[tw04]

These might possibly be the worst analogies I've ever heard. This isn't the equivalent of folding up paper airplanes of Harry Potter and throwing them around the room.

This is the equivalent of making a youtube video of you reading through each chapter one-by-one using an e-reader that only works with pirated copies of the book. Nintendo is absolutely NOT the bad guy.

[PostOnce]

Except games are an interactive medium, and watching someone else play isn't the same as listening to someone else read a book.

[brador]

The final product would not exist with either part missing.

[PostOnce]

Now comes the argument about derivative vs transformative works.

This is not as black and white as you guys are making it out to be.

[brador]

Transformative works is a bandaid because we have no better solution to apportion how much value each party brings to the table.

[zimpenfish]

I agree that the Harry Potter airplanes analogy is dreadful nonsense but Nintendo are definitely in the wrong trying to claim that they're the only people allowed to perform their works in public.

[tw04]

We can agree to disagree that Nintendo is wrong for attempting to prevent people from advertising pirated copies of their games. It wouldn't be considered legal in any other medium, so I'm not sure why it should be here.

Nintendo didn't bring it down for displaying it publicly, Nintendo brought it down for modding a pirated rom:

>By making a derivative work using Nintendo's IP, and then displaying Nintendo's IP on your YouTube channel, you have violated Nintendo's exclusive rights.

[zimpenfish]

The sentence before says

> As the owner of the copyright in the games: Mario Kart 8, Super Mario World, and Pokémon, Nintendo has the exclusive right to perform the games publicly

(Which is all I said they were wrong to claim.)

[tw04]

And then you skipped the rest of the email, in which they said people are free to playback their games after they've signed an agreement stating they won't do it using pirated versions of the game.

>Nintendo encourages fan engagement on YouTube through the Nintendo Creators Program. Under the program, participants are granted a license to use Nintendo’s characters, games, and other intellectual property, subject to the Code of Conduct included with the agreement.

And unless you've got some case law to cite, you literally pulled the ""they have no right to say people can't play their games publicly" out of your ass. And quite frankly, case law disagrees with you. If it didn't, you'd be able to watch any and every NFL/MLB/NHL game on Youtube right now.

[zimpenfish]

The partner post from Shamus linked to this:

http://forums.shamusyoung.com/viewtopic.php?p=31058#p31058

Which (allegedly - I'm not a Japanese lawyer) quotes Japanese law -

> In Japan, "Works can be performed or exhibited freely if the performer is not remunerated, and the audience is not charged an admission fee." The source must be cited (Nintendo, or whatever).

Also (allegedly) Canadian law -

> In Canada, it is explicitly stated in 29.21 (1) It is not an infringement of copyright for an individual to use an existing work and disseminate fan created works.

[tw04]

> the performer is not remunerated

Except he's getting paid by Youtube, so scratch that off the list.