YouTuber Resists Nintendo DMCA Notice And Wins

Hot potato: Nintendo is so hawkish about its intellectual property that whenever we report someone doing something cool with, say, Mario Bros, we almost always include the obligatory note: “Let’s see how long the Nintendo lawyers let it stay online.” Most of the time it doesn’t take long and that’s it, but not this time.

October last year, video game history channel Did You KnowGames (DYKG) has published a 20-minute documentary about a previously unknown and unpublished Nintendo DS game, Heroes of Hyrule. As the name suggests, this was a Zelda spin-off planned for the popular Nintendo handheld. The video remained on YouTube for nearly 90 days before DYKG received a copyright warning and automatically removed it from public view on December 28.

The channel’s cameraman Shane Gill stated that the copyright strike accused him of using “unauthorized material” in his video. It can be assumed that this was a 22-page presentation document that DYKG received legally from former employees of Retro. Gill claims that he used the material for journalistic purposes and adhered to the doctrine of fair use. So he filed a counterclaim with YouTube talking about it.

Gill claims that Nintendo tried to remove the video because it didn’t like what his research found. However, in Nintendo’s defense, the content is almost 90 percent copyrighted, including entire pages of text from the submission document. This is not an open and closed case of fair use. However, the tone and purpose of the mini-documentary is clearly aimed at archiving the story, so it’s also not in favor of Nintendo.

In any case, according to its copyright policy, YouTube will automatically restore the video if the content creator files a counterclaim and the copyright holder does not file a claim within 10 business days. So Gill held his breath for two weeks, waiting to be served. Nintendo took no further action, so the video resurfaced online.

Despite the fact that Gill has never received subpoenas or other notices from Nintendo, this does not leave him out. The company’s legal team can still take action on content as the statute of limitations for copyright claims is three years. So sometime in the future we will hear from Nintendo again about this.

In the meantime, you should watch the DYKG video (above) while it’s online. This is a good job for anyone interested in retro games or Nintendo history. For those who prefer the TL;DR version, keep reading.

Metroid Prime developer Retro Studios introduced Heroes of Hyrule in 2004, the same year that the Nintendo DS debuted. Retro conceived it as a strategy game similar to Final Fantasy Tactics. The team submitted a proposal to Nintendo Software Planning and Development, who vehemently rejected the idea. The leaders of the SPD did not even give them a reason not to move forward.

“We sent it to SPD and got the answer right away, ‘No, you won’t.’ I still don’t know why,” former Retro game designer Paul Tozur told DYKG. “They just didn’t seem to be interested in that concept of gameplay, which is too bad. It was a really solid concept and had the potential to become something great.”

Image credit: BCC hardware

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