed by Universal.
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Re: Nintendo Is Now Going After YouTube Accounts Which Show Its Games Being Emulated
I realize people have all sorts of philosophical reasons for why pirating ROMs should be legal, and many of those reasons make sense (preservation, access in regions where legal purchase isn't possible, etc.) however, for the purposes of these legal actions specifically, the only thing that matters is what the laws are, and not what we wish they were instead.
So what are the laws?
If this YouTuber were directly selling the emulators (that include the pirated ROMs) or were indirectly profiting from their sale (affiliate links, commissions, or endorsement deals) then Nintendo would have the legal high ground.
However, that is not the situation at all. This YouTuber is merely providing information about products produced by entities that they have absolutely no affiliation or financial ties with. Their content is 100% fair use, and if they committed to a court battle they'd win.
Unfortunately, Nintendo is well aware that fighting them in court is a long, expensive process. You can counterclaim for all your legal expenses incurred defending their lawsuit should you win, but you need to be able to fund it yourself in the meantime, and very few private individuals can afford that. Nintendo would delay the process at every opportunity, making it as expensive as possible for them to dry and bleed them dry until they're essentially forced to accept a settlement.
This a fundamental flaw in intellectual property law. I wish there was more discretion for judges to simply throw out obviously frivolous claims, allow direct and immediate retaliation against obviously frivolous cease-and-desist filings, and bar entities from repeatedly harassing individuals with frivolous claims.
It's particularly upsetting that Nintendo specifically is so notorious for doing this, considering their initial success in America was made possible by a legal case in which they, quite correctly, proved fair use for King Kong after a lawsuit was filed by Universal.
However, as I said the laws are what they are.