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Why Nintendo’s IP war over ‘Super Smash Bros. Melee’ is nothing new

When you think of Nintendo, you probably associate the term with a red-capped happy plumber, a pink floating puffball, or a mute grunting hero. What a lot of people don’t consider is that Nintendo also includes an army of honed lawyers – out after anyone and anything infringing upon the brand’s intellectual property (also known as IP).

Being a big Nintendo fan, it is always amusing to see the internet blow-up when the company crosses the line, as has happened lately. After all, the circumstances which have sparked the recent backlash are no different to actions that Nintendo has taken in the past. So, here is a brief history of a few of Nintendo’s – sometimes rather heated – legal battles.

The spark that ignited the latest round of bad PR for Nintendo was the latter’s choice to send a cease-and-desist order to Big House, an annual Super Smash Bros. tournament, over their decision to use a mod called Slippi, a tool necessary for Super Smash Bros. Melee to be playable online. The order was filed on the grounds of copyright infringement (specifically, infringement of the brand’s piracy policies), but what followed was a debacle. Many defended Big House, arguing that the mod was being used only because it was necessary for the Melee tournament to occur – since, due to government mandates against gatherings, it could not go on in person, and moving online was the only choice. Hence, the software was needed to make the online experience possible (and, importantly, it has been used by others before). Regardless of the circumstances, Nintendo did not take kindly to this choice.

It does feel weird that Nintendo would do this, as the mod has been used before for smaller tournaments. Smash fans were angered by this decision. But Nintendo did not retract its position, and nothing indicates that in its legal practices it will be treating this year as any different from usual, and thus be more lenient. Fans’ anger led to some teams in the Splatoon 2 North American Open tournament using the hashtag #FreeMelee when competing. Likely due to the participants’ decision to use the event to protest Nintendo’s behaviour, the tournament itself was later cancelled.

The Etika Joy-Con fiasco has been another recent problem for Nintendo, stemming from YouTuber and artist CptnAlex’s decision to run an Indiegogo campaign to sell Etika-themed shells for Joy-Cons (described as ‘ETIKONS’), with proceedings going to The JED oundation, a mental health awareness charity. All of this was to honour the memory of Etika himself (an American streamer who passed away in 2019). Nintendo issued another cease-and-desist to prohibit their sale, but argued that the issue of this order was not just due to the sale of these goods, but also due to other ‘violations’ by CptnAlex with regard to multiple Nintendo-themed products he was selling. 

Yet again, Nintendo attracted negative attention for their unemotional IP defence. Admittedly, the former could have partnered with the project, or instead cancelled it but donated money themselves, or just let it pass, but all this would not do: in Nintendo’s eyes, all infringements must be tackled. And whilst Nintendo fans are left disappointed, and Nintendo fails in the public’s eyes, the company is not bothered at all. Truthfully, it never has been, and examples, such as events in 1989, show this.

That year, Nintendo sued Blockbuster for photocopying Nintendo game manuals to accompany the rented titles. This escalated to Nintendo attempting to ban Blockbuster from renting video games at all. Blockbuster ended up winning, settled matters out of court, and agreed to use third-party manuals instead of copyrighted Nintendo ones. Luckily, the company was able to avoid the ban on renting video games at all. It is bewildering Nintendo got so heated over copied manuals.

And in recent years the company has not let up. In 2019/20, it secured an injunction against UK ISPs, forcing them to block access to third-party websites which themselves provided access to tools and software used to jailbreak the Switch. In 2017 it sued BigBen, a German games manufacturer that makes console accessories, for its Wii-related products. And in 2018, Nintendo sued the operator of two websites in Arizona responsible for selling pirate copies of Nintendo ROM files. The two parties eventually settled for $12 million.

Other examples abound: in 2019, the company sued RomUniverse, seeking millions in damages. In 2016 alone, Nintendo issued takedown notices for 562 fangames, and in March 2020, it shut down a Kickstarter for infringing Animal Crossing: New Horizons’ copyright (its themed passport holders strongly resembled those found in the 2020 game). In March, the brand also targeted the PS4 game Dreams due to some users creating projects within it that contained Nintendo-owned characters and elements; the company consequently contacted those same creators to ask for the removal of those elements. Finally, in June, the company launched a crackdown on modchips, citing DMCA anti-trafficking and anti-circumvention violations.

Nintendo then does not distinguish by context, size, or status. Rather, the company ruthlessly pursues a defence of its IPs, even in cases where it seems weird or heartless to us – the consumers

What we Nintendo fans sometimes forget is that Nintendo is a business, and that, as a corporation, its goal is to defend its properties and to make money. We only end up noticing the ‘controversial’ actions more, as we are accustomed to the idea that they are the good guys.

Nintendo are not the only ones being heavy-handed and particular with their legal threats. For twenty years they were banned from selling Kadabra Pokémon trading cards because Uri Geller objected that they were copying his identity with the Pokémon’s design. He has recently apologised and vowed to “release the ban” after receiving many emails and experiencing a change of heart. Unfortunately, releasing the ban is something we are unlikely to see Nintendo do with Melee or the Etika Joy-Cons, even in twenty years.

Nintendo has every legal right for their actions, even though as fans we may question the morality (Etika), the point (Melee), or the absurd overreaction (Blockbuster). Nothing will stop them. They will continue their ruthless IP defence, seemingly immune to criticism and uncaring about the context of their actions, so long as they believe they are doing their job. Even the latest uproar has blown over thanks to the winds of time and the community pivoting to the Cyberpunk 2077 and CD Projekt Red fiasco.

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